State v. Chapman

• Decision Date: 06 April 1983
• Citation: 460 A.2d 177,189 N.J.Super. 379
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Donald CHAPMAN, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 379

189 N.J.Super. 379

460 A.2d 177

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

Superior Court of New Jersey Appellate Division.

Submitted Feb. 1, 1983.

Decided April 6, 1983.

Joseph H. Rodriguez, Public Defender, for defendant-appellant (John M. Apicella, Asst. Deputy Public Defender, of counsel and on the letter brief).

Irwin I. Kimmelman, Atty. Gen., for plaintiff-respondent (Audrey G. Cohen, Deputy Atty. Gen., of counsel and on the brief).

Before Judges MICHELS, PRESSLER and TRAUTWEIN.

The opinion of the court was delivered by

PRESSLER, J.A.D.

This appeal raises important questions relating to the sentencing of sex offenders under the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1. The basic problem before us concerns the susceptibility of sex offender sentences to mandatory minimum parole ineligibility periods. The resolution of this problem implicates such considerations as the effect of the sentencing judge's option to impose either a treatment disposition or a prison term on an eligible sex offender; the relationship between the sex offender provisions of chapter 47 of the Code and the 1979 Parole Act, N.J.S.A. 30:4-123.45 et seq.; the effect on sentencing options resulting from a defendant's simultaneous conviction of both eligible sex offenses and other offenses; the applicability to both first and subsequent offenders of N.J.S.A. 2C:43-6 b; the effect and consequences of N.J.S.A. 2C:14-6, which mandates a minimum parole ineligibility of five years for a second or subsequent sex offender, and the interrelationship between N.J.S.A. 2C:43-6 b and N.J.S.A. 2C:14-6.

Defendant Donald Chapman was charged with a variety of offenses arising out of his abduction and sexual assault of a young woman whom he brutally and sadistically abused. Pursuant to a plea agreement he pleaded guilty to two of these charges, kidnapping and aggravated sexual assault, and the State recommended dismissal of the remaining charges. After acceptance of the plea, defendant was referred by the trial judge to the Adult Diagnostic and Treatment Center (Avenel) for evaluation pursuant to N.J.S.A. 2C:47-1. It was there determined that his conduct "was characterized by a pattern of repetitive, compulsive behavior." N.J.S.A. 2C:47-3 a. The Avenel report recommended that defendant be sentenced there for a program of specialized treatment.

At the ensuing sentencing proceeding, the judge considered the question of whether, if he opted to impose an Avenel sentence pursuant to N.J.S.A. 2C:47-3, he could burden that sentence with a minimum parole ineligibility period pursuant to N.J.S.A. 2C:43-6 b, the general provision which accords the sentencing judge the discretion to fix a minimum parole ineligibility term of up to one-half of the set term of imprisonment. He concluded that an Avenel sentence is subject to N.J.S.A 2C:43-6 b and accordingly entered a judgment of conviction sentencing defendant to Avenel for a term of 20 years on the kidnapping and for a concurrent term of 20 years on the aggravated sexual assault, each term subject to a ten-year mandatory minimum parole ineligibility.

At the sentencing proceeding which resulted in this judgment of conviction, the judge expressly reserved on the question of the applicability of N.J.S.A. 2C:14-6, which provides that upon a defendant's conviction of a second or subsequent sex offense and unless an extended term is imposed pursuant to N.J.S.A. 2C:43-7, the sentence is required to "include a fixed minimum sentence of not less than 5 years during which the defendant shall not be eligible for parole." That section further provides that a second or subsequent offender may not be afforded a suspended sentence or other noncustodial disposition, and further stipulates that a prior sex offender includes not only a conviction under N.J.S.A. 2C:14-2 or 2C:14-3 a, but also under "any similar statute ... for an offense that is substantially equivalent" to these sections.

Accordingly, a second sentencing proceeding was conducted at which the judge found that defendant's prior conviction under Title 2A of abduction with intent to defile constituted a prior offense within the intendment of N.J.S.A. 2C:14-6. He thus concluded that "under 2C:14-6 [defendant] must serve a fixed minimum sentence of five years during which he shall not be eligible for parole." "A supplement to judgment of conviction" was consequently entered, noting that defendant is "subject to the minimum term of parole ineligibility provisions of N.J.S.A. 2C:14-6. The judgment of conviction (attached hereto) is therefore supplemented accordingly." What was not, however, made clear was whether it was the intention or import of the supplemental judgment to amend the original judgment by substituting N.J.S.A. 2C:14-6 for N.J.S.A. 2C:43-6 b as the source of parole ineligibility and, if so, whether the judge intended to double the mandatory minimum period prescribed by 2C:14-6. Other possible interpretations of the supplemental judgment are that the judge intended to rely on 2C:14-6 for the first five years of minimum parole ineligibility and 2C:43-6 b for the second five years, or that the judge merely intended to support the 2C:43-6 b parole ineligibility by pointing out that a period of parole ineligibility was in any event required by N.J.S.A. 2C:14-6. As will appear, hereafter, this ambiguity as to the precise meaning of the supplemental judgment of conviction is of significance.

In any event, defendant's appeal from the judgment of conviction, as supplemented, is based on his contention, first, that an Avenel sentence is not subject to a minimum parole ineligibility period pursuant to N.J.S.A. 2C:43-6 b and, second, that the trial judge erred in concluding that the character of his prior Title 2A conviction, the gravamen of which was attempted rape, properly invoked the multiple offender provision of N.J.S.A. 2C:14-6. As to this latter contention, we are satisfied substantially for the reasons stated by the trial judge that defendant was properly adjudicated a second offender pursuant to N.J.S.A. 2C:14-6. We are, however, also satisfied that this conclusion does not render moot the technical problems with the judgment of conviction which we discuss hereafter and which, for the reasons hereafter set forth, require that defendant be resentenced. These problems, moreover, require us to consider defendant's argument respecting the applicability of N.J.S.A. 2C:43-6 b to an Avenel sentence.

Resolution of the issues here requires some brief historical reference. The original Sex Offender Act, N.J.S.A. 2A:164-3 et seq., repealed by the Code, was based on the legislative perception that sex offenders whose conduct resulted from mental aberration constituted a special class of defendants requiring psychiatrically-oriented rehabilitative treatment rather than punitive confinement. It was the further legislative perception that if a sex offender were required to be confined while such treatment was rendered, the confinement should continue until, but not beyond, the time at which he was deemed safe for return to society. See, generally, State v. Clark, 65 N.J. 426 434-436, 323 A.2d 470 (1974); State v. Wingler, 25 N.J. 161, 169-171, 135 A.2d 468 (1957). Accordingly, N.J.S.A. 2A:164-5 required the sentencing judge to impose a special treatment disposition upon recommendation of Avenel and its classification of defendant's conduct as repetitive and compulsive. The sentence, if one of commitment rather than probation, was by definition indeterminate subject to the maximum period of incarceration prescribed by statute for the specific crime. N.J.S.A. 2A:164-6. Parole was not available pursuant to a schedule of predetermined eligibility nor were commutation credits for work or good behavior available. Rather, parole release was entirely dependent upon the satisfaction of the parole board, based on the recommendation of the special classification review board, that defendant was "capable of making an acceptable social adjustment in the community." N.J.S.A. 2A:164-8 and 10. A defendant could be paroled, therefore, after a brief custodial period or could actually serve the entire statutory maximum prescribed for his offense. The dispositional scheme, therefore, accorded very little judicial discretion in sentencing, permitted a great disparity among defendants in the time of their actual incarceration and, as it ultimately developed, failed in many cases to provide effective treatment. See, e.g., State v. Harvey, 162 N.J.Super. 386, 392 A.2d 1248 (Law Div.1978), aff'd o.b. 170 N.J.Super. 391, 406 A.2d 724 (App.Div.1979). It was also, of course, arguable that early parole release of some offenders on administrative recommendation alone failed adequately to protect the societal interest.

There was yet another problem encountered in the pre-Code administration and implementation of the Sex Offender Act which was attributable to the strict limitation of Avenel sentencing only to convictions of those crimes therein specifically enumerated. See e.g., State v. Clark, supra; State v. Gibson, 150 N.J.Super. 351, 375 A.2d 1191 (App.Div.1977), certif. den. 75 N.J. 20, 379 A.2d 251 (1977). Thus, it was apparently not an infrequent phenemenon for a defendant to be sentenced to Avenel for a sex offense covered by the act and simultaneously sentenced to State Prison for noncovered offenses, whether or not sex offenses, which were nevertheless attributable to the same mental or physical abnormality invoking the treatment disposition of the covered offenses. Thus Clark involved such dual sentencing for covered sex crimes and the then uncovered sex crime of incest. Gibson involved an Avenel sentence for rape and a State Prison term for the uncovered nonsex offense of breaking and entering with intent to rape.

The result of such duality in sentencing was that a defendant might well receive treatment at...