State of New Jersey v. Patrick McFarlane

On May 4, 2008, defendant Patrick McFarlane and co

defendant Roderick Armstrong approached a group of men playing

dice in Trenton. When defendant displayed a revolver and

instructed the players to stay where they were, they scattered

in different directions. Defendant chased and fired his

revolver at Richard Mason, striking him in the back. After

Mason fell to the ground, defendant reached into his pockets and

took money, a watch, and a chain, and then fled the scene.

Mason was alive but struggling to breathe when police arrived;

he died thirty minutes after being transported to a local

hospital.

The Mercer County Grand Jury indicted defendant for first

degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); first-degree

felony murder, N.J.S.A. 2C:11-3(a)(3) and N.J.S.A. 2C:2-6;

first-degree armed robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2

6; and second-degree possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(a) and N.J.S.A. 2C:2-6. After a jury

trial, defendant was convicted of all counts.1

The record at sentencing reflects the following. The State

requested that the Court impose a sixty-year term of

imprisonment for the first-degree murder and a consecutive

twenty-year sentence for first-degree robbery. Therefore, the

aggregate sentence requested by the State was eighty years, both

with an eighty-five percent period of parole ineligibility under

the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defense

counsel requested a thirty-year term of imprisonment with thirty

years of parole ineligibility on the murder count, along with a

concurrent ten-year sentence on the first-degree robbery count,

subject to NERA.



The trial judge applied aggravating factor three, N.J.S.A.

2C:44-1(a)(3), noting that there was a risk the nineteen-year

old defendant would commit a future offense because he had five

petitions and two adjudications of delinquency as a juvenile2 and

five adult arrests, and had been incarcerated since age sixteen,

except for a four-month period during which he committed Mason’s

murder and another unrelated first-degree robbery. The judge

also applied aggravating factor six, N.J.S.A. 2C:44-1(a)(6),

finding that defendant’s prior criminal record was extensive and

serious because defendant was convicted of robbery as a juvenile

and theft by unlawful taking as an adult. In addition, the

judge applied aggravating factor nine, N.J.S.A. 2C:44-1(a)(9),

finding that there was a need to deter defendant and others from

violating the law because defendant targeted and shot the victim

in the back, robbed him, and left him to die.

After discussing the three aggravating factors, the judge

also gave “a small amount of weight” to mitigating factor six,

N.J.S.A. 2C:44-1(b)(6),3 assuming that “during his incarceration

the [d]efendant chooses to work and . . . the warden at the

state facility . . . take[s] one-third of his income and use[s]

that to reimburse any restitution the Court has ordered.”

After mentioning his assessment of the aggravating and

mitigating factors and merging the felony murder and unlawful

gun possession charges, the judge imposed a sixty-year sentence

on the first-degree murder count and a concurrent twenty-year

term on the first-degree armed robbery count, both subject to

NERA. The judge rejected the State’s request for a consecutive

sentence on the robbery count, in part, because defendant was

nineteen years old when he committed the crime and, after

serving fifty-one years in prison,4 would be at least seventy

years of age before becoming eligible for parole.

On appeal, defendant moved to supplement the record with

(1) a transcript of a status conference that took place thirteen

months later on January 14, 2015, in a different murder case,

State v. Brown, involving the same judge (the Brown status

conference); and (2) three judgments of conviction by the same

judge involving other defendants convicted of murder following

jury trials (the three JOCs).5



The transcript of the Brown status conference shows that

defendant Shaheed Brown rejected the State’s plea offer of

forty-five years for his first-degree murder charge, and the

judge then made the following statement:

I always give defendants convicted by a jury [of first-degree murder] a minimum of 60 years NERA, and you can check my record . . . . I know as much as Mr. Brown thinks 45 years NERA is unacceptable[,] my sentence, if he’s convicted, and Mr. Brown you’re presumed innocent, my sentence [] will be much more than 45 years NERA. It’ll be consecutive to the . . . [offenses] you’re convicted of by a jury. The three JOCs showed that the same judge sentenced other

defendants convicted by juries of first-degree murder -- Lamont

Richardson, Damien Johnson, and Brian Johnson -- to sixty-year

terms of imprisonment, subject to NERA.6

The Appellate Division affirmed defendant’s conviction and

sentence, concluding that the trial judge properly considered

and adequately explained his reasons for finding aggravating

factors three, six, and nine, as well as mitigating factor six.

In doing so, the panel explained that “the judge’s statement and

judgments of conviction in unrelated cases do not support

defendant’s claim that his sentence here was either excessive or

arrived at in an arbitrary fashion.” The panel did not analyze

the reasonableness of the sentencing determinations in the three

JOCs, in part, because defendant did not submit the transcripts

of those sentencing proceedings.

This Court subsequently granted defendant’s petition for

certification, limited to the issue of his sentence. 223 N.J.

276 (2015).

B.

Approximately four months after the Appellate Division

decided this matter, another panel decided State v. Richardson

in an unpublished opinion. In that case, defendant Lamont

Richardson appealed the same judge’s sixty-year sentence, citing

the Brown status conference statement and the three JOCs.

Although the Richardson panel affirmed the conviction and held

that the judge did not violate the sentencing guidelines, it

concluded that it could not “ignore the judge’s own statements

in open court, which suggests strongly that he may not undertake

the ‘individualized consideration during sentencing’ to which

each defendant is entitled under the Code.” (Quoting State v.

Jaffe, 220 N.J. 114, 122 (2014)). Accordingly, the panel

remanded for resentencing and required a detailed explanation of

the judge’s statement during the Brown status conference.

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At the remand hearing, the judge acknowledged that he made

“inappropriate” and “improper” remarks while being rushed during

the Brown status conference, but rejected the notion that he had

a policy of giving predetermined sentences to those convicted of

first-degree murder. The judge further explained that his

sentences were not “automatic”; he described the five-page

worksheet he used to assess and balance the aggravating and

mitigating factors and stated, “I strive to have every sentence

I impose to be in accord with the [Code of Criminal Justice] and

the directives of the Supreme Court . . . . [T]he court attempts

in every case, whether it’s a homicide or fourth degree, that it

undertakes an individualized consideration as required in every

sentence.”

II.

Resolving the divergence between the decisions of the

Appellate Division here and in the Richardson matter requires a

brief review of our sentencing jurisprudence.

In Jaffe, supra, we stated that “each ‘[d]efendant is

entitled to [an] individualized consideration during

sentencing.’” 220 N.J. at 122 (quoting State v. Randolph, 210

N.J. 330, 349 (2012)). This Court then explained that the

Legislature wanted trial courts to consider an individual’s

particular circumstances because “the Legislature listed as

‘general purposes’ of the sentencing statute . . .

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‘differentiat[ion] among offenders with a view to a just

individualization in their treatment,’ N.J.S.A. 2C:1-2(b)(6).”

Id. at 120-21.

Notwithstanding the need to consider an individual’s

particular circumstances, we also recognized that one of the

“paramount goals” of the Code of Criminal Justice “is to

eliminate arbitrary and idiosyncratic sentencing so that

similarly situated defendants receive comparable sentences.”

State v. Case, 220 N.J. 49, 63 (2014) (citing State v. Natale,

184 N.J. 458, 485 (2005)). Consequently, “‘the Legislature

codified to a certain extent the traditional emphasis on

individualized sentencing,’ resulting in a ‘tension between an

individualized sentencing approach on the one hand, and the

reforms aimed at sentencing uniformity on the other.’” Jaffe,

supra, 220 N.J. at 121 (quoting Randolph, supra, 210 N.J. at

346).

To resolve this tension and engender confidence in our

system of criminal sentencing, “the Code has established a

framework of structured discretion within which judges exercise

their sentencing authority.” Case, supra, 220 N.J. at 63. The

“structured discretion” established by the Code of Criminal

Justice compels the sentencing court to explain on the record

its analysis of the statutory aggravating and mitigating factors

“with care and precision” so as “[t]o avoid disparity in

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sentencing as the Legislature intended, to facilitate fair and

effective appellate review, and to ensure that the defendant,

the State and the public understand the reasons for the

sentence.” State v. Fuentes, 217 N.J. 57, 81 (2014). That is

accomplished, in part, by the application of Rule 3:21-4(g),

which provides that “[a]t the time sentence is imposed the judge

shall state reasons for imposing such sentence including

findings pursuant to the criteria for withholding or imposing

imprisonment . . . [and] the factual basis supporting a finding

of particular aggravating or mitigating factors affecting [the]

sentence[.]”

This Court paraphrased those principles as follows:

“[c]entral to the success of [the sentencing] process is the

requirement that the judge articulate the reasons for imposing

sentence.” Case, supra, 220 N.J. at 54. “Proper sentencing

thus requires an explicit and full statement of aggravating and

mitigating factors and how they are weighed and balanced.”

Randolph, supra, 210 N.J. at 348 (citing Natale, supra, 184 N.J.

at 488).

“The balancing process, however, is more than counting

whether one set of factors outnumbers the other.” Case, supra,

220 N.J. at 65 (citing Fuentes, supra, 217 N.J. at 72).

“Rather, the court must qualitatively assess the relevant

aggravating and mitigating factors, assigning each factor its

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appropriate weight.” Ibid. (emphasis added) (citing Fuentes,

supra, 217 N.J. at 72-73). Hence, a sentencing judge must

engage in both quantitative and qualitative assessments of the

aggravating and mitigating factors, and only then impose a

sentence consistent with the sentencing range outlined under our

Code of Criminal Justice.

III.

A.

With this sentencing jurisprudence in mind, we turn to

defendant’s contention that the trial judge arbitrarily

sentenced him to a sixty-year term without giving consideration

to the unique facts of his case, which defendant argues is

reflected in the judge’s statement in the Brown status

conference and his sentencing record. That in turn requires us

to briefly recount the pertinent aspects of the three JOCs

involving Lamont Richardson, Damien Johnson, and Brian Johnson.7

Lamont Richardson was sentenced approximately fifteen

months before defendant. Richardson was twenty-one years old at

the time of his offense, and was convicted of (1) first-degree

murder of his ex-girlfriend; (2) related unlawful possession of

7 The parties provided the three JOCs without the associated transcripts of the sentencing proceedings. The record therefore does not reflect what other assessments and considerations the judge may have applied at sentencing, other than the statutory aggravating and mitigating factors.

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weapons offenses; and (3) fourth-degree tampering with evidence.

The judge found aggravating factors one,8 three, six, and nine,

and no mitigating factors. After merging the weapons

convictions with the murder conviction and balancing the

aggravating and mitigating factors, the judge reviewed the

sentencing guideline range9 and concluded that the seventy-two

year term requested by the State was too high.10 Instead, the

judge imposed a lesser sixty-year term of imprisonment, subject

to NERA, and a concurrent one-year term of imprisonment with a

six-month period of parole ineligibility for tampering with

evidence.

Damien Johnson and Brian Johnson, co-defendants but not

brothers, were both sentenced approximately nine months after

defendant was sentenced. Damien Johnson was thirty-two years

8 Aggravating factor one concerns “[t]he nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner.” N.J.S.A. 2C:44-1(a)(1).

9 The sentencing range for first-degree murder is thirty years to life imprisonment, with a mandatory minimum of a thirty-year period of parole ineligibility, N.J.S.A. 2C:11-3(b)(1), and an eighty-five percent parole disqualifier under NERA, N.J.S.A. 2C:43-7.2(d)(1). A sentence of life imprisonment is deemed to be seventy-five years for the purpose of calculating the minimum term of parole ineligibility pursuant to a crime of the first degree. N.J.S.A. 2C:43-7.2(b).

10 Defense counsel did not request a specific sentence and stated, “there is a possibility for a better Mr. Richardson to become a part of our society.”

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old and Brian Johnson was thirty-eight when they committed

first-degree murder, N.J.S.A. 2C:11-3(a)(2) and (3), first

degree robbery, N.J.S.A. 2C:15-1, second-degree burglary,

N.J.S.A. 2C:18-2(b), and second-degree possession of weapons for

unlawful purposes, N.J.S.A. 2C:39-4. The judge found that

Damien Johnson had six prior non-violent drug convictions, and

that Brian Johnson had three prior convictions involving

violence. For both defendants, the judge found aggravating

factors one, three, six, and nine, and no mitigating factors.

The judge concluded that the aggravating factors “substantially

outweigh[ed] and preponderate[d] over the non-existent

mitigating factors,” and sentenced both defendants to sixty-year

terms of imprisonment, subject to NERA, on the first-degree

murder count, concurrent to a fifteen-year term of imprisonment

on the first-degree robbery count. Both defendants were also

ordered to serve a five-year term of parole supervision

immediately after completing their prison terms.11

B.

We acknowledge that the record of the sentencing hearing in

this matter does not reveal that the trial court violated the

11 Both Damien and Brian Johnson’s direct appeals are currently pending before the Appellate Division. Counsel for the defendants in those proceedings requested, among other things, that the matters be remanded for resentencing after this Court’s decision in this matter.

14

sentencing guidelines. Furthermore, the sentencing judge did

not make any improper comments during the course of this

proceeding. However, a remark in open court, even in a

subsequent, unrelated proceeding, that a judge “always”

sentences defendants convicted of first-degree murder to sixty

years in prison undermines public confidence that the unique

facts of a defendant’s case are considered before a sentencing

decision is made. A reasonable person might infer from the

judge’s statement during the Brown status conference that the

court arbitrarily imposes a predetermined sentence on those

convicted by a jury of first-degree murder.

While we accord substantial deference to sentencing

determinations and do not substitute our judgment for that of

the sentencing court, Fuentes, supra, 217 N.J. at 70, and while

we acknowledge the trial judge’s explanation of his sentencing

methodology given during the remand hearing in Richardson, we

find that the Brown status conference statement, particularly

when viewed in light of the trial judge’s sentencing record,

undermines public confidence in our system of criminal

sentencing. Accordingly, to preserve public trust in the

sentencing framework established by our Code of Criminal

Justice, we must reverse the judgment of the Appellate Division

and remand for resentencing by another trial judge of the Mercer

Vicinage. We offer no comment on the appropriate sentence to be

imposed on remand.

The judgment of the Appellate Division with respect to

sentencing is reversed and the matter is remanded for

resentencing, consistent with this opinion.