State v. Chapman

• Decision Date: 22 March 1984
• Citation: 95 N.J. 582,472 A.2d 559
• Parties: STATE of New Jersey, Plaintiff-Respondent and Cross-Appellant, v. Donald CHAPMAN, Defendant-Appellant and Cross-Respondent.
• Court: New Jersey Supreme Court

Page 582

95 N.J. 582

472 A.2d 559

STATE of New Jersey, Plaintiff-Respondent and Cross-Appellant, v. Donald CHAPMAN, Defendant-Appellant and Cross-Respondent.

Supreme Court of New Jersey.

Argued Dec. 13, 1983.

Decided March 22, 1984.

John M. Apicella, Asst. Deputy Public Defender, for defendant-appellant and cross-respondent (Joseph H. Rodriguez, Public Defender, attorney).

Debra L. Stone, Deputy Atty. Gen., for plaintiff-respondent and cross-appellant (Irwin I. Kimmelman, Atty. Gen. of N.J., attorney; Debra L. Stone and Audrey G. Cohen, Deputy Atty. Gen., of counsel and on the briefs).

The opinion of the Court was delivered by

SCHREIBER, J.

The defendant pleaded guilty to kidnapping ( N.J.S.A. 2C:13-1 b(1) and (2)) and aggravated sexual assault ( N.J.S.A. 2C:14-2 a(6)). After explaining the potential sentences, including possible periods of parole ineligibility, the trial court accepted the pleas. The court ordered that defendant be examined at the Adult Diagnostic and Treatment Center at Avenel (Avenel) prior to sentencing in accordance with N.J.S.A. 2C:47-1.

The Avenel report determined that the defendant's conduct was characterized by a pattern of repetitive, compulsive behavior and recommended sentencing to Avenel for a program of specialized treatment for the defendant's mental condition. See N.J.S.A. 2C:47-3 a. In light of this recommendation, the trial court imposed a sentence of twenty years at Avenel with a minimum parole ineligibility period of ten years for the kidnapping and a concurrent sentence of twenty years at Avenel with a minimum parole ineligibility period of ten years for the aggravated sexual assault.

Before enactment of the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 to 2C:98-4 (the Criminal Code), the defendant had been convicted of abduction with intent to defile. The trial court concluded that the earlier conviction was substantially equivalent to the Criminal Code offense of sexual assault and that the present conviction for aggravated sexual assault was a second sex offense. The court therefore imposed a fixed minimum sentence of parole ineligibility pursuant to N.J.S.A. 2C:14-6.

Upon appeal a majority of the Appellate Division panel remanded the cause to the trial court for resentencing. The Appellate Division held that the trial court could either sentence the defendant to Avenel with a mandatory five-year parole ineligibility term as a second sex offender pursuant to N.J.S.A. 2C:14-6 or sentence him to the custody of the Commissioner of the Department of Corrections (the Commissioner) with minimum parole ineligibility terms of up to one half of the fixed term sentences pursuant to N.J.S.A. 2C:43-6 b. 189 N.J.Super. 379, 460 A.2d 177 (1983). Judge Michels dissented in part. 189 N.J.Super. at 399, 460 A.2d 177. In his view any defendant sentenced to Avenel, whether or not a second or subsequent sex offender, could be subject to a minimum parole ineligibility term of up to one half of the fixed term sentence under the Criminal Code.

The State filed a notice of appeal under R. 2:2-1, there being a divided Appellate Division decision. The defendant, questioning the sentencing judge's authority to disregard the Avenel diagnostic report and to sentence the defendant to the custody of the Commissioner instead of Avenel, petitioned this Court for certification.

While the petition for certification was pending, the trial court held a limited resentencing hearing. It then modified the kidnapping sentence to provide that the defendant would be placed in the custody of the Commissioner for twenty years with a mandatory minimum period of parole ineligibility of ten years and with the "recommendation * * * that the Commissioner consider having the sentence served at Avenel."

We granted defendant's petition for certification. 94 N.J. 554, 468 A.2d 201 (1983). We hold that a defendant may be sentenced to Avenel with a mandatory minimum parole ineligibility period; that if the defendant is convicted of a second or subsequent sex offense, the mandatory minimum parole ineligibility term must be at least five years; and that the trial court has the discretion, after receipt of the Avenel report recommending that the sentence be served there, to order that the defendant be sentenced to the custody of the Commissioner instead. We therefore reverse the judgment of the Appellate Division essentially for the reasons stated in Judge Michels' dissent.

I

At issue here is the interrelationship of sections of the Criminal Code with each other and with N.J.S.A. 30:4-123.51 of the Parole Act of 1979, N.J.S.A. 30:4-123.45 to -123.70 (the Parole Act).

N.J.S.A. 2C:14-2 describes the elements of an aggravated sexual assault and provides that it is a crime of the first degree. The same section also delineates the elements of a sexual assault, which is designated a crime of the second degree. N.J.S.A. 2C:14-3 defines aggravated criminal sexual contact, which is designated a crime of the third degree, and criminal sexual contact, a crime of the fourth degree. Generally, the terms of imprisonment are ten to twenty years for a crime of the first degree, five to ten years for a crime of the second degree, three to five years for a crime of the third degree, and a specific term not to exceed eighteen months for a crime of the fourth degree. N.J.S.A. 2C:43-6 a. ¹ If the court is clearly convinced that the aggravating factors outweigh the mitigating factors, it may fix a minimum term, not to exceed one half of the term prescribed above, during which the defendant is not eligible for parole. N.J.S.A. 2C:43-6 b Some sentencing provisions are applicable only to sentences involving sexual crimes. Under N.J.S.A. 2C:47-1, when a person has been convicted of such a crime, the person is to be referred to Avenel "for such period as shall be necessary to complete a physical and psychological examination." If the examination reveals that the "conduct was characterized by a pattern of repetitive, compulsive behavior, the court may, upon the recommendation" of Avenel, sentence the offender to Avenel "for a program of specialized treatment for his mental condition." N.J.S.A. 2C:47-3 a (emphasis added). The remaining provisions of N.J.S.A. 2C:47-3 read as follows:

b. In the event that the court shall sentence a person as provided herein, the court shall notwithstanding set the sentence in accordance with Chapters 43 and 44 of this code. [Chapter 43 refers to N.J.S.A. 2C:43-1 through -22.]

c. In lieu of incarceration, the court may, upon the written report and recommendation of the Adult Diagnostic and Treatment Center, place such person on probation with the requirement, as a condition of such probation, that he receive outpatient psychological treatment in a manner to be prescribed in each individual case.

d. If it shall appear from the report of such examination made of such person that the offender's conduct was not characterized by a pattern of repetitive, compulsive behavior, the court shall not impose sentence on such person as provided by this chapter. [Emphasis added.]

The Criminal Code specifically provides that if a person such as the defendant is convicted of aggravated sexual assault, a crime of the first degree, the term of incarceration imposed may be ten to twenty years. It is also clear, as both the majority and dissenting Appellate Division opinions acknowledged, that the trial court is not bound by the recommendation of Avenel that the sentence be served there. The court may sentence the defendant to the custody of the Commissioner irrespective of a recommendation that the defendant be sent to Avenel for specialized treatment.

Nothing in the Criminal Code proscribes a trial court from imposing a mandatory minimum parole ineligibility period when the defendant is sentenced to Avenel. The provisions relating to the Avenel examination, report, and sentencing expressly indicate the contrary. N.J.S.A. 2C:47-3 b, quoted above, indicates that when the court sentences a person "as provided herein," that is, inclusive of the situation when the defendant is being sent to Avenel, the court shall nevertheless set the sentence in accordance with N.J.S.A. 2C:43-6 b (the provision authorizing a trial court to impose a minimum parole ineligibility term of up to one half of the total sentence) and the remainder of Chapter 43 of the Criminal Code. See State v. Johnson, 182 N.J.Super. 1, 4, 439 A.2d 614 (Resentencing Panel), rev'd on other grounds, 88 N.J. 26, 438 A.2d 519 (1981). This interpretation is buttressed by N.J.S.A. 2C:14-6, which mandates that, unless an extended term is involved, a sentence imposed for a second or subsequent sexual offense shall include "a fixed minimum sentence of not less than 5 years during which the defendant shall not be eligible for parole." [Emphasis added.] The legislative intent to tie in parole ineligibility periods with Avenel sentences for first offenders as well as second sex offenders sentenced to Avenel is manifest from those two provisions.

N.J.S.A. 2C:14-6 provides that the parole ineligibility term for second or subsequent sex offenders, whether or not sentenced to Avenel, must be "not less than five years." The court may, of course, fix a parole ineligibility term of more than five years for a second or subsequent sex offender after weighing the aggravating and mitigating factors pursuant to N.J.S.A. 2C:43-6 b. However, N.J.S.A. 2C:43-6 b provides that the parole ineligibility term should not exceed one half of the fixed sentence. Therefore, if the total fixed sentence for a second or subsequent sex offender is greater than ten years, the court must impose a parole ineligibility term of at least five years and at most one half of the total sentence, depending upon the aggravating and mitigating factors. If the total fixed sentence for a second or subsequent sex offense is ten years or less, both the minimum and maximum parole ineligibility terms will...