State v. Bianco

• Decision Date: 07 July 1986
• Citation: 511 A.2d 600,103 N.J. 383
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Gary BIANCO, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 383

103 N.J. 383

511 A.2d 600

STATE of New Jersey, Plaintiff-Respondent, v. Gary BIANCO, Defendant-Appellant.

Supreme Court of New Jersey.

Argued March 4, 1986.

Decided July 7, 1986.

John Burke, III, Asst. Deputy Public Defender, for defendant-appellant (Thomas S. Smith, Jr., Acting Public Defender, attorney).

Gary Bianco submitted a supplemental letter brief, pro se.

Carol M. Henderson, Deputy Atty. Gen., for plaintiff-respondent (W. Cary Edwards, Jr., Atty. Gen., attorney).

Deborah H. Karpatkin, Staff Counsel, submitted a letter in lieu of brief on behalf of amicus curiae, American Civil Liberties Union of New Jersey (Jeffrey E. Fogel, Executive Director, attorney).

The opinion of the Court was delivered by

GARIBALDI, J.

The sole issue presented in this appeal is whether the four-month Pilot Program of the Appellate Division's Excessive Sentence Oral Argument Program (ESOA Program) was constitutional. Specifically, defendant-appellant contends that his mandatory participation in the Pilot Program violated his federal and state constitutional rights to due process and to equal protection of the law. Petitioner concedes that as presently constituted the ESOA Program is constitutional.

I

Gary Bianco, the defendant, and his mother, Nancy Bianco, each were charged with two counts of conspiracy to commit robbery ( N.J.S.A. 2C:5-2) and two counts of first-degree robbery ( N.J.S.A. 2C:15-1). The charges stemmed from their abduction of a fifty nine-year-old woman from a supermarket parking lot in Hudson County. The defendant drove the victim several blocks away and then released her after robbing her of $330. On June 20, 1983, following plea negotiations, Gary Bianco entered a retraxit plea of guilty to first-degree robbery in exchange for the State's agreement to recommend dismissal of the remaining counts of the indictment and to recommend that any sentence imposed be concurrent with another sentence that the defendant was to serve in Essex County. ¹ On July 27, 1983, the trial court sentenced the defendant to New Jersey State Prison for a twenty-year term with a ten-year period of parole ineligibility. This sentence was concurrent, but not coterminous, with his sentence imposed in Essex County. He also was ordered to pay a penalty of $25 to the Violent Crimes Compensation Board. The court dismissed the remaining counts of the indictment.

The defendant appealed on September 19, 1983, challenging the length of his sentence. On April 6, 1984, a two-judge panel of the Appellate Division heard this appeal as part of the ESOA Pilot Program. The appeal was argued orally. There were no written briefs submitted and the argument was not sound recorded or transcribed. The court affirmed defendant's conviction and sentence.

We granted defendant's petition for certification, 99 N.J. 191, 491 A.2d 692 (1985), and summarily remanded the case to the Appellate Division for "consideration of defendant's argument that he was denied equal protection and due process of law by reason that his appeal was heard as part of the excessive sentence oral argument program."

After oral argument, but without benefit of briefs, the Appellate Division issued a per curiam opinion, 205 N.J.Super. 462, 501 A.2d 528 (1985), affirming Bianco's conviction and holding that the ESOA Program did not violate defendant's state and federal constitutional rights to due process and to equal protection. The defendant filed a Petition for Certification as well as a pro se Notice of Appeal as of Right pursuant to Rule 2:2-1(a). The latter was limited in scope to the allegedly disparate ² and excessive sentence he received. We again granted certification, 102 N.J. 342, 508 A.2d 216 (1985), limited solely to the constitutionality of the excessive sentence program, and we now affirm the judgment of the Appellate Division.

II

The ESOA Program was the result of the Appellate Division's growing concern about the mounting backlog and delays--sometimes up to four years--in the processing and perfecting of criminal appeals. The very real fear was that some defendants might fully serve an illegal or excessive sentence before the sentence was subject to appellate review. To study the problem, this Court created an experimental five-judge criminal part of the Appellate Division to hear all criminal appeals for the 1983-84 court year and established a Criminal Appeals Expediting Committee. An examination of pending criminal appeals disclosed that there was an inventory of at least 568 cases, in which the sole issue was excessiveness of sentence, and that some of these cases were three or four years old. Moreover, it appeared that the backlog was due mainly to the inability of the Public Defender to file briefs because of personnel and budget limitations. Discussion among members of the Committee and other judges, as well as visits to two other states that had adopted expedited criminal appeals procedures, ³ resulted in a proposal that excessive sentence appeals be identified and placed on an oral argument calendar, without the benefit of briefs, for summary disposition.

Although only two other states have dispensed with briefs, a number of commentators have embraced the idea of briefless appeals. See P. Carrington, D. Meador & M. Rosenberg, Justice on Appeal 27 (1976). ⁴

Similarly, the American Bar Association (ABA) has suggested a number of procedural devices for reducing the delay resulting from the dramatic rise in criminal appeals, including the elimination of briefs. American Bar Association, Criminal Appeals § 21-3.1 (1978). The ABA believes that it is desirable to handle appeals through procedures that vary depending on the complexity of the case so long as the appellate panel is informed of the facts, understands the arguments of the party, and collegially reaches a reasoned conclusion. Id. § 21-3.4.

On March 22, 1984, the Court entered an Order relaxing Rules 2:6-11(a) and 2:11-1 to permit oral argument without brief in excess sentence appeals. Further orders of the Court extended the program.

The ESOA Program was designed to minimize the need for support time from both the Public Defender and the Attorney General. ⁵ The vast majority of appeals that raise only questions of excessive sentencing are brought by indigents. ⁶ Prior to the initiation of the Program, a large number of the excessive sentence appeals were at least two-years old and still awaiting briefing by the Public Defender's Office. The Clerk's Office of the Appellate Division estimates that in August 1986, at the end of its first two years of operation, the Program will have eliminated more than 800 excessive sentencing appeals that were still pending at the end of August 1984. The Clerk's Office further estimates that thereafter up to one-third of all criminal appeals may be disposed of on oral argument within six months of the filing of the notice of appeal; currently it takes on average more than fourteen and one-half months. The hope is that the Public Defender and the Attorney General then will be able to devote more of their time and limited resources to complex appellate issues.

During the Pilot Program, March through June of 1984, four excessive sentence calendars were held and a total of 307 of the 390 calendared cases, including the defendant's, were disposed of through the excessive sentence procedure. Cases were selected for the excessive sentence calendar from a printout of all appeals in which the only transcripts ordered were of a plea, sentencing, or both. The printout listed all criminal appeals that satisfied these criteria in ascending order by docket number.

Priority was given to the oldest cases in selecting appeals from the printout for calendaring. However, an effort was also made for a given calendar to select between five and seven appeals assigned to individual Deputy Public Defenders so that appeals could be heard efficiently with minimum disruption to the staff. The determination of which Public Defender was involved was based upon who had signed the notice of appeal. This caused some appeals to receive additional priority that they would not have had based upon their age alone. Private cases were not grouped but were listed individually on any available calendar and private counsel were required to appear to argue a single case at that time. It was the intention of the court that all excessive sentence appeals be disposed of in a similar manner. ⁷

III

The defendant's first constitutional argument is that the Pilot Program violated his right to due process. We disagree. The Due Process Clause of the Fourteenth Amendment does not require a state to provide appellate review. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987, 993 (1983); Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651 (1977); Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956), reh'g den., 351 U.S. 958, 76 S.Ct. 844, 100 L.Ed. 1480 (1956).

Unlike the federal constitution, the New Jersey Constitution does provide for the appellate review of criminal proceedings. N.J. Const. 1947 art. VI, § 5, para. 2. And as the Supreme Court recently has stated, a state that confers a right to appeal, though not required to confer such a right, must establish appellate procedures that satisfy the Due Process Clause. Evitts v. Luce, 469 U.S. 387, ----, 105 S.Ct. 830, 838-39, 83 L.Ed.2d 821, 833 (1985).

In order to satisfy the Due Process Clause, defendants must be given a "meaningful opportunity to be heard." Boddie v. Connecticut, 401 U.S. 371, 377, 91 S.Ct. 780, 785, 28 L.Ed.2d 113, 118 (1971). For example, the State must provide an indigent criminal defendant with the means necessary to prosecute his first appeal as of right, such as a free transcript and effective assistance of counsel. Otherwise poverty would deny the indigent appellate review. Jones v. Barnes, 463 U.S. at 751, 103 S.Ct. at 3312, 77 L.Ed.2d...