State v. Lawless, A-89 September Term 2011; Supreme Court; opinion by Patterson, J.; decided July 22, 2013. On appeal from the Appellate Division, 423 N.J. Super. 293 (App. Div. 2011). [Sat below: Judges Cuff, Lihotz and Waugh in the Appellate Division; Judge Batten in the Law Division.] DDS No. 14-2-0738 [28 pp.]

N.J.S.A. 2C:44-1 established aggravating and mitigating circumstances for a court to consider when it sentences a convicted defendant. N.J.S.A. 2C:44-1(a)(1), the first of 13 aggravating factors, focuses on the nature and circumstances of the offense, including whether it was committed in an especially heinous, cruel or depraved manner. N.J.S.A. 2C:44-1(a)(2), the second aggravating factor, addresses the gravity and seriousness of harm inflicted on the victim.

Although both are frequently applied, each requires a distinct analysis of the offense for which the court sentences the defendant. At issue is whether a sentencing court identifying relevant aggravating factors under 2C:44-1(a), may consider the harm suffered by individuals who were physically injured by the defendant's conduct but were not the victims of the offense of which he was convicted.

Defendant John Lawless Jr. was charged with eight criminal offenses and several motor vehicle violations after a motor vehicle collision that killed another driver and seriously injured the decedent's wife and daughter, who were passengers in his car. Defendant's blood-alcohol content was .229.

Pursuant to a plea agreement, defendant pleaded guilty to aggravated manslaughter and driving while intoxicated and the other charges were dismissed. Thus, he was not convicted of any offense committed against either of the passengers.

Nonetheless, the court considered the harm suffered by the passengers as "harm inflicted on the victim" for purposes of 2C:44-1(a)(2) and relied on this factor, among others, in imposing sentence. The Appellate Division reversed and remanded for resentencing, ruling that the passengers' injuries were irrelevant to the sentencing determination.

On appeal, the state contends that 2C:44-1(a)(2)'s reference to "harm inflicted on the victim" should be read to include the full range of harm suffered by any individual that can be attributed to the defendant's conduct, regardless of whether that conduct resulted in a conviction.

Held: Given defendant's guilty plea to only aggravated manslaughter, the sole "victim" for purposes of N.J.S.A. 2C:44-1(a)(2) was the decedent. The harm inflicted on his wife and daughter is irrelevant to the application of aggravating factor two. That harm may be relevant to the application of 2C:44-1(a)(1) as part of the "nature and circumstances of the offense," provided that courts must avoid double counting any element of an offense as an aggravating factor. Thus, the court may consider 2C:44-1(a)(1) when defendant is resentenced.

N.J.S.A. 2C:44-1, which defines the aggravating and mitigating factors, is a primary component of a sentencing scheme whose goal is uniformity. Determining what aggravating and mitigating factors apply to a defendant is a critical step.

In applying the 2C:44-1 factors, courts must avoid "double counting" circumstances that the Legislature has already incorporated as an element of the offense. Injuries to victims of other crimes of which defendant was convicted, however, may be used as aggravating factors for sentencing of his particular offense. Thus, the court must make careful judgments about the relevancy of a particular circumstance to the 2C:44-1(a) and (b) factors. Consideration of an inappropriate factor is grounds for vacating a sentence.

The court says 2C:44-1(a) uses comprehensive language to define aggravating factor one. Under this factor, the court assesses the degree to which defendant's conduct has threatened the safety of its direct victims and the public. It focuses on the gravity of the defendant's conduct, considering both its impact on its immediate victim and the overall circumstances surrounding the criminal event. Thus, the court undertakes a thorough and broad inquiry under this factor.

N.J.S.A. 2C:44-1(a)(2) prescribes a more limited inquiry. It compels a pragmatic assessment of the totality of harm inflicted by the offender on the victim. Although "victim" for purposes of 2C:44-1(a)(2) is not defined, the statutory language denotes the direct interaction between offender and victim — the "harm inflicted" by the former on the latter. It focuses on the setting of the offense with particular attention to any factors that rendered the victim vulnerable or incapable of resistance at the time of the crime. Thus, says the court, the "victim" for purposes of factor two is the individual against whom the offense is committed.

Consistent with this principle, if a defendant is convicted of offenses against multiple victims, the harm inflicted on all such victims can be considered when the court applies aggravating factor two. "Victim" in 2C:44-1(a)(2), however, has never been held to extend beyond the direct victims of the offense or offenses for which the sentence is imposed.

Thus, the court concludes that, subject to the bar on double counting an element of the offense in the analysis, the harm inflicted on the victim of the offense for which the defendant is sentenced is relevant to aggravating factor two. However, if the defendant has not been convicted of offenses involving other victims, then the harm inflicted on those victims is excluded from consideration under aggravating factor two.

As to the state's argument that the court should adopt a concept of a "victim" analogous to that in the Victim's Rights Amendment to the New Jersey Constitution (VRA), N.J. Const. art. I, ¶ 22, and the Crime Victim's Bill of Rights, N.J.S.A. 52:4B-34 to -38, which would include the passengers, the court says the VRA is intended to guarantee crime victims and their families fairness, compassion and respectful treatment by the criminal justice system. Its expansive definition of "victim" incorporates family members who may stand as proxy for a deceased relative in the legal process. The Crime Victim's Bill of Rights similarly addresses the criminal justice system's treatment of victims of a crime.

N.J.S.A. 2C:44-1(a)(2) serves an equally important, but different purpose, focusing on the defendant's impact on the victim of the crime of which he was convicted. Its purpose is to focus the court on the circumstances of the crime. Accordingly, the expansive meaning of "victim" in the VRA and legislation does not apply here.

The court concludes that the plain language of 2C:44-1(a) requires that defendant be resentenced for the offenses to which he pleaded guilty. The court may consider the passengers' injuries as part of the "nature and circumstances of the offense" under 2C:44-1(a)(1). That harm, however, is irrelevant to 2C:44-1(a)(2) as the passengers were not "victims" of manslaughter within the meaning of 2C:44-1(a)(2).

Chief Justice Rabner, Justices LaVecchia, Albin and Hoens and Judge Rodriguez, temporarily assigned, join in Justice Patterson's opinion. Judge Cuff, temporarily assigned, did not participate.

For appellant — Carol M. Henderson, Assistant Attorney General (Jeffrey S. Chiesa, Attorney General). For respondent — John J. Zarych.