Judges： Coleman, O'Hern
Filed Date： 4/20/1995
Status： Precedential
Modified Date： 10/19/2024
The opinion of the Court was delivered by
The central issue in this appeal is whether a second Graves Act offender may be sentenced to a mandatory extended term of imprisonment while the first Graves Act conviction is pending on appeal or the time to appeal that conviction has not expired. A second issue is whether defendant may have his sentence increased to an extended sentence following affirmance of the first Graves Act conviction without violating principles of fundamental fairness.
I
A jury found defendant guilty of first-degree robbery, a violation of N.J.S.A. 2C:15-1. In a presentence hearing conducted
In an unpublished opinion dated April 15, 1992, the Appellate Division affirmed defendant’s second robbery conviction. The court, however, vacated the sentence and remanded the matter for resentencing based on the Deputy Attorney General’s impression that defendant “must be resentenced because he was sentenced as a second Graves Act offender before the time to appeal his prior Graves Act conviction had expired.” We denied defendant’s petition for certification. 130 N.J. 393, 614 A.2d 616 (1992).
On remand, the trial court resentenced defendant on July 10, 1992, to an ordinary prison term of fifteen years with a five-year term of parole ineligibility. The sentence was made to run consecutive to the sentence imposed for the first Graves Act robbery. At the time of the resentencing, the trial judge apparently was unaware the Appellate Division had affirmed the first Graves Act conviction eighty-seven days earlier in an unreported decision dated April 14, 1992. Indeed, counsel for defendant informed the judge, “I believe that appeal is still pending even as we speak.” Without intending any criticism, we note that this oversight may have been caused by the fact that neither of the Appellate Division decisions mentioned the other, even though both were decided by the same judges and filed one day apart.
The Appellate Division affirmed the reimposition of the mandatory extended term. 273 N.J.Super. 157, 641 A.2d 549 (1994). The majority opinion ruled that in sentencing a second Graves Act offender whose prior Graves Act conviction is pending on appeal, the court must impose initially an ordinary prison term because N.J.S.A. 2C:44-4b directs that a conviction is not to be considered “prior” before “the time to appeal has expired.” Id. at 160, 641 A.2d 549. The majority further held that once the prior Graves Act conviction is affirmed, the State is entitled to have the sentence increased to an extended term. Ibid. The court reasoned that the ordinary sentence is rendered illegal by the affirmance of the prior Graves Act conviction, and an illegal sentence may be corrected at any time. Ibid, (citing Rule 3:22-2(c)); State v. Kirk, 243 N.J.Super. 636, 581 A.2d 115 (App.Div.1990)). The court found that correcting the illegal sentence did not violate considerations of fundamental fairness in view of the legislative mandate.
In a concurring opinion, Judge Stern disagreed with the rule of law announced by the majority. 273 N.J.Super. at 161, 641 A.2d 549. He found no statutory authority for the proposition that a legal ordinary Graves Act sentence may later be increased to an
Even though Judge Stern disagreed with the rule announced in the majority decision, he concurred in the judgment of the court based on his conclusion that the imposition of the Graves Act extended term under the circumstances presented did not violate defendant’s due-process or double-jeopardy rights. Id. at 164, 641 A.2d 549. Relying on State v. Rodriguez, 97 N.J. 263, 271, 478 A.2d 408 (1984), he reasoned that because defendant’s initial appeal challenged the conviction itself as well as the sentence, defendant had ho legitimate expectation of finality with respect to his sentence. 273 N.J.Super. at 164, 641 A.2d 549. Hence, the majority and concurring opinions agreed that imposition of the mandatory extended term, once the prior conviction had been affirmed, did not infringe defendant’s constitutional rights. Id. at 165, 641 A.2d 549. We granted certification, 137 N.J. 310, 645 A.2d 139 (1994). We affirm the sentence imposed, but we reject the sentencing procedure approved by the Appellate Division.
II
This case requires us to resolve the tension between two statutes, N.J.S.A. 2C:43-6c and N.J.S.A. 2C:44-4b, which touch upon the legislative intent to require mandatory terms of imprisonment for some repeat offenders who use or possess firearms during the commission of certain offenses. Those statutes must be analyzed against the backdrop of the well-established principle
The Graves Act directs that under some circumstances a defendant who has a prior Graves Act conviction must be required to serve an extended sentence. The Graves Act mandatory extended-sentence provision, N.J.S.A. 2C:43-6c, provides:
A person who has been convicted of an offense enumerated by this subsection and who used or possessed a firearm during its commission, attempted commission or flight therefrom and who has been previously convicted of an offense involving the use or possession of a firearm as defined in 2C:44r-3d., shall be sentenced by the court to an extended term as authorized by 2C:43-7c., notwithstanding that extended terms are ordinarily discretionary with the court.
N.J.S.A 2C:44-4b defines “prior conviction of a crime” as follows:
An adjudication by a court of competent jurisdiction that the defendant committed a ei-ime constitutes a prior conviction, although sentence or the execution thereof was suspended, provided that the time to appeal has expired and that the defendant was not pardoned on the ground of innocence.
Defendant argues that the plain language of N.J.S.A 2C:44-4b demands that a conviction cannot be considered “prior” for purposes of enhanced sentencing under the Graves Act unless “the time to appeal [that prior conviction] has expired.” He claims further that a literal reading of N.J.S.A 2C:44-4b is supported by State v. Mangrella, 214 N.J.Super. 437, 445, 519 A.2d 926 (App.Div.1986), certif. denied, 107 N.J. 127, 526 A.2d 194 (1987). As a corollary, defendant asserts that the failure of the Legislature to act to amend N.J.S.A. 2C:44-4b following Mangrella is indicative of the Legislature’s approval of that decision’s application of N.J.S.A. 2C:44-4b.
Mangrella held that chronologically sequential convictions (first offense must be the first conviction or judgment) are not required for imposition of discretionary sentence-enhancement as a “persistent offender” under N.J.S.A. 2C:44-3a. Id., 214 N.J.Super. at 445, 519 A.2d 926. In that discretionary sentence enhancement
It is well established that in construing a statutory provision, courts must seek to fulfill the statutory objective “so far as the terms of the legislation and proper consideration of the interests of those subject to it will fairly permit.” State v. Gill, 47 N.J. 441, 444, 221 A.2d 521 (1966) (citing State v. Provenzano, 34 N.J. 318, 322, 169 A.2d 135 (1961)). Moreover, “whatever be the rule of [statutory] construction, it is subordinate to the goal of effectuating the legislative plan as it may be gathered from the enactment ‘when read in full light of its history, purpose and context.’ ” Ibid. (quoting Lloyd v. Vermeulen, 22 N.J. 200, 204, 125 A.2d 393 (1956)); accord Roig v. Kelsey, 135 N.J. 500, 515, 641 A.2d 248 (1994); Lesniak v. Budzash, 133 N.J. 1, 8, 626 A.2d 1073 (1993). Finally, it is axiomatic that statutory interpretations that lead to absurd or unreasonable results are to be avoided. Ibid, (citing Robson v. Rodriguez, 26 N.J. 517, 528, 141 A.2d 1 (1958)).
In determining the interaction between N.J.S.A 2C:44-4b and the Graves Act mandatory extended-term provision, we must examine the legislative intent underlying each statute. Fundamentally, the Graves Act reflects the clear intent on the part of the Legislature to impose mandatory prison terms on those who arm themselves prior to the commission of certain offenses. State v. Hawks, 114 N.J. 359, 365-66, 554 A.2d 1330 (1989). The legislative history of the Graves Act indicates the Act is concerned only with deterrence and is wholly unconcerned with rehabilitation. Ibid.; State v. White, 98 N.J. 122, 128, 484 A.2d 691 (1984); Stewart, supra, 96 N.J. at 601, 477 A.2d 300. Thus, the essential spirit underlying the Graves Act is that the promise and certainty of a mandatory prison term is absolutely indispensable to achieving deterrence of the use of firearms during the commission of crimes. See Hawks, supra, 114 N.J. at 366, 554 A.2d 1330 (stating “the potency of [the Graves Act’s] deterrent value lies precisely in
The legislative history of N.J.S.A 2C:44-4b offers little definitive guidance. The former statutory provision was part of the original enactment of the Code of Criminal Justice (Code) by L. 1978, c. 95, effective September 1,1979. Its terms were expressly limited to determinations to be made under N.J.S.A. 2C:44-1 (encompassing statutory aggravating and mitigating factors), and N.J.S.A. 2C:44-3a (relating to persistent offenders). It contained the qualification which remains unchanged: “provided that the time to appeal has expired.” Before the Code became effective, however, N.J.S.A 2C:44-4b was amended by L. 1979, c. 178, § 96, also effective September 1, 1979, deleting the limitation of its scope to N.J.S.A. 2C:44-1 and 44-3a matters. The Senate Judiciary Committee’s Statement that accompanied the amendatory legislation indicated that N.J.S.A. 2C:44-4 was rewritten “for purposes of clarity.” Senate Judiciary Committee Statement to Senate Bill No. 3203, at 10 (June 18,1979). It stated that the only significant change was to recognize a conviction in another jurisdiction that authorized imprisonment in excess of six months. Ibid.
Apart from the legislative history of the two statutes, the Code’s enhancement of sentence for multiple offenders based on prior convictions is not uniform. Under N.J.S.A 2C:14-6, the enhancement of sentence for a second or subsequent sex offender requires not only that the second or subsequent offense follow the first offense chronologically, but also that the second or subsequent offense occur after there has been a conviction on the prior offense. State v. Anderson, 186 N.J.Super. 174, 175, 451 A.2d 1326 (App.Div.1982), aff'd o.b., 93 N.J. 14, 459 A.2d 302 (1983). In
In contrast, chronology of offenses for sentence enhancement of a “persistent offender” under N.J.S.A. 2C:44-3a is not important. The sequence of convictions controls. Thus, if a conviction on a previous offense occurs prior to the date of sentencing on the “subsequent” offense then before the court, the “previous offense” requirement has been met. Mangrella, supra, 214 N.J.Super. at 445-46, 519 A.2d 926. The purpose in this setting is discretionary enhancement of punishment.
Similarly, the same bright line has been adopted with respect to mandatory extended terms under the Graves Act. Hawks, supra, 114 N.J. at 361, 554 A.2d 1330, holds that for mandatory extended terms under N.J.S.A. 2C:43-6c, the chronological sequence of the offenses and the convictions is not relevant. Here, too, the legislative purpose is punishment, not rehabilitation.
This Court applied a similar approach in determining whether a prior murder conviction can be used for penalty enhancement in death penalty cases if that conviction is on appeal. In State v. Bey, 96 N.J. 625, 629, 477 A.2d 315 (1984), we held that the use of a prior murder conviction as a statutory aggravating factor in the penalty phase of a capital proceeding does not require the prior conviction to have been entered before the occurrence of the capital murder. Rather, the Court noted, “the status of the prior conviction at the time of its intended use — the penalty phase of the subsequent murder prosecution — is determinative.” Ibid. Thus, chronology of the prior offense is not significant, provided the prior conviction occurred before the jury’s consideration of the penalty in the capital case. Ibid. Nevertheless, the Court held that a prior murder conviction that is either on appeal or subject to appeal may not be used as an aggravating factor. Id. at 628,
Even though Bey and Biegenwald relied on N.J.S.A. 2C:44r4b to preclude the use of a prior murder conviction as an aggravating factor in a capital case before the right to appeal that conviction became final, the Court went to great lengths to make clear that its holding was required because life was at stake, rendering the penalty “profoundly different from all other penalties.” Biegenwald, supra, 96 N.J. at 639, 477 A.2d 318 (quoting Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973, 990 (1978)). In addition, the profoundly different penalty is ordinarily imposed by a jury rather than a judge. Thus, a sentence enhanced by a prior murder that was not final would require retrial of the penalty phase in the event of a reversal of the prior murder conviction.
Significantly, Biegenwald also acknowledged that although N.J.S.A. 2C:44-4b is derived from the Model Penal Code § 7.05, id. at 636, 477 A.2d 318, “our resolution of the question presented is not free from doubt. We note that the Model Penal Code § 7.05 ... now appears to be the minority rule.” Id. at 639, 477 A.2d 318. That prompted the Court to observe further that N.J.S.A. 2C:44-4b “plausibly could be read to apply to convictions despite the fact that a direct appeal is pending.” Id. at 640, 477 A.2d 318.
The majority of courts in other jurisdictions construing the term “conviction” used in the Model Penal Code § 7.05, or their state’s comparable provision with respect to sentence enhancement, have concluded that a pending appeal on a prior conviction does not preclude its use for enhancement of sentence. These jurisdictions also permit .the defendant to petition for modification of sentence if
We find persuasive the reasoning of a number of these courts espousing the majority position. For example, in District Court of Tenth Judicial Dist., supra, 559 P.2d at 236, the Supreme Court of Colorado reasoned:
If prior convictions on appeal were not included [as “prior convictions” under habitual criminal statute], many recent felony convictions might be effectively exempted from the operation of the statute. This would be clearly inconsistent with the obvious purpose of the statute, which is to punish repeat offenders.
Similarly, we find the reasoning of the Supreme Judicial Court of Maine in Heald, supra, compelling:
The legislative purpose [underlying the habitual offender statute] would be frustrated if the statute applied only to previous convictions which later became final judgments. Indeed, the recidivist who’ appealed his previous conviction would escape the penal additive of the habitual offender statute, notwithstanding that his previous conviction was affirmed on appeal. The Legislature [in utilizing the*14 language “had been before convicted and sentenced to any state prison” in its habitual offender statute] undoubtedly had in mind that many appeals are frivolous, and, even in the case of non-frivolous appeals, that the percentage of reversals is minimal.
[382 A.2d at 299.]
We also find persuasive the conclusion of the Supreme Court of Arkansas in Birckett, supra, 724 S.W.2d at 492, regarding the practical implications of accepting defendant’s argument:
Adopting the theory advanced by the appellant would result, as a practical matter, in rarely ever being able to apply the habitual criminal statutes, since criminal defendants have numerous avenues through which to seek relief, including direct appeal, petitions under Rule 37, and federal habeas corpus petitions. We do not believe that the legislature intended the result urged by the appellant.
[Ibid, (quoting Hill v. State, 13 Ark.App. 307, 683 S.W.2d 628, 630 (1985)).]
As that court noted, “Under appellant’s proposal, not only would the use of prior convictions for enhancement purposes be delayed, but, in many cases, the State would be foreclosed from availing itself of their use.” Id., 724 S.W.2d at 493.
The contrary rule is followed in a healthy minority of jurisdictions. See, e.g., Baxter v. State, 617 So.2d 338 (Fla.Dist.Ct.App.1993); Croker v. Smith, 225 Ga. 529, 169 S.E.2d 787 (1969); Melson v. Commonwealth, 772 S.W.2d 631 (Ky.1989); State v. Lewis, 564 So.2d 765 (La.Ct.App.1990); Butler v. State, 46 Md. App. 317, 416 A.2d 773 (1980); State v. Lane, 642 S.W.2d 935 (Mo.Ct.App.1982); State v. Estes, 238 Neb. 692, 472 N.W.2d 214 (1991); Staniforth v. State, 24 Ohio App. 208, 156 N.E. 924 (1927); Morse v. State, 63 Okla.Crim. 445, 77 P.2d 757 (1938); Jones v. State, 711 N.W.2d 634 (Tex.Crim.App.1986); White v. Commonwealth, 79 Va. 611 (1884); State v. Alexander, 10 Wash.App. 942, 521 P.2d 57 (1974).
Ill
We do not find convincing defendant’s argument that the legislative inaction or silence following Mangrella justifies the conclusion that the Legislature approves of that court’s reading of N.J.S.A. 2C:44-4b. Because Mangrella involves discretionary sentence enhancement of persistent offenders rather than manda
Beyond that, Mangrella relies on the holdings in Bey and Biegenwald to support its interpretation of N.J.S.A 2C:44-4b. The Legislature responded immediately to Bey’s and Biegenwald ’s literal application of N.J.S.A 2C:44-4b by amending the definition of a prior murder as an aggravating factor in a capital case. With that change, a prior murder became final “when sentence is imposed and may be used as an aggravating factor regardless of whether it is on appeal.” L. 1985, c. 178 (effective June 10, 1985). Given the limited application of Mangrella to discretionary extended terms, the Legislature could have found a rational basis not to change the law. In addition, “[t]he Legislature need not explicitly amend a statute ... every time [a court] takes action inconsistent with it in order to avoid the implication that the Legislature concurs.” State v. Cannon, 128 N.J. 546, 566-67, 608 A.2d 341 (1992). The Court has noted in other contexts that “legislative inaction has been called a ‘weak reed upon which to lean’ and a ‘poor beacon to follow’ in construing a statute.” G.E. Solid State, Inc. v. Director, Div. of Taxation, 132 N.J. 298, 313, 625 A.2d 468 (1993) (citations omitted); Amerada Hess Corp. v. Director, Div. of Taxation, 107 N.J. 307, 322, 526 A.2d 1029 (1987) (citations omitted), aff'd, 490 U.S. 66, 109 S.Ct.
[O]ne must ignore rudimentary principles of political science to draw any conclusions regarding [current Congressional] intent from the failure to enact legislation. The “complicated check on legislation,” The Federalist No. 62, p. 378 (C. Rossiter ed. 1961), erected by our Constitution creates an inertia that makes it impossible to assert with any degree of assurance that congressional failure to act represents (1) approval of the status quo, as opposed to (2) inability to agree upon how to alter the status quo, (3) unawareness of the status quo, (4) indifference to the status quo, or even (5) political cowardice____
[Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 671-72, 107 S.Ct. 1442, 1472, 94 L.Ed.2d 615, 656 (1987) (Scalia, J., dissenting).]
Here, as in the past, “[W]e find the doctrine of probable legislative intent a more reliable guide than the so-called doctrine of legislative inaction.” Amerada Hess Corp., supra, 107 N.J. at 322, 526 A.2d 1029. In determining how the Legislature would resolve the interaction between N.J.S.A 2C:44-4b and the Graves Act mandatory extended-term provision, we find far more compelling the clear legislative intent underlying the Graves Act than we find the Legislature’s inaction following Mangrella.
Having considered the legislative intent underlying both the Graves Act and N.J.S.A 2C:44-4b, we reject the overly literal construction of N.J.S.A 2C:44-4b urged by defendant. As Justice Stein stated for a unanimous Court in State v. State Troopers Fraternal Ass’n, 134 N.J. 393, 417-18, 634 A.2d 478 (1993), the literal meaning of a statute should not be applied when the Court is
thoroughly convinced that the Legislature did not intend the [statute] to apply to the State Police, and we now so hold. Our conclusion is reinforced by Judge Learned Hand’s classic admonition that “[t]here is no surer way to misread any document than to read it literally.” Guiseppi v. Walling, 144 F.2d 608, 624 (2d Cir.1944). As we observed in Schierstead v. Brigantine, [29 N.J. 220, 148 A.2d 591 (1959)], “statutes are to read sensibly rather than literally and the controlling legislative intent is to be presumed as ‘consonant to reason and good discretion.’ ” 29 N.J. at 230, 148 A.2d 591 (quoting Morris Canal & Banking Co. v. Central R.R. Co., 16 N.J.Eq. 419, 428 (Ch.1863)).... We cannot conceive that the Legislature intended the discipline amendment to apply to only the State Police and to no other major police department in the State.
That interpretation is consistent with the Code’s foremost policy “of assuring severity [of sentence] and deterrence” of those repeat offenders who use or possess guns during the commission of certain serious offenses such as robberies and rapes. Cannon, supra, 128 N.J. at 571, 608 A.2d 341. Towards that end, the Legislature has directed that the Criminal Code be interpreted to further the general purposes of extended-term sentencing as defined in N.J.S.A 2C:1-2b, including the insurance of “the public safety by preventing the commission of offenses through the deterrent influence of sentences imposed and the confinement of offenders when required in the interest of public protection.” N.J.S.A. 2C:1-2b(3); State v. Dunbar, 108 N.J. 80, 90-91, 527 A.2d 1346 (1987). Under our holding, a defendant is not allowed “to escape the statutorily-required higher penalty because he or she has not yet been convicted, [based on a literal reading of N.J.S.A 2C:44-4b], either because of strategic maneuvering by counsel or because of the vicissitudes of the court docket, [which creates] for defendants a windfall not envisioned by the Legislature.” Hawks, supra, 114 N.J. at 366-67, 554 A.2d 1330. “The sentence, as corrected, imposes a valid punishment for an offense instead of an invalid punishment for that offense.” Bozza v. United States, 330 U.S. 160, 166-67, 67 S.Ct. 645, 649, 91 L.Ed. 818, 822 (1947).
We reject that part of the Appellate Division holding that concluded that N.J.S.A. 2C:44-4b precludes the imposition of a mandatory extended term at the initial sentencing if an appeal is
IV
Our holding requires the trial court to impose a provisional sentence. Such a sentence is provisional in the sense that if the prior Graves Act conviction is reversed on appeal, the mandatory extended term must be vacated in order to vindicate the purpose of N.J.S.A. 2C:44-4b.
Provisional sentences as authorized dispositions within the meaning of N.J.S.A 2C:43-2 are not novel in New Jersey. They have been established both under the Code as well as independent of legislative enactments. One example of a legislatively created provisional sentence is N.J.S.A. 2C:44-1f(2), which permits the State to file an appeal within ten days of imposition of sentence if a defendant is sentenced on a first- or second-degree offense to probation, a noncustodial term, or to a term authorized for an offense one degree lower than the crime for which defendant was convicted. See State v. Sanders, 107 N.J. 609, 527 A.2d 442 (1987); State v. Williams, 203 N.J.Super. 513, 497 A.2d 550 (App.Div.1985); State v. Watson, 183 N.J.Super. 481, 444 A.2d 603 (App.Div.1982). In this context, the State is permitted to seek an increase in the sentence.
A second example of a legislatively created provisional sentence is N.J.SA 2C:47-4e, which allows the Commissioner of the Department of Corrections to seek a reduction in a discretionary sentence. State v. Chapman, 95 N.J. 582, 472 A.2d 559 (1984). Although the scope of this modification of sentence is limited under N.J.S.A. 2C:47-4c, it nonetheless makes the original sentence provisional because the statute creates the procedure for reducing the sentence after a portion of it has been served at the Adult Diagnostic and Treatment Center in Avenel. See Chapman,
A third type of provisional sentence is found in the Pretrial Intervention Program (PTI), which was created initially by the Supreme Court through its rule making power, N.J.Const. (1947) art. VI, § 2, ¶ 3; R. 3:28, and later by the Legislature, N.J.S.A 2C:43-12 to -22. See State v. Nwobu, 139 N.J. 236, 245, 652 A.2d 1209 (1995).
The clearest example of provisional sentencing without express legislative approval that is analogous to the one we establish today results from the Intensive Supervision Program, known as ISP. That program permits a panel of judges to reduce the custodial sentence of a defendant found to be qualified for the program. ISP “is a sentencing alternative that removes carefully selected defendants from prison and releases them into the community under standards of supervision.” Cannon, supra, 128 N.J. at 549, 608 A.2d 341. The goals of ISP “are reduction in prison overcrowding, appropriate punishment of the offender, and rehabilitation.” Ibid. Cannon limits admission into ISP to non-first- and non-second-degree offenders, 128 N.J. at 548, 608 A.2d 341, but this limitation was modified by L. 1993, c. 123, § 2a(3), to permit some second-degree offenders to be considered. State v. McPhall, 270 N.J.Super. 454, 457, 637 A.2d 544 (App.Div.), certif. denied, 137 N.J. 309, 645 A.2d 138 (1994).
Not only was ISP initiated in 1983 without legislative approval, but it was started without a court rule formalizing it. State v. Clay, 230 N.J.Super. 509, 512-13, 553 A.2d 1356 (App.Div.1989), aff'd o.b., 118 N.J. 251, 571 A.2d 295 (1990). The program was instituted by the Supreme Court pursuant to an order signed by the Chief Justice dated May 26, 1983, relying on Article VI, Section II, Paragraph 3 of the 1947 New Jersey Constitution. Id. at 515-16, 553 A.2d 1356. Rule 3:21-10(b)(2) was relaxed; Rule 3:21 — 10(e) and Rule 3:21 — 10(b)(5) were added to permit motions for admission into ISP, effective September 1983. Thereafter,
Based on this Court’s power to administer the criminal justice system, State v. Abbati 99 N.J. 418, 432-33, 493 A.2d 513 (1985), we exercise that power to establish provisional sentencing of subsequent Graves Act offenders regardless of the appeal status of the prior Graves Act conviction. When a defendant before the trial court is exposed to a Graves Act mandatory extended term, the trial court shall impose the extended term. However, should the prior conviction be reversed on appeal subsequently, the trial court shall, on motion by a defendant pursuant to Rule 3:21-10(b)(4) or Rule 3:22-2, amend the extended-term sentence to an ordinary Graves Act sentence.
The rule we announce today conserves judicial resources. A review of statistical data for the 1991, 1992, and 1993 court terms of the Appellate Division reveals that the rate of reversal in criminal cases was approximately thirteen percent.' Assuming the same approximate rate applies to Graves Act convictions, that rate suggests there will be few applications for modification of the sentence based on reversal of the first Graves Act conviction. The procedure adopted by the Appellate Division would have the opposite effect.
V
Defendant argues further that any increase in his sentence from the ordinary term imposed on his first resentencing to the extended term imposed on his second resentencing constitutes a due-process violation. He claims that it is fundamentally unfair for him to receive the sentence originally imposed after succeeding in having that very sentence declared illegal by the Appellate Division. Although defendant concedes he suffered no double-jeopar
We find that defendant has suffered no deprivation of his constitutional rights as a result of the imposition of the mandatory extended term on his second resentencing.
This Court has held that a defendant who appeals his substantive conviction along with the corresponding sentence has no legitimate expectation of finality in either the underlying conviction or the corresponding sentence. Rodriguez, supra, 97 N.J. at 263, 478 A.2d 408. The holding in Rodriguez significantly narrowed the scope of State v. Ryan, 86 N.J. 1, 8-9, 429 A.2d 332, cert. denied, 454 U.S. 880, 102 S.Ct. 363, 70 L.Ed.2d 190 (1981), which held that principles of double jeopardy foreclose the imposition of an increased prison sentence after a defendant has commenced serving a portion of that sentence. In Rodriguez, the Court instructed that “Ryan can be understood to hold that the commencement of sentence coupled with the defendant’s expectation of finality in his original underlying conviction and sentence combined to raise a constitutional bar against an increase in that sentence.” Rodriguez, supra, 97 N.J. at 270, 478 A.2d 408 (citing Ryan, supra, 86 N.J. at 9-10, 429 A.2d 332). Hence, after Rodriguez, the critical inquiry in assessing whether principles of due process and double jeopardy bar imposition of a sentence greater than one initially imposed is whether the defendant maintains a “legitimate expectation of finality” with respect to the sentence. See United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980) (holding that increase in original
Pennsylvania v. Goldhammer, 474 U.S. 28, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985), reaffirmed the recognition in DiFrancesco that “the decisions of this Court ‘clearly establish that a sentencing in a noncapital case] does not have the qualities of constitutional finality that attend an acquittal.’ ” Id. at 30, 106 S.Ct. at 353-54, 88 L.Ed.2d at 186 (quoting DiFrancesco supra, 449 U.S. at 134, 101 S.Ct. at 436, 66 L.Ed.2d at 328). More recently, the Supreme Court again recognized the continuing validity of DiFrancesco in its decision in Caspari v. Bohlen, 510 U.S. -, ---, 114 S.Ct. 948, 954-56, 127 L.Ed.2d 236, 246-49 (1994). The Court in Caspari declined to rule on the specific question whether the double-jeopardy clause applies to noncapital sentencing proceedings and the related question of whether the persistent-offender proceeding involved in that ease was sufficiently trial-like to invoke double-jeopardy protections under Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981) (holding that double-jeopardy clause limits the State’s power to subject defendant to successive capital sentencing proceedings). Nonetheless, the Court made this telling comment:
Applying the Double Jeopardy Clause to successive noncapital sentencing is not such a groundbreaking occurrence. Persistentoffender status is a fact objectively ascertainable on the basis of readily available evidence. Either a defendant has the requisite number of prior convictions or he does not. Subjecting him to a second sentencing proceeding at which the State has the opportunity to show those convictions is not unfair, and will enhance the accuracy of the proceeding by ensuring that the determination is made on the basis of competent evidence. [Caspari, 510 U.S. at ---, 114 S.Ct. at 956-57, 127 L.Ed.2d at 250.]
In the present case, defendant challenged the underlying conviction as well as the sentence on direct appeal. Under DiFrancesco, Rodriguez, and Ryan, defendant had no legitimate expectation of finality with respect to either the conviction or the sentence. See Rodriguez, supra, 97 N.J. at 271, 478 A.2d 408. Defendant is mistaken in his assertion that the holding of Rodriguez applies only where the appeal of the underlying conviction is successful. We hold that the outcome of an appeal of the underlying conviction is not highly relevant, if relevant at all, to a determination whether such an appeal attacking both the underlying convictions and sentence negates any legitimate expectation of finality on the part of a defendant. Ibid. What was sought by the appeal, rather than the relief, if any, obtained, defines what constitutes a legitimate expectation of finality. See State v. Baker, 270 N.J.Super. 55, 76-77, 636 A.2d 553 (App.Div.), aff'd o.b., 138 N.J. 89, 648 A.2d 1127 (1994). To hold otherwise would mean the appeal was taken without any hope of changing the'underlying conviction or sentence. Here, not only was there an expectation of success on appeal, but defendant succeeded in overturning the sentence, albeit improperly.
Moreover, the original sentence, a Graves Act extended term, was modified pursuant to the remand order of the Appellate Division dated April 15, 1992. Consequently, “[t]he trial court’s action in this respect reflected its reaction to that determination. Since we find that the Appellate Division erred, it is appropriate that the initial sentencing determinations, which we find were proper, be reinstated.” Chapman, supra, 95 N.J. at 596, 472 A.2d 559.
We also find unpersuasive defendant’s reliance on State v. Vasquez, 129 N.J. 189, 609 A.2d 29 (1992), and State v. Baylass, 114 N.J. 169, 553 A.2d 326 (1989), in support of his argument for “freezing in time” his. prior Graves Act conviction. Vasquez and
VI
The rule we adopt today is to be given limited retroactive application. It shall apply to this case and all cases in which sentencing on the second Graves Act conviction has not yet occurred. It shall also apply in all cases where the defendant has been sentenced on the second Graves Act conviction, but as of the date of this decision, the parties have not exhausted all avenues of direct review on that conviction. Montells v. Haynes, 133 N.J. 282, 295-98, 627 A.2d 654 (1993); Coons v. American Honda Motor Co., Inc., 96 N.J. 419, 425, 476 A.2d 763 (1984), cert. denied, 469 U.S. 1123, 105 S.Ct. 808, 83 L.Ed.2d 800 (1985); State v. Burstein, 85 N.J. 394, 402-03, 427 A.2d 525 (1981). The trial court will have to decide on a case-by-case basis whether today’s ruling has altered a defendant’s legitimate sentence expectation where negotiated pleas are involved. In those instances, the court must fashion the appropriate relief.
VII
In sum, we hold that the trial court’s imposition of the Graves Act mandatory extended term in the first instance was legal, and
The judgment of the Appellate Division is affirmed.