Sentencing: Guidelines, Merger, Yarbough Factors and Beyond

Submitted by New Jersey Sex Crime Attorney, Jeffrey Hark

This blog is the last of three blogs discussing State v. Cawley, a case concerning a gruesome rape of a young woman. In previous blogs we have discussed rights to counsel, hearsay exceptions, and the fresh complaint doctrine. Today we move to sentencing.

Sentencing in State v. Cawley

When a court is reviewing the sentence of a trial court the standard is abuse of discretion. This means the sentence will stand unless the higher court finds the trial court abused its discretion in handing down the particular sentence. The higher court is looking to see if the trial court:

  1. followed sentencing guidelines
  2. facts and application of aggravating/mitigating circumstances based on credible evidence in record
  3. application of law to the facts does not shock the conscience

Sentencing Guidelines

Sentencing guidelines are guidelines made by a sentencing commission at the federal or state level. Guidelines were originally made to prevent sentencing disparities for the same offense when discretion was completely in the hands of a judge. The Federal Sentencing Guidelines are advisory but not mandatory. This means a federal judge doesn’t have to follow them but it is recommended. New Jersey judges are expected to follow the New Jersey Sentencing Guidelines. Aggravating factors are facts that may add to the sentence of a particular individual. For example a long criminal record is an aggravating factor. Mitigating factors are facts that may reduce a sentence. Being a first time offender is a mitigating factor. Downward departures are opportunities to sentence beneath the mandatory minimum. This may occur in a case where a defendant provided substantial assistance to an ongoing investigation. In the case at hand the trial court found the risk of re-offense to be high, likely because of the sexual nature of the crime, and thus counted it as an aggravating factor. Defendants facing trial for sexual crimes should understand that regardless of their criminal history there is a widely held belief within the criminal justice system that they are likely to re-offend. However the court must still provide an explanation which the trial court failed to do.

Merger Doctrine

It is also necessary to understand merger doctrine. Merger occurs when a defendant commits a single act that meets the elements of two separate crimes. For example someone punches an individual so hard that it leads to their death. In this case aggravated assault may be merged into a murder charge. If found guilty of murder the defendant won’t be sentenced for both assault and murder. However, this is just an example and the standard of merger is flexible.

Consecutive versus Concurrent Sentences

Also important is the distinction between consecutive and concurrent sentences. Concurrent sentences affect the defendant to the extent of the longer sentences and the fact he now may remain in prison even if one of the convictions is later reversed and vacated. But, consecutive sentences have a much greater impact on a defendant’s life because they must be served back-to-back. State v. Yarbough (1985) lays out factors for determining consecutive v. concurrent crimes and how to explain them during sentencing:

  1. No free crimes (all crimes must be punished)
  2. Reasons for consecutive or concurrent sentence must be separately stated
  3. Reasons should include facts such as:
    1. were objectives of different crimes independent of each other
    2. crimes involved separate acts of violence
    3. crimes committed at different times or separate places
    4. did any crimes involve multiple victims
    5. convictions are numerous
  4. No double counting aggravating factors
  5. Successive terms for same offense shouldn’t equal punishment for first offense
  6. Consecutive sentences shouldn’t exceed sum of the longest terms that could be imposed for two most serious sentences.

This means that if the same crime of armed robbery took place at two different convenient stores with an hour in between each robbery there would be support for imposing consecutive sentences for each robbery. But if there were four crimes committed with sentences of 10,15, 20, and 25 years then the consecutive sentence imposed should not be greater than 45 years. Cawley’s convictions were affirmed but because the court failed to provide Yarbough analysis before imposing consecutive sentences, nor apply merger, or explain the aggravating factors, the case was remanded for resentencing.

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