Justice Albin continued: In contrast, here, no fact found by the sentencing court required the imposition of a mandatory-minimum sentence. Judge Steele found three aggravating factors — the risk that defendant will reoffend, the substantial likelihood defendant was involved in organized criminal activity, and the need for deterrence; and two mitigating factors — defendant’s lack of a prior juvenile or criminal record and his conduct was the result of circumstances unlikely to recur. Judge Steele did not just quantify those factors but assigned each weight, and qualitatively evaluated and balanced them. Only after taking those steps did Judge Steele exercise her discretion and find clearly and convincingly that the aggravating factors substantially outweighed the mitigating factors in imposing a mandatory-minimum sentence within the statutory range. The aggravating factors were not elements of a crime but were traditional sentencing factors.
This is the precise type of permissible, discretionary sentencing envisioned by Blakely and Booker that does not run afoul of the Sixth Amendment. Defendant — like every citizen who is presumed to know the law — knew that conspiring to distribute a large quantity of cocaine exposed him to a potential sentence of ten years with a five-year parole disqualifier. See Blakely, 542 U.S. at 309. The sentence imposed — an eight-year term with a four-year parole disqualifier — fell within the range authorized by the jury’s verdict and the applicable statute.
Admittedly, without the finding of an aggravating factor — just a single step in the sentencing process — a mandatory-minimum term cannot be sustained under N.J.S.A. 2C:43-6(b). The same is true for a sentence at the top of the ordinary range under N.J.S.A. 2C:43-6(a)(2). This Court could not uphold, as reasonable, a sentence at the very top of the range for a drug offense without the finding of at least one aggravating factor. That is, if the defendant is a first-time offender, who is not likely to reoffend, and the need for deterrence is not present — the imposition of the most severe possible sentence would be arbitrary.
One cannot help from wondering if what really occurred here with such a harsh sentence for a first-time offender was a “trial tax.” This is a term that describes the handing down of the harshest possible sentence in order to punish the defendant for exercising his right to a jury trial, as opposed to pleading guilty and permitting the court and prosecution to dispose of a case without having to do the hard work associated with conducting a trial.
