On February 2, 2018, Judge Fisher wrote for a three-judge appellate panel in the Atlantic County case of State v. William Liepe. The principal issue was whether the court’s 32-year aggregate sentence so excessive as to shock the judicial conscience and require appellate intervention. The defendant was 62-year-old and received the aggregate sentence as a result of a vehicular homicide and assault case that involved three victims and the imposition of three consecutive sentences.
In relevant part, the Court held as follows. As a result of the imposition of consecutive terms, defendant received an aggregate prison term of thirty-two years. With the impact of NERA, this sentence would prelude defendant’s eligibility for parole until he was eighty-nine years old.
The consecutive terms imposed were the product of the trial judge’s determination that State v. Carey compelled at least two consecutive terms. Carey, according to the trial judge, held that when an offender’s use of a motor vehicle produces multiple victims a sentencing court should “ordinarily impose at least two consecutive terms.” But Carey, in our view, did not obligate the imposition of consecutive terms here, let alone three consecutive terms and particularly when one of those terms was a sentence imposed for a first-degree offense.
To be sure, the Carey majority observed that “in vehicular homicide cases, the multiple-victims factor is entitled to great weight and should ordinarily result in the imposition of at least two consecutive terms when multiple deaths or serious bodily injuries have been inflicted upon multiple victims by the defendant.”. Sentencing courts, however, should not assume from this statement that there exists a presumption in favor of consecutive terms. Indeed, the Carey majority emphasized – apparently in response to concerns expressed by two dissenting justices – that it had not established a presumption or a per se rule and that the imposition of consecutive terms always lies in the sentencing judge’s discretion. Because we discern from the judge’s decision to impose consecutive terms that he believed Carey required consecutive terms – a conclusion the Court expressly rejected, – we remand for resentencing and for the judge’s exercise of his discretion, without an assumption of a per se obligation to impose consecutive terms.
On re-sentencing, the trial judge will likely impose two or three consecutive terms. Had s/he not made the statement regarding “what should ordinarily be imposed”, the aggregate 32-year sentence would have likely been affirmed. This is because even though our Supreme Court has delineated numerous factors to consider in deciding to impose consecutive or concurrent sentences, “multiple victims” is the factor that our Courts have given much greater weight to than all other factors combined. Paradoxically, a lack of “multiple victims” is not given nearly the same weight to benefit defendant’s in cases of unrelated victimless crimes.