Returning to sentencing downgrades under the broader “in the interests of justice standard”, the defendant must provide compelling reasons for the downgrade in addition to, and separate from, the mitigating factors which substantially outweigh the aggravating factors. State v. Megargel, 143 N.J. 484, 496-502 (1996). The focus is not on the offender, but on the offense, its nature, severity, and surrounding circumstances. State v. Lake, 408 N.J. Super. 313, 326 (App. Div. 2009). A trial court should also state why sentencing the defendant to the lowest range of sentencing for the particular offense for which he was convicted, is not a more appropriate sentence than a downgraded sentence. Id.
Notwithstanding the Lake Court’s holding, the below-cited cases confirm that downgrades have been upheld even though the various courts’ focused their compelling reasons on the offender as opposed to the offense. Note however that most of the cases below are all non-binding unpublished opinions whereas Lake is binding and published precedent. Still, since the offender is an inextricable part of the offense, these two considerations will inevitably overlap. Indeed, the seminal Supreme Court case held that “facts personal to the defendant” were as important a consideration as “the degree of the crime” and “the surrounding circumstances of an offense” Megargel, at 500-501. With regard to the degree of the crime, since third and fourth degree crimes cannot be downgraded, second degree flat sentences are obviously the most amenable sentences to downgrades. See 2C:44-1(f)(2).
The reasons offered for downgrading an offense need not be as compelling as the reasons needed to overcome the presumption of imprisonment. State v. Evers, 175 N.J. 355, 389 (2003). Similarly, less compelling reasons are required for the downgrading of a second degree sentence without enhanced penalties. State v. Megargel, 143 N.J. 484, 502 (1996) The powers of reduction are both necessary and desirable features of a system of sentencing. Id. at 495.
If the record demonstrates compelling reasons or that there are no compelling reasons to support a downgraded sentence, an appellate court will exercise original jurisdiction and impose the appropriate sentence. See State v. L.V., 410 N.J. Super. at 108-109, 113 (App. Div. 2009) (exercising original jurisdiction to re-sentence defendant as a downgraded offender where remand would continue incarceration); See also State v. Lake, 408 N.J. Super. at 331 (reversing the downgraded sentence and exercising original jurisdiction to re-sentence in the second-degree range). The Appellate Division will remand the case back to the trial court for re-sentencing instead of exercising original jurisdiction when they hold that that the record needs to be amplified, as opposed to holding that there are a lack of compelling reasons to support a downgrade.
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