Justice LaVecchia concluded with the following in relevant part: Yarbough did not supplant the principle that courts have discretion over whether to impose consecutive sentences in appropriate cases. The Yarbough criteria were adopted to channel that discretion, not to withdraw it; they are qualitative, not quantitative, and applying them involves more than merely counting the factors favoring each alternative outcome. That caveat applies also to the “no free crimes” factor identified in Yarbough.
Courts must remain mindful that the discretion to sentence for multiple offenses runs in two directions, allowing concurrent sentencing as well as consecutive sentencing for the multiple offenses for which one defendant is being sentenced. Uniformity and predictability should not come at the expense of fairness and proportionality. A sentencing court’s decision whether to impose consecutive sentences should retain focus on “the fairness of the overall sentence.” Miller, 108 N.J. at 122.
The imposition of consecutive sentences here must be reversed due to the lack of a fairness assessment. The Court requires an explicit explanation for the overall fairness of a sentence, in the interest of promoting proportionality for the individual who will serve the punishment. Furthermore, although courts primarily evaluate aggravating and mitigating factors when determining the length of individual sentences, sentencing is a holistic endeavor. A court performing the fairness assessment must be mindful that aggravating and mitigating factors and Yarbough factors, as well as the stated purposes of sentencing in N.J.S.A. 2C:1-2(b), in their totality, inform the sentence’s fairness.
The sentencing court’s explanation of overall fairness provides a proper record for appellate review of the court’s exercise of discretion. Appellate courts employ the general shock-the-conscience standard for review of the exercise of sentencing discretion in the arena of consecutive-versus-concurrent sentencing. Although the standard is deferential, that review is critical: at present, no guidelines have been created by the Legislature or been recommended by the Legislature’s currently empaneled sentencing commission; appellate review of lengthy consecutive sentences is therefore the only check for pervading unfairness. The standard is not insurmountable, and appellate courts should bear that in mind when reviewing lengthy, aggregated consecutive sentences where the sentencing court has so few guideposts, and no outer limit, on which to rely.
The fairness of a sentence cannot be divorced from consideration of the person on whom it is imposed. Assessing a sentence’s overall fairness requires a real-time assessment of the aggregate sentence imposed, which perforce calls for consideration of a defendant’s age. Age alone cannot drive the outcome, and the fairness assessment does not call for speculation or divination about the defendant’s future behavior or life expectancy. But age is a fact that can and should be in the matrix of information assessed by a sentencing court, even in the deliberation over whether consecutive sentences are a fair and appropriate punishment — proportional for the individual being sentenced. The Court took this case because the overall length of this sentence gave serious concern. The Court remands for meaningful review and resentencing utilizing the principles contained in this opinion.
The trial court will likely impose the same sentence upon a second remand. If uniformity in sentencing is the paramount goal, there are cases that were upheld on appeal with a similar number of convictions for similar offenses that the State can point to in justifying the overall aggregate term.
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