The New Jersey Supreme Court continued in relevant part: However, it is factor three that contains the evaluative core to a Yarbough analysis: it identifies five sub-factors that generally concentrate on such considerations as the nature and number of offenses for which the defendant is being sentenced, whether the offenses occurred at different times or places, and whether they involve numerous or separate victims. Beyond listing those informative factors, though, Yarbough does not direct an outcome, remaining true to the Code’s failure to create either a presumption of consecutive or concurrent sentences for multiple offenses.
That lack of a direction for a starting assumption, to the extent that it is problematic for promoting uniformity in sentencing, is compounded by the elimination of Yarbough’s original factor six. Insofar as the Yarbough factors were created to work together as a cohesive whole, that whole was conceived of as including an overall outer limit — an ending assumption. Because that outer check no longer exists, the analysis of the remaining evaluative subfactors is unmoored to any starting or ending sentencing guidepost. Appellate review remains the final check on the discretion allotted to the sentencing court.
Thus, Yarbough’s second factor requires a sentencing court to place on the record its statement of reasons for the decision to impose consecutive sentences, which statement should focus “on the fairness of the overall sentence, and the sentencing court should set forth in detail its reasons for concluding that a particular sentence is warranted.” State v. Miller, 108 N.J. 112, 122 (1987). Here, the court did not include an explicit assessment of the overall fairness of imposing the sentence consecutively to defendant’s previously imposed forty-year sentence. An explicit statement, explaining the overall fairness of a sentence imposed on a defendant for multiple offenses in a single proceeding or in multiple sentencing proceedings, is essential to a proper Yarbough sentencing assessment. It is the necessary second part to a Yarbough analysis, as Miller emphasized, and it remains the critical remnant of accountability imposed by Yarbough, since the legislative elimination of the outer limit imposed by factor six.
The trial court’s repeated failure to include an explicit statement is costing our justice system a great deal of resources through repeated appeals to the Appellate Division and New Jersey Supreme Court. This is all the more troubling given the limited resources available in dealing with the extreme backlog of cases due to the COVID-related court closures.