Concurrent and Consecutive Sentences (Part 2)

The appellate panel continued in relevant part: In giving weight to the first Yarbough factor, i.e., “there are no free crimes,” the judge reasoned, “if all of these were to be run concurrently, it certainly would minimize the defendant’s criminal behavior, and certainly would send the wrong message to the public so when they have an opportunity to curb their behavior and they don’t, they should receive separate and distinct sentences.” Additionally, the judge determined defendant’s sentences should run consecutive to defendant’s Pennsylvania sentence because defendant “did not get the message after being arrested in New Jersey for criminal conduct, and instead continued to commit crimes in Pennsylvania” in December 2016, following his release from custody in New Jersey.

After imposing concurrent sentences for each batch of burglaries committed on a single day “because they continued relatively close in time, albeit, maybe not geographically . . . close,” the judge imposed the standard fines and ordered restitution for various victims. He also noted defendant would be eligible for parole in approximately “five years and four months.”

Defendant’s aggregate sentence, while harsh, does not shock our judicial conscience. State v. Tillery, (2019). But in an abundance of caution, we vacate the sentence and remand for resentencing, consistent with the Court’s guidance in Torres, to allow the judge to provide “an explicit statement, explaining the overall fairness” of the sentences imposed.

To the extent we have not addressed any remaining contentions, it is because they lack sufficient merit to warrant discussion. R. 2:11-3(e)(2). Affirmed as to defendant’s convictions and remanded for resentencing. We do not retain jurisdiction.

This remand may end up hurting the defendant procedurally. If this appeal were denied, he could then seek a further appeal to the New Jersey Supreme Court. Instead, the remand means that the trial judge will almost certainly re-affirm the decision some months from now. Then, additional months or years will pass before the case can be re-appealed to the appellate division. Additional months or years will then pass again before the case can be appealed to the New Jersey Supreme Court. All the while, the defendant will be in prison awaiting a final direct appeal decision. Only then can he begin asserting any post-conviction relief claims.