                                                     SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                           State of New Jersey v. Reinaldo Fuentes (A-18-12) (070729)

Argued September 9, 2013 -- Decided January 7, 2014

PATTERSON, J., writing for a unanimous Court.

         In this appeal, the Court reviews a sentencing court’s application of the aggravating and mitigating factors
in N.J.S.A. 2C:44-1(a) and (b).

          On July 1, 2009, police were summoned to a New Brunswick apartment which defendant Reinaldo Fuentes
shared with Adrian Bentazos. Officers found Bentazos lying on a bed in a rear bedroom, with his pants open and his
genitals exposed. Bentazos had suffered two stab wounds in his abdomen and multiple head contusions. In the
apartment, officers found a bloodstained knife, a damaged and bloodstained car stereo amplifier, and a small amount
of cocaine. Police traced Bentazos’s cellphone to Fuentes, who subsequently confessed to killing Bentazos.

          Fuentes was indicted for first-degree murder, third-degree possession of a weapon for an unlawful purpose,
fourth-degree unlawful possession of a weapon, and third-degree possession of a controlled dangerous substance.
He pled guilty to first-degree aggravated manslaughter. During his plea hearing, Fuentes explained that he was
awakened by Bentazos, who grabbed his neck and threatened to rape him. When Fuentes stood to defend himself,
Bentazos grabbed a knife. Fuentes repeatedly struck Bentazos with the amplifier, wrested the knife away from him,
and stabbed him twice. Fuentes knew Bentazos needed medical attention, but did not seek assistance. He agreed
that he acted recklessly and with extreme indifference to human life, admitted that he had acted out of “extreme
annoyance,” and acknowledged that his actions threatened and caused Bentazos’s death.

          The trial court sentenced Fuentes to a twenty-year prison term subject to an eighty-five percent parole
ineligibility period and a five-year period of parole supervision. Applying the aggravating factors found in N.J.S.A.
2C:44-1(a) and mitigating factors in N.J.S.A. 2C:44-1(b), the court found aggravating factor nine, “[t]he need for
deterring the defendant and others from violating the law,” N.J.S.A. 2C:44-1(a)(9), and assigned it “substantial
weight.” It found three mitigating factors, including factor eight, “[t]he defendant's conduct was the result of
circumstances unlikely to recur,” N.J.S.A. 2C:44-1(b)(8), to which it assigned “moderate weight.” The court
concluded that, although Fuentes’s imprisonment would impose a hardship on his family, the multiple mitigating
factors were substantially outweighed by the strength of the sole aggravating factor. Nine days later, the court held a
second sentencing hearing in order to state its finding with respect to an additional factor, aggravating factor one,
“[t]he nature and circumstance 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), which it had inadvertently
omitted from the first hearing. The court accorded moderate to significant weight to the factor, finding that Fuentes
used excessive force by stabbing and beating Bentazos beyond the level necessary for self-defense. The court
reiterated its earlier findings and did not amend the sentence.

         Fuentes appealed his conviction and sentence, arguing that the trial court impermissibly double-counted an
element of the offense of aggravated manslaughter in finding aggravating factor one, relied on facts inconsistent
with the basis of Fuentes’s guilty plea, gave improper weight to aggravating factor nine, and improperly balanced
the aggravating and mitigating factors. The Appellate Division rejected Fuentes’s arguments and affirmed his
sentence. The Court granted Fuentes’s petition for certification. 212 N.J. 431 (2012).

HELD: Because the trial court did not adequately explain its findings with respect to the aggravating factors, or its
balancing of the aggravating and mitigating factors pursuant to N.J.S.A. 2C:44-1(a) and (b), the matter is remanded
for resentencing.



                                                          1
1. Sentencing determinations are accorded deference, and a reviewing court must not substitute its judgment for that
of the trial court. When determining the appropriate sentence within the applicable statutory range, the trial court
must identify whether any of N.J.S.A. 2C:44-1(a)’s aggravating factors or N.J.S.A. 2C:44-1(b)’s mitigating factors
apply. Each factor found by the court must be supported by competent, reasonably credible evidence, and the court
must balance the aggravating and mitigating factors. The balancing process is case-specific, requiring the court to
qualitatively assess and assign the appropriate weight to each factor. The court must provide a clear and detailed
statement of reasons for imposing a particular sentence, including the factual basis supporting its findings with
respect to the aggravating and mitigating factors. This is necessary for effective appellate review. (pp. 13-18)

2. Aggravating factor one requires that the court consider “[t]he nature and circumstance 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). The trial court must review the severity of the crime and assess the degree to which the
safety of others was threatened. In doing so, the court must take care to avoid double-counting facts that establish
elements of the relevant offense. In order to convict a defendant of aggravated manslaughter, the State must prove
that the victim died due to the defendant’s reckless conduct under circumstances manifesting an extreme
indifference to human life. Thus, a trial court applying aggravating factor one must provide an analysis sufficient to
ensure reviewing courts that its application of the factor was not based on evidence necessary to prove the elements
of aggravated manslaughter, such as the victim’s death. Additionally, the court’s assessment of the nature and
circumstances of the offense must fairly reflect the record before it. (pp. 19-23)

3. Here, the trial court did not provide an adequate explanation of its reasons for applying aggravating factor one. It
failed to discuss the circumstances of the offense or to identify the supporting facts in the record distinct from those
necessary to prove elements of the offense. Since application of the factor was not supported by competent and
credible evidence, Fuentes must be resentenced. On remand, the court may apply aggravating factor one only if it is
supported by credible evidence. The court must provide a detailed explanation of its findings with respect to this
and any other factor applied. (p. 24)

4. Aggravating factor nine invokes “[t]he need for deterring the defendant and others from violating the law.”
N.J.S.A. 2C:44-1(a)(9). This requires the trial court to assess the risk of recidivism, as well as evaluate the
defendant in light of his or her criminal history. The factor’s deterrence component incorporates two related but
distinct concepts: the sentence’s general deterrent effect on the public and its specific deterrent effect on the
defendant. The latter is the primary focus of aggravating factor nine. (pp. 25-26)

5. Here, the question of specific deterrence is complicated by the trial court’s finding of mitigating factor eight,
which requires the court to conclude that the offense at issue was “the result of circumstances unlikely to recur.”
N.J.S.A. 2C:44-1(b)(8). Although case law reveals that aggravating factor nine and mitigating factor eight rarely
apply in the same sentencing, they are not inherently incompatible. In exceptional cases, even where the record
shows that the offense arose under circumstances unlikely to recur, a defendant could nonetheless pose of a risk of
recidivism warranting specific deterrence. Similarly, a finding of mitigating factor seven, lack of a criminal record,
N.J.S.A. 2C:44-1(b)(7), also does not negate a finding of aggravating factor nine. Here, as with aggravating factor
one, the trial court’s reasons for applying aggravating factor nine are insufficiently explained. If, on resentencing,
the court determines that this factor applies, it must address both general and specific deterrence. If it also finds
mitigating factor eight, it must explain how it reconciles those two findings. Finally, the court should explain in
greater detail its assessment of the weight assigned to each aggravating and mitigating factor, and its balancing of
those factors as they apply to Fuentes. (pp. 26-29)

          The judgment of the Appellate Division is REVERSED, defendant’s sentence is VACATED, and the
matter is REMANDED to the trial court for resentencing in accordance with the Court’s opinion.

        CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA and ALBIN, and JUDGE RODRÍGUEZ
(temporarily assigned) join in JUSTICE PATTERSON’s opinion. JUDGE CUFF (temporarily assigned) did
not participate.




                                                           2
                                           SUPREME COURT OF NEW JERSEY
                                             A-18 September Term 2012
                                                      070729

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

         v.

REINALDO FUENTES,

    Defendant-Appellant.


         Argued September 9, 2013 – Decided January 7, 2014

         On certification to the Superior Court,
         Appellate Division.

         Rochelle M.A. Watson, Assistant Deputy
         Public Defender, argued the cause for
         appellant (Joseph E. Krakora, Public
         Defender, attorney).

         Joie D. Piderit, Acting Assistant Prosecutor
         Special Deputy Attorney General argued the
         cause for respondent (Andrew C. Carey,
         Acting Middlesex County Prosecutor,
         attorney; Ms. Piderit and Brian D. Gillet,
         Assistant Prosecutor, on the briefs).

    JUSTICE PATTERSON delivered the opinion of the Court.

    In this appeal, the Court reviews a sentencing judge’s

application of the aggravating and mitigating factors prescribed

in N.J.S.A. 2C:44-1(a) and (b).       Defendant Reinaldo Fuentes

admitted to killing his roommate, Adrian Bentazos, in an

altercation that he claimed was precipitated by Bentazos’

attempt to sexually assault him while defendant was sleeping.


                                  1
In accordance with his plea agreement with the State, defendant

pled guilty to aggravated manslaughter, N.J.S.A. 2C:11-4(c), and

the other charges pending against him were dismissed.

    Consistent with the plea agreement, defendant was sentenced

to a twenty-year term of incarceration.       The sentencing court

initially found only one statutory aggravating factor, the need

to deter defendant and others, N.J.S.A. 2C:44-1(a)(9)

(aggravating factor nine).    It applied three mitigating factors:

the absence of a prior record of delinquency or criminal

activity, N.J.S.A. 2C:44-1(b)(7) (mitigating factor seven); that

defendant’s conduct was a result of circumstances unlikely to

recur, N.J.S.A. 2C:44-1(b)(8) (mitigating factor eight); and

that the imprisonment of the defendant would entail excessive

hardship to himself or his dependents, N.J.S.A. 2C:44-1(b)(11)

(mitigating factor eleven).    The court found that the single

aggravating factor substantially outweighed the mitigating

factors.    In a supplemental sentencing hearing, the court

amended its findings to add a second aggravating factor, the

nature and circumstances of the offense and the role of the

actor, N.J.S.A. 2C:44-1(a)(1) (aggravating factor one), but did

not alter defendant’s sentence.       The Appellate Division

affirmed.

    We reverse, vacate defendant’s sentence, and remand this

matter for resentencing.    We hold that the sentencing court did

                                  2
not adequately explain its findings with respect to aggravating

factors one and nine, or its balancing of the aggravating and

mitigating factors pursuant to N.J.S.A. 2C:44-1(a) and (b).       We

do not constrain the sentencing court from finding any statutory

aggravating or mitigating factor on resentencing.    We caution,

however, that an application of aggravating factor one must be

premised upon factors independent of the elements of the crime

and firmly grounded in the record.    Further, any determination

that aggravating factor nine and mitigating factor eight are

applicable to the same case should be specifically explained in

the court’s statement of reasons.    To achieve the Legislature’s

goal of avoiding sentencing disparity, and to ensure fair and

effective appellate review, sentences imposed pursuant to plea

agreements must be thoroughly explained on the record at the

sentencing hearing.

                               I.

    At approximately 10:30 a.m. on July 1, 2009, New Brunswick

police were dispatched to an apartment that had been shared by

defendant, then twenty years old, and Bentazos.     They were

summoned by Bentazos’ friend, who stated that when he arrived at

the apartment to help Bentazos move his belongings out of the

residence, he found Bentazos in a bedroom, unresponsive.    The

responding officers found the body of a man later identified as

Bentazos lying face up on a bed in a rear bedroom.    Although he

                                3
was fully clothed, his pants were unbuttoned and his zipper was

pulled down, exposing his genitals.   The officers noted that

Bentazos had two stab wounds to his abdomen and multiple head

contusions.   A search of the apartment revealed a broken and

bloodstained knife, a damaged and bloodstained car stereo

amplifier and a broken mirror, as well as a small amount of

packaged cocaine.

    After investigating the scene, the New Brunswick police

traced the victim’s cellphone, which was not found at the crime

scene, to an address later identified as the home of defendant’s

girlfriend.   There, Bentazos’ friend spotted defendant and

identified him to the officers as the victim’s roommate.    Police

called the victim’s cellphone, which rang in defendant’s shirt

pocket.   The officers approached defendant and told him that

they needed to speak with him about a homicide investigation.

Defendant agreed to speak with the police, was transported to

police headquarters and was advised of his rights pursuant to

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d

694 (1966).   He subsequently confessed to police that he had

killed Bentazos.

    The medical examiner’s autopsy of Bentazos revealed

evidence of blunt and sharp force traumatic injuries to the

victim’s head, and stab wounds to his neck, back and abdomen.

The autopsy determined the cause of death to be homicide.

                                 4
                                 II.

    Defendant was indicted for first-degree murder, N.J.S.A.

2C:11-3(a)(1) and (2), third-degree possession of a weapon for

an unlawful purpose, N.J.S.A. 2C:39-4(d), fourth-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(d), and third-degree

possession of a controlled dangerous substance, N.J.S.A. 2C:35-

10(a)(1).   The grand jury found as an aggravating factor that

defendant committed the offense “in an outrageously or wantonly

vile, horrible, or inhuman manner in that it involved torture,

depravity of the mind, or an aggravated assault on the victim,”

N.J.S.A. 2C:11-3(b)(4)(c) (incorrectly cited in the indictment

as N.J.S.A. 2C:11-3(a)(4)(c)).

    On July 2, 2010, defendant agreed to plead guilty to first-

degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), pursuant to

a plea agreement negotiated by his counsel and the State.       In

accordance with the plea agreement, the State agreed to dismiss

all other charges and to recommend a twenty-three year sentence.

Despite his stated intention to plead guilty, defendant did not

provide an adequate factual basis for his plea at his initial

plea hearing on July 2, 2010.    There, defendant admitted to

inflicting the injuries that caused Bentazos’ death in a fight

on July 1, 2009, and to striking Bentazos with an amplifier

after Bentazos threatened to kill him with a knife, but did not

expressly acknowledge stabbing the victim.    Defendant agreed

                                  5
that his conduct was reckless and that it demonstrated an

extreme indifference to the value of human life, but he

suggested that he had not exceeded the reasonable bounds of

self-defense and did not consider himself guilty.     Defense

counsel acknowledged that defendant failed to provide an

adequate factual basis for his guilty plea, and the court did

not accept the plea during the first plea hearing.

    On July 27, 2010, the trial court held a second plea

hearing.   This time, defendant provided a factual basis for his

guilty plea that satisfied the court.     He stated that in the

early morning of July 1, 2009, he was awakened by Bentazos,

whose pants were pulled down.   According to defendant, Bentazos

grabbed defendant’s neck and threatened to rape him.     Defendant

told the court that when he stood up to defend himself, Bentazos

grabbed a knife, so defendant struck Bentazos repeatedly and

excessively with an amplifier, wrested the knife away from

Bentazos and used it to stab him twice.     Defendant admitted that

he was aware that Bentazos was clearly in need of medical

attention, but that he did not call police or an ambulance.

Responding to his counsel’s questions, defendant agreed that he

had acted recklessly and with extreme indifference to human

life, that he had not acted in self-defense but “out of extreme

annoyance,” and that his actions both threatened and caused the

victim’s death.   After acknowledging his understanding of the

                                 6
plea form, his sentencing exposure and the immigration

consequences of his plea, defendant pled guilty to aggravated

manslaughter.

    Following his plea, defendant gave a presentence interview

in the presence of his counsel.       During the interview, which was

summarized in the presentence report that was part of the

sentencing record, defendant substantially repeated the account

of his offense that he had provided to the court at his second

plea hearing.   He placed greater emphasis, however, on the

conduct by the victim that, by defendant’s account, prompted the

attack.   Defendant stated that he was sleeping when Bentazos,

whom he had considered to be “like a brother,” woke him up and

grabbed him by the throat.    He said that Bentazos’ pants were

unzipped and lowered to the knees, and that Bentazos attempted

to sexually assault him.     According to defendant, he resisted

Bentazos’ advances, and then Bentazos grabbed a knife and

threatened to kill him.    Defendant said that he took the car

stereo amplifier and hit Bentazos several times with it.       He

said that he then took the knife from Bentazos, who was dazed

and bloody, and stabbed him twice in the abdomen, at which point

Bentazos fell onto the bed.

    On October 12, 2010, the trial court sentenced defendant to

twenty years’ imprisonment subject to the eighty-five percent

parole ineligibility period prescribed by the No Early Release

                                  7
Act (NERA), N.J.S.A. 2C:43-7.2, with a five-year period of

parole supervision as well as statutory fines and penalties.

The court noted the statutory sentencing range of ten to thirty

years for the first-degree offense of aggravated manslaughter.

It acknowledged that defendant had no juvenile adjudications,

prior arrests or adult criminal history, and that he had a one-

year-old daughter.    The sentencing court commented, however, on

the defendant’s admission that he had both struck the victim

with an amplifier and stabbed him several times.

    Applying the statutory factors set forth in N.J.S.A. 2C:44-

1(a) and (b), the trial court found a single aggravating factor,

aggravating factor nine, N.J.S.A. 2C:44-1(a)(9), and assigned it

“substantial weight.”    The court identified three mitigating

factors.    It accorded “substantial weight” to mitigating factor

seven, N.J.S.A. 2C:44-1(b)(7), and “moderate weight” to

mitigating factor eight, N.J.S.A. 2C:44-1(b)(8).    Finally, the

trial court found mitigating factor eleven, N.J.S.A. 2C:44-

1(b)(11), but did not identify the weight given to that factor.

It did, however, acknowledge defendant’s status as the father of

a young child, and the consequent hardship to defendant’s

family.    The trial court determined that although the mitigating

factors outnumbered the single aggravating factor, they were

substantially outweighed by the strength of the aggravating

factor.    Noting the presumption of reasonableness afforded to a

                                  8
negotiated plea, the trial court found the sentence to be within

the statutory range and consistent with the law and the

interests of justice.

       Nine days later, the trial court held a second sentencing

hearing to state its finding with respect to an additional

factor, aggravating factor one, N.J.S.A. 2C:44-1(a)(1), which it

had intended to address in the first hearing, but had

inadvertently omitted.    The court noted that the nature of the

offense should not be used to support an application of

aggravating factor one, but that defendant’s role and the nature

of his attack could be considered in the sentencing.     The court

accorded moderate to significant weight to aggravating factor

one.    It found that defendant had repeatedly stabbed the victim

and had continued to beat the victim “well beyond any self-

defense suggested.”     The court characterized the defendant as

using excessive force.    It then reiterated its findings as to

aggravating factor nine and mitigating factors seven, eight and

eleven, and did not amend defendant’s twenty-year sentence.

       Defendant appealed his sentence.   He argued that the trial

court’s finding as to aggravating factor one entailed

impermissible “double-counting” of an element of the offense of

aggravated manslaughter, that the court’s recitation of the

details of the attack was inconsistent with the factual basis of

defendant’s guilty plea, that the trial court gave improper

                                  9
weight to aggravating factor nine, and that the court had

improperly balanced the aggravating and mitigating factors of

N.J.S.A. 2C:44-1(a) and (b).   The State countered that the

court’s findings with respect to aggravating factors one and

nine were fully supported by the record, and that the finding as

to aggravating factor one did not involve impermissible double-

counting of the elements of aggravated manslaughter.     The

Appellate Division rejected defendant’s arguments, and affirmed

his sentence by an order dated April 17, 2012.

    We granted defendant’s petition for certification.         State

v. Fuentes, 212 N.J. 431 (2012).

                               III.

    Defendant argues that the trial court should not have

applied aggravating factor one, that it improperly weighed

aggravating factor nine and that it improperly balanced the

aggravating and mitigating factors.   He contends that

aggravating factor one, N.J.S.A. 2C:44-1(a)(1), should not apply

to his case because his offense, prompted by an attempted sexual

assault, was not among the most serious offenses in its class.

He also claims that aggravating factor one could not apply

because a jury could have convicted him of passion provocation

manslaughter, N.J.S.A. 2C:11-4(b)(2), had the case been tried.

Defendant disputes the trial court’s conclusion that, because he

repeatedly struck and stabbed the victim instead of using only

                                10
the measure of force necessary to defend himself, aggravating

factor one was implicated in this case.    Defendant also asserts

that the trial court predicated its finding of aggravating

factor one, in part, on the fact that the victim died,

notwithstanding the fact that the death of the victim is an

element of aggravated manslaughter.

    Defendant contends that the trial court found two statutory

factors that are incompatible: aggravating factor nine, N.J.S.A.

2C:44-1(a)(9), which may only be given substantial weight if

there is a need for specific deterrence of defendant himself,

and mitigating factor eight, requiring a finding that

defendant’s conduct was “the result of circumstances unlikely to

recur,” N.J.S.A. 2C:44-1(b)(8).    Defendant further argues that,

in light of his lack of a criminal record, the court’s

application of mitigating factor seven, N.J.S.A. 2C:44-1(b)(7),

contravenes its conclusion that there is a need for deterrence

in this case.   Finally, defendant contests the trial court’s

balancing of the N.J.S.A. 2C:44-1(a) and (b) factors, given the

number of aggravating and mitigating factors found by the court

and the weight accorded to each factor.

    The State argues that the trial court properly considered

each of the statutory factors, and that it appropriately

balanced them in accordance with 2C:44-1(a) and (b).     It

characterizes the trial court’s application of aggravating

                                  11
factor one as consistent with the grand jury’s finding of an

aggravating factor under N.J.S.A. 2C:11-3(b)(4)(c) when it

indicted defendant.   The State cites crime scene photographs,

which do not appear to have been part of the record before the

sentencing court, as well as other evidence, to show that

defendant’s offense was particularly brutal.    It dismisses the

significance of defendant’s self-defense justification as a

factor in sentencing, arguing that defendant received the

benefit of that justification when the charge was amended from

first-degree murder to aggravated manslaughter by virtue of the

plea agreement, and that defendant admitted to recklessly

causing the victim’s death under circumstances “manifesting

extreme indifference to human life.”    N.J.S.A. 2C:11-4(a)(1).

The State counters defendant’s assertion that the death of the

victim, an element of defendant’s offense, was improperly

double-counted in the court’s application of aggravating factor

one.    It argues that the cruel nature of defendant’s attack, not

its fatal result, prompted the sentencing court’s finding with

respect to this factor.

       The State further argues that the sentencing court’s

finding as to aggravating factor nine was properly premised on a

need for specific, as well as general, deterrence.    It contends

that defendant needs to be specifically deterred from reacting

violently to an unwanted sexual advance.    The State argues that

                                 12
the need for public safety and deterrence increases

proportionately with the seriousness of the offense, and

accordingly the first-degree offense of aggravated manslaughter

requires substantial deterrence.       It argues that the court’s

balancing of the aggravating and mitigating factors, which

generated a sentence in the middle of the statutory range for

this first-degree crime, was proper.

                                 IV.

    Appellate courts review sentencing determinations in

accordance with a deferential standard.      The reviewing court

must not substitute its judgment for that of the sentencing

court.    State v. O’Donnell, 117 N.J. 210, 215 (1989).     The

appellate court must affirm the sentence unless (1) the

sentencing guidelines were violated; (2) the aggravating and

mitigating factors found by the sentencing court were not based

upon competent and credible evidence in the record; or (3) “the

application of the guidelines to the facts of [the] case makes

the sentence clearly unreasonable so as to shock the judicial

conscience.”   State v. Roth, 95 N.J. 334, 364-65 (1984).      When

the trial court fails to provide a qualitative analysis of the

relevant sentencing factors on the record, an appellate court

may remand for resentencing.    State v. Kruse, 105 N.J. 354, 363

(1987).   An appellate court may also remand for resentencing if

the trial court considers an aggravating factor that is

                                 13
inappropriate to a particular defendant or to the offense at

issue.   State v. Pineda, 119 N.J. 621, 628 (1990).

    A sentence imposed pursuant to a plea agreement is presumed

to be reasonable because a defendant voluntarily “[waived] . . .

his right to a trial in return for the reduction or dismissal of

certain charges, recommendations as to sentence and the like.”

State v. Davis, 175 N.J. Super. 130, 140 (App. Div. 1980); see

also State v. Spinks, 66 N.J. 568, 573 (1975) (stating that “an

appellate court should ordinarily defer to the presumed

reasonableness of a bargained sentence”).   Even a sentence

recommended as part of a plea agreement, however, may be vacated

if it does not comport with the sentencing provisions of our

Code of Criminal Justice.   See State v. Sainz, 107 N.J. 283, 292

(1987) (noting that sentencing standards “apply as well to

sentences that result from guilty pleas, including those guilty

pleas that are entered as part of a plea agreement”).

    In devising the sentencing scheme set forth in the Code,

the Legislature’s “‘dominant, if not paramount, goal . . . [was]

uniformity in sentencing.’”   State v. Natale, 184 N.J. 458, 485

(2005) (quoting State v. Kromphold, 162 N.J. 345, 352 (2000)).

To minimize sentencing disparity, the drafters of our Code

replaced “the unfettered sentencing discretion of prior law with

a structured discretion designed to foster less arbitrary and

more equal sentences.”   Ibid. (quoting Roth, supra, 95 N.J. at

                                14
345) (internal quotations omitted).     The framers of the Code

sought to “establish uniformity by both structuring and

standardizing the sentencing courts’ discretion.”     State v.

Jarbath, 114 N.J. 394, 400 (1989).

       To that end, the Code, our case law and the court rules

prescribe a careful and deliberate analysis before a sentence is

imposed.   The foundation of that analysis is a thorough

understanding of the defendant and the offense.     Although a

court sentencing a defendant based upon a guilty plea must be

careful not to impose a sentence for an offense beyond the scope

of the plea, it is not limited only to the factual admissions

that comprise the basis for the plea.     Sainz, supra, 107 N.J. at

293.    Instead, “[a]t sentencing there should be presented ‘the

fullest information possible concerning the defendant’s life and

characteristics.’”     State v. Marzolf, 79 N.J. 167, 176 (1979)

(quoting Williams v. New York, 337 U.S. 241, 247, 69 S. Ct.

1079, 1083, 93 L. Ed. 1337, 1342 (1949)); accord Natale, supra,

184 N.J. at 472.     The court evaluates “a range of information

unconstrained by evidential considerations.”     State v. Randolph,

210 N.J. 330, 348 (2012) (citing Natale, supra, 184 N.J. at

486).   Thus, the sentencing court gathers information necessary

to assess the defendant’s history and characteristics, and to

understand the nature and circumstances of his or her crime.



                                  15
    To minimize disparity, a sentencing court exercises its

discretion in the structured setting prescribed by the Code.

Our statutes provide a “‘general framework to guide judicial

discretion in imposing sentences’ to ensure that similarly

situated defendants [do] not receive dissimilar sentences.”

Natale, supra, 184 N.J. at 485 (quoting State v. Hodge, 95 N.J.

369, 375 (1984)).     When an ordinary term of incarceration is

warranted, N.J.S.A. 2C:43-6(a) prescribes statutory ranges for

that term based upon the degree of the offense: ten to twenty

years for a first-degree crime, five to ten years for a second-

degree crime, three to five years for a third-degree crime, and

up to eighteen months for a fourth-degree crime.      N.J.S.A.

2C:43-6(a)(1)-(4).

    As it determines a defendant’s term of incarceration within

the statutory range for each degree of offense, the sentencing

court must first identify whether any of N.J.S.A. 2C:44-1(a)’s

thirteen aggravating factors and N.J.S.A. 2C:44-1(b)’s thirteen

mitigating factors apply.    Each factor found by the trial court

to be relevant must be supported by “competent, reasonably

credible evidence.”    Roth, supra, 95 N.J. at 363.    The court

must then balance the relevant aggravating factors and

mitigating factors.    The sentencing court does more than

quantitatively compare the number of pertinent aggravating

factors with the number of applicable mitigating factors; the

                                  16
relevant factors are qualitatively assessed and assigned

appropriate weight in a case-specific balancing process.      Kruse,

supra, 105 N.J. at 363; State v. Denmon, 347 N.J. Super. 457,

467-68 (App. Div.), certif. denied, 174 N.J. 41 (2002).

    Having balanced the relevant factors, the sentencing court

does not set the term of incarceration in accordance with an

“inflexible rule.”   Natale, supra, 184 N.J. at 488.     Instead,

one “reasonable” approach for sentencing judges is to use “the

middle of the sentencing range as a logical starting point for

the balancing process.”   Ibid.    So, for example, “if the

aggravating and mitigating factors are in equipoise, the

midpoint will be an appropriate sentence.”     Ibid.   Moreover,

“reason suggests that when the mitigating factors preponderate,

sentences will tend toward the lower end of the range, and when

the aggravating factors preponderate, sentences will tend toward

the higher end of the range.”     Ibid.

    At the time of sentencing, the court must “state reasons

for imposing such sentence including . . . the factual basis

supporting a finding of particular aggravating or mitigating

factors affecting sentence.”      R. 3:21-4(g); see also N.J.S.A.

2C:43-2(e) (requiring sentencing court to provide statement on

record of “factual basis supporting its findings of particular

aggravating or mitigating factors affecting sentence”).       A clear

explanation “of the balancing of aggravating and mitigating

                                   17
factors with regard to imposition of sentences and periods of

parole ineligibility is particularly important.”   State v.

Pillot, 115 N.J. 558, 565-66 (1989) (citing State v. Baylass,

114 N.J. 169, 173-74 (1989); Kruse, supra, 105 N.J. at 359-60).

That explanation should thoroughly address the factors at issue.

As this Court has noted, “[a]lthough our case law does not

require that trial courts explicitly reject every mitigating

factor argued to the court,” such a practice is encouraged, as

it “not only ensures consideration of every factor but also

demonstrates to defendants and the public that all arguments

have been evaluated fairly.”   State v. Bieniek, 200 N.J. 601,

609 (2010).

    A careful statement of reasons also facilitates appellate

review.   The trial court’s explanation of its reasoning “is

important for meaningful appellate review of any criminal

sentence challenged for excessiveness,” because the appellate

court “is expected to assess the aggravating and mitigating

factors to determine whether they ‘were based upon competent

credible evidence in the record.’”   Id. at 608 (quoting Roth,

supra, 95 N.J. at 364).   A clear and detailed statement of

reasons is thus a crucial component of the process conducted by

the sentencing court, and a prerequisite to effective appellate

review.

                                V.

                                18
    This appeal centers upon the trial court’s application of

two of the statutory factors, aggravating factor one, N.J.S.A.

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

1(a)(9).   We consider each in turn.

    Aggravating factor one requires the trial court to consider

“[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).    When applying this factor, “the sentencing court

reviews the severity of the defendant’s crime, ‘the single most

important factor in the sentencing process,’ assessing the

degree to which defendant’s conduct has threatened the safety of

its direct victims and the public.”     State v. Lawless, 214 N.J.

594, 609 (2013) (quoting Hodge, supra, 95 N.J. at 379).     As the

Court has held, “[t]he paramount reason we focus on the severity

of the crime is to assure the protection of the public and the

deterrence of others.     The higher the degree of the crime, the

greater the public need for protection and the more need for

deterrence.”     State v. Megargel, 143 N.J. 484, 500 (1996).

    When it assesses whether a defendant’s conduct was

especially “heinous, cruel, or depraved,” a sentencing court

must scrupulously avoid “double-counting” facts that establish

the elements of the relevant offense.     See State v. Yarbough,



                                  19
100 N.J. 627, 645 (1985); Kromphold, supra, 162 N.J. at 353.     As

this Court observed:

           [In Yarbough], we recognized that facts that
           established elements of a crime for which a
           defendant is being sentenced should not be
           considered as aggravating circumstances in
           determining that sentence. We reasoned that
           the Legislature had already considered the
           elements of an offense in the gradation of a
           crime.   If we held otherwise, every offense
           arguably would implicate aggravating factors
           merely by its commission, thereby eroding
           the basis for the gradation of offenses and
           the    distinction   between   elements    and
           aggravating circumstances.      In the same
           manner, double-counting of elements of the
           offenses as aggravating factors would be
           likely    to   interfere  with   the    Code’s
           dedication to uniformity in sentencing.

           [Kromphold, supra, 162 N.J. at 353 (internal
           citation omitted).]

    In appropriate cases, a sentencing court may justify the

application of aggravating factor one, without double-counting,

by reference to the extraordinary brutality involved in an

offense.   See O’Donnell, supra, 117 N.J. at 217.   In O’Donnell,

supra, the Court held that “cruel” conduct may give rise to an

aggravating factor in a manslaughter sentencing when the

defendant intended “‘to inflict pain, harm and suffering – in

addition to intending death.’”   Id. at 217-18 (quoting State v.

Ramseur, 106 N.J. 123, 208 (1987)); see also State v. Soto, 340

N.J. Super. 47, 54-55, 71-72 (App. Div.), certif. denied, 170

N.J. 209 (2001) (affirming application of aggravating factor one


                                 20
when trial court noted protracted suffering inflicted and brutal

killing of victim); State v. Mara, 253 N.J. Super. 204, 214

(App. Div. 1992) (affirming sentencing court’s finding that

aggravating factor one applied when, in aggravated assault case,

“the serious injuries were far in excess of that required to

satisfy” statutory elements).   A sentencing court may consider

“aggravating facts showing that [a] defendant’s behavior

extended to the extreme reaches of the prohibited behavior.”

State v. Henry, 418 N.J. Super. 481, 493 (Law Div. 2010) (citing

State v. Taylor, 226 N.J. Super. 441, 453 (App. Div. 1988)).

    In the present aggravated manslaughter case, the State was

required to prove that “[t]he actor recklessly cause[d] death

under circumstances manifesting extreme indifference to human

life.”   N.J.S.A. 2C:11-4(a)(1).    Thus, the sentencing court’s

application of aggravating factor one must be based on factors

other than the death of the victim and the circumstances

essential to support a finding that the defendant has acted with

extreme indifference to human life.     Such a finding requires a

nuanced analysis of the defendant’s offense, clearly explained

so that an appellate court may be certain that the sentencing

court has refrained from double-counting the elements of the

offense.   As the Appellate Division held in State v. Briggs,

effective appellate review cannot be achieved when there is

uncertainty “whether the court meant that [the defendant’s

                                   21
killing of the victim] was unusually brutal or cruel in nature.”

349 N.J. Super. 496, 505 (App. Div. 2002).    As the panel noted,

“[i]f the court meant that the aggravating factor was applicable

because a death resulted from defendant’s conduct, it erred in

applying the factor, since the death of the victim cannot be

double counted as an aggravating factor in a manslaughter case.”

Ibid. (citing Towey, supra, 244 N.J. Super. at 593 (“Both the

victim’s death and the recklessness of defendant’s conduct were

elements of the offense to which defendant pled guilty and,

thus, should not have been considered as aggravating factors in

imposing the base term.”)).

    The sentencing court must not only ensure that facts

necessary to establish the elements of the defendant’s offense

are not double-counted for purposes of sentencing, but that its

assessment of the “nature and circumstances of the offense”

fairly reflects the record before it.    N.J.S.A. 2C:44-1(a)(1).

In Jarbath, supra, this Court considered the application of

aggravating factor one in the setting of a second-degree

manslaughter case arising from the death of the defendant’s

infant son.   114 N.J. at 398.   It concluded that the trial

court’s application of aggravating factor one “conflict[ed] with

[its] acceptance of [the defendant’s] version that she dropped

the child accidentally,” and that the State’s proffer of a

different version of the death on appeal did not justify the

                                 22
sentencing court’s reliance on this factor.    Id. at 404.   Any

determination that the defendant’s conduct was “especially

heinous, cruel, [or] depraved” must be fully grounded in the

record before the sentencing court.    N.J.S.A. 2C:44-1(a)(1).

    These principles do not necessarily bar the application of

aggravating factor one to this or any other defendant convicted

of aggravated manslaughter.    In some settings, a court may

identify competent, reasonably credible evidence that the

defendant’s offense was “committed in an especially heinous,

cruel, or depraved manner,” or that the evidence otherwise

justifies application of aggravating factor one, without double-

counting the elements of the offense.    N.J.S.A. 2C:44-1(a)(1).

It is for the sentencing court to determine on remand whether

this is such a case.

    Moreover, a finding of aggravating factor one is not

precluded because defendant could have been convicted of passion

provocation manslaughter, N.J.S.A. 2C:11-4(b)(2), had he been

tried.   Given defendant’s guilty plea, no factfinder has

determined whether the evidence warrants a conviction for

passion provocation manslaughter, so defendant’s argument is

premised upon speculation.    The possibility that a jury could

have convicted defendant of passion provocation manslaughter in

a hypothetical trial does not preclude application of

aggravating factor one to defendant.

                                 23
     In this case, the court failed to adequately explain its

application of aggravating factor one to defendant.     Its

supplemental statement of reasons disclosed only that

aggravating factor one was given moderate to significant weight,

that defendant stabbed the victim several times and continued to

beat him well beyond what was necessary for self-defense, and

that defendant used excessive force.   The court neither

discussed in detail the circumstances of the offense nor

identified the facts in the record -- distinct from the facts

necessary to prove the elements of aggravated manslaughter –-

that supported its finding.

     Because the application of factor one was not supported by

competent and credible evidence in the record, defendant must be

resentenced.   On remand, the sentencing court may apply

aggravating factor one only if there is credible evidence in the

record to support the finding.   In its statement of reasons, the

court should provide a detailed explanation of its findings with

respect to this and any other factor applied.1


1
  Contrary to the State’s position, the grand jury’s application
of the aggravating factor set forth in N.J.S.A. 2C:11-3(b)(4)(c)
does not govern the sentencing court’s consideration of
aggravating factor one. N.J.S.A. 2C:11-3(b)(4)(c) requires a
determination that “[t]he murder was outrageously or wantonly
vile, horrible or inhuman in that it involved torture, depravity
of mind, or an aggravated assault to the victim.” If a jury
convicts a defendant at trial under N.J.S.A. 2C:11-3(a)(1) or
(2) and finds that one of the aggravating factors prescribed in
N.J.S.A. 2C:11-3(b)(4) applies, the sentencing court must
                                 24
                                VI.

    Aggravating factor nine invokes “[t]he need for deterring

the defendant and others from violating the law.”     N.J.S.A.

2C:44-1(a)(9).   The sentencing court’s determination is a

“qualitative assessment” of the risk of recidivism, but “also

involve[s] determinations that go beyond the simple finding of a

criminal history and include an evaluation and judgment about

the individual in light of his or her history.”     State v.

Thomas, 188 N.J. 137, 153 (2006).     “Deterrence has been

repeatedly identified in all facets of the criminal justice

system as one of the most important factors in sentencing,” and

“is the key to the proper understanding of protecting the

public.”   Megargel, supra, 143 N.J. at 501 (citing State in the

Interest of C.A.H. and B.A.R., 89 N.J. 326, 334 (1982)).

“[D]emands for deterrence are strengthened in direct proportion



sentence the defendant to a term of life imprisonment without
parole. This case was never tried, and no such determination
was made. Moreover, nothing in the statutory text or
legislative history of N.J.S.A. 2C:44-1(a)(1) suggests that
sentencing courts should rely upon grand jury findings regarding
the N.J.S.A. 2C:11-3(b)(4) aggravating factors in balancing the
aggravating and mitigating factors for purposes of sentencing.
Not only is the statutory language of N.J.S.A. 2C:44-1(a)(1)
distinct from that of N.J.S.A. 2C:11-3(b)(4)(c), but the record
before the sentencing court is necessarily different from that
considered by a grand jury, including the presentence report
prepared in accordance with Rule 3:21-2. See Randolph, supra,
210 N.J. at 348 (2012). Accordingly, the grand jury’s finding
of an aggravating factor under N.J.S.A. 2C:11-3(b)(4)(c) does
not compel the sentencing court to apply N.J.S.A. 2C:44-1(a)(1).
Moreover, the grand jury record is not before us.
                                25
to the gravity and harmfulness of the offense.”     C.A.H., supra,

89 N.J. at 337.

    For purposes of N.J.S.A. 2C:44-1(a)(9), deterrence

incorporates two “interrelated but distinguishable concepts,”

the sentence’s “general deterrent effect on the public [and] its

personal deterrent effect on the defendant.”     Jarbath, supra,

114 N.J. at 405 (citing C.A.H., supra, 89 N.J. at 334-45).        In

the absence of a finding of a need for specific deterrence,

general deterrence “has relatively insignificant penal value.”

Ibid. (citing State v. Gardner, 113 N.J. 510, 520 (1989)).        In

weighing the applicability of aggravating factor nine, the

sentencing court accordingly focuses on the need to deter the

individual defendant “from violating the law.”     N.J.S.A. 2C:44-

1(a)(9).

    In this case, the question of specific deterrence is

complicated by the trial court’s finding of mitigating factor

eight, which requires the sentencing court to conclude that the

offense at issue was “the result of circumstances unlikely to

recur.”    N.J.S.A. 2C:44-1(b)(8).    Defendant contends that a

sentencing court may never apply aggravating factor nine and

mitigating factor eight in the same case, or, in the

alternative, that a sentencing court may never give substantial

weight to aggravating factor nine when mitigating factor eight

is also being applied.

                                 26
    Because N.J.S.A. 2C:44-1’s statutory language does not

suggest, and we have never held, that aggravating factor nine

and mitigating factor eight are inherently incompatible, we do

not adopt such an inflexible rule.     Although the cases cited by

defendant, State v. L.V., 410 N.J. Super. 90 (App. Div. 2009),

certif. denied, 201 N.J. 156 (2010), Briggs, supra, 349 N.J.

Super. 496, and State v. Powell, 294 N.J. Super. 557 (App. Div.

1996), illustrate that aggravating factor nine and mitigating

factor eight rarely apply in the same sentencing, they do not

hold that the two factors are irreconcilable.    In L.V., supra,

the Appellate Division panel found no “overwhelming need to

deter” the mentally disabled defendant, who gave birth after

being sexually assaulted by her father and then threw the infant

out the window at her father’s direction.    410 N.J. Super. at

111 (emphasis omitted).   Reasoning that the defendant was

unlikely to “find herself in the same situation again,” the

court discounted specific deterrence in sentencing the

defendant.   Ibid.   Briggs, supra, in which the defendant stabbed

her former husband during an argument while both were

intoxicated, similarly involved an offender deemed by the court

to be unlikely to offend again.    349 N.J. Super. at 498-99, 505.

When remanding for resentencing, the panel in Powell, supra,

noted that specific deterrence was not a consideration because



                                  27
the “defendant was unlikely to commit another crime.”   294 N.J.

Super. at 567.

    In exceptional cases, even if the record demonstrates that

the offense at issue arose in circumstances unlikely to recur,

thus supporting a finding as to mitigating factor eight, a

defendant could nonetheless pose a risk of recidivism, requiring

specific deterrence within the meaning of N.J.S.A. 2C:44-

1(a)(9).   While such a case will be rare, we decline to hold

that aggravating factor nine and mitigating factor eight can

never apply in the same sentencing.

    We also decline to find that aggravating factor nine is

inappropriate in a case in which the defendant had no prior

record, and the sentencing court accordingly applies mitigating

factor seven, N.J.S.A. 2C:44-1(b)(7).   Neither the statutory

language nor the case law suggest that a sentencing court can

find a need for deterrence under N.J.S.A. 2C:44-1(a)(9) only

when the defendant has a prior criminal record.

    As with aggravating factor one, the sentencing court’s

reasons for applying aggravating factor nine are insufficiently

explained, and the application of this factor is not supported

by competent and credible evidence in the record.   If the court

determines when it resentences defendant that aggravating factor

nine applies, it should address both general and specific

deterrence pursuant to N.J.S.A. 2C:44-1(a)(9).    If it finds both

                                28
aggravating factor nine and mitigating factor eight, the

sentencing court should explain how it reconciles those two

findings.   Finally, the court should explain in greater detail

its assessment of the weight assigned to each aggravating and

mitigating factor, and its balancing of those statutory factors

as they apply to defendant.   To avoid disparity in 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, a trial

court should explain its analysis of N.J.S.A. 2C:44-1’s

aggravating and mitigating factors with care and precision.

                               VII.

    The judgment of the Appellate Division is reversed,

defendant’s sentence is vacated, and the matter is remanded to

the trial court for resentencing, consistent with this opinion.

     CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA and ALBIN, and
JUDGE RODRÍGUEZ (temporarily assigned) join in JUSTICE
PATTERSON’s opinion. JUDGE CUFF (temporarily assigned) did not
participate.




                                29
               SUPREME COURT OF NEW JERSEY

NO.   A-18                                     SEPTEMBER TERM 2012

ON CERTIFICATION TO           Appellate Division, Superior Court




STATE OF NEW JERSEY,

      Plaintiff-Respondent,

              v.

REINALDO FUENTES,

      Defendant-Appellant.




DECIDED                   January 7, 2014
               Chief Justice Rabner                            PRESIDING
OPINION BY            Justice Patterson
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY


                                    REVERSE/
CHECKLIST                            VACATE/
                                     REMAND
CHIEF JUSTICE RABNER                       X
JUSTICE LaVECCHIA                          X
JUSTICE ALBIN                              X
JUSTICE PATTERSON                          X
JUDGE RODRÍGUEZ (t/a)                      X
JUDGE CUFF (t/a)                -----------------------    --------------------
TOTALS                                     5




                                                      30
