State v. Clark

• Decision Date: 30 July 1974
• Citation: 65 N.J. 426,323 A.2d 470
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Warren L. CLARK, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 426

65 N.J. 426

323 A.2d 470

STATE of New Jersey, Plaintiff-Respondent, v. Warren L. CLARK, Defendant-Appellant.

Supreme Court of New Jersey.

Argued June 3, 1974.

Decided July 30, 1974.

Edward J. Dimon, Asst. Deputy Public Defender, for defendant-appellant (Stanley C. Van Ness, Public Defender, attorney; Dimon, of counsel and on the brief).

Howard Allen Cohen, Deputy Atty. Gen., for plaintiff-respondent (William F. Hyland, Atty. Gen., attorney; Cohen, of counsel and on the brief).

The opinion of the Court was delivered by

HALL, J.

Defendant in 1964, following guilty pleas, was committed for an indeterminate term for treatment under the sex offender act, N.J.S.A. 2A:164--3 et seq., and given penal sentences consecutive thereto for other contemporaneous sex offenses, unquestionably resulting from the same mental and physical aberration, but not then included within the coverage of the act. He was paroled in 1971 from the commitment under the act, N.J.S.A. 2A:164--8, following therapy treatment, as capable of making an acceptable social adjustment in the community and no longer a threat. He has since been serving the penal sentences. The question is the propriety of those sentences. It is raised by a Pro se petition for post-conviction relief. R. 3:22. The trial court dismissed the petition without hearing and the Appellate Division affirmed. We granted defendant's Pro se petition for certification, 63 N.J. 580, 311 A.2d 3 (1973), and directed the Public Defender to represent him in the resultant appeal.

The 1964 guilty pleas were to five accusations filed by the Prosecutor following defendant's waiver of indictment and trial by jury. He was at the time 37 years of age, married and the father of six children. The first accusation charged carnal abuse of a ten year old neighbor girl, N.J.S.A. 2A:138--1, which, by reason of the child being under the age of 12 years, carried a maximum sentence of 30 years. The second was for 'incestuous conduct between parent and child,' N.J.S.A. 2A:114--2, alleging that he 'did unlawfully commit the crime of incest by having carnal knowledge of his * * *' nine year old daughter. The maximum penalty under this section is imprisonment for 15 years. ¹ Two other accusations dealt with similar 'unnatural' sex acts between defendant and two young males, one 16 and the other 19 years of age. Apparently because of the difference in age, the offenses were charged under differing statutory sections. That involving the 16 year old was brought under N.J.S.A. 2A:96--4--contributing to a child's delinquency. (It has been held that 'child' in this statute refers to a person under 18 years of age. State v. Montalbo, 33 N.J.Super. 462, 110 A.2d 572 (Co.Ct.1954).) The charge concerning the 19 years old was 'lewdness' under N.J.S.A. 2A:115--1. ² Both charges are misdemeanors with a three year imprisonment maximum. N.J.S.A. 2A:85--7. (No violence was involved in any of these four charges.) The fifth accusation charged possession of obscene pictures (nude photographs he took of the two girls and others) with intent to utter and expose in violation of N.J.S.A. 2A:115--2, also a misdemeanor.

Upon the guilty pleas defendant was committed to the Diagnostic Center for physical and mental examination, required by the sex offender act since two of the offenses--carnal abuse and open lewdness--were within the then coverage of the act. L.1950, c. 207, as amended by L.1951, c. 44; N.J.S.A. 2A:164--3. The Center's report in fact dealt with all the offenses, which defendant readily admitted, and found that they derived from 'deep psychosexual conflicts and deep feelings of male inadequacy' or long standing and that his offensive conduct was repetitive and compulsive and so fell within the purview of the act. He was said to be a menace to his family and other children and the recommendation was that he be committed to an institution for, as the statute (N.J.S.A. 2A:164--5) puts it, 'a program of specialized treatment for his mental and physical aberrations.' The recommendation being mandatory upon the trial court, defendant was committed, on August 20, 1964, to concurrent indeterminate terms for treatment on the carnal abuse and lewdness convictions covered by the act. ³ This resulted in possible detention for 30 years, the maximum imprisonment prescribed for carnal abuse, N.J.S.A. 2A:138--1, without credit for good behavior or work performed. N.J.S.A. 2A:164--6 and 10.

The purpose of the sex offender act is cure through treatment of the aberrations which caused the sexually deviant offenses rather than punishment. To that end the act provides for release under parole supervision 'when it shall appear to the satisfaction of the state parole board, after recommendation by a special classification review board appointed by the state board of control of institutions and agencies, that such person is capable of making an acceptable social adjustment in the community.' N.J.S.A. 2A:164--8. The converse is that if one so committed does not so respond to treatment and remains a menace to the community, he may be retained in confinement for the maximum term authorized for the crime of which he was convicted. See State v. Wingler, 25 N.J. 161, 175, 135 A.2d 468 (1957); State v. Mickschutz, 101 N.J.Super. 315, 320--321, 244 A.2d 318 (App.Div.1968).

The trial judge, however, went beyond the commitment under the sex offender act and imposed penal sentences for the offenses not then within the coverage of the act--10 to 15 years for incestuous conduct, 1 to 3 years for contributing to the delinquency of a minor and 1 to 3 years for possession of obscene pictures--, concurrent with each other, but consecutive to the sex offender commitment. This made for a maximum possible confinement of 45 years (less good time and work credits on the penal sentences). The propriety of the consecutive nature of these sentences is the issue before us.

Consideration of the issue is procedurally complicated because defendant did not appeal from the sentences ⁴ and did not raise the question in his first post-conviction relief petition. The chronology of pertinent events since the sentences must therefore be reviewed.

The first petition for post-conviction relief was filed, Pro se, in 1966. It sought to set aside the pleas on the grounds that they had not been voluntarily entered and that he had not had the effective assistance of counsel at the time. The transfer from Greystone Park State Hospital to Rahway was also attacked. Counsel was assigned. The trial court denied relief and the Appellate Division affirmed on April 11, 1968. 105 N.J.Super. 381, 252 A.2d 404.

In the meantime the sex offender act was amended, by L.1967, c. 274, approved January 11, 1968 and effective 30 days thereafter, to cover incest ⁵ (as well as private lewdness). After the decision of the Appellate Division, defendant filed a petition for certification to this court and a second petition for post-conviction relief, the latter on July 25, 1968. Both raised in essence the new question that the statutory amendment should be retroactively applied or that, in any event, defendant's sentence for incestuous conduct with his daughter consecutive to the sex offender commitment should, by reason of the policy prompting the amendment, be made concurrent therewith. We granted certification. 52 N.J. 500, 246 A.2d 457 (October 1, 1968). Some time thereafter the trial court dismissed the second post-conviction relief without prejudice. It is our understanding that it did so because the question raised thereby was pending in this court and indicated that defendant might file a new petition if we did not pass upon the question. The question was argued before us, ⁶ but we did not pass upon it. We affirmed the Appellate Division for the reasons that tribunal expressed, thereby dealing only with the issues presented to it. 54 N.J. 25, 252 A.2d 720 (May 5, 1969).

As has been indicated, defendant underwent therapy treatment in the unit from 1967 on. By May 1971 he had progressed to the point where the unit staff concluded that 'gains in all areas are more than sufficient for release to the community' and recommended parole as a sex offender. In view of the consecutive sentences to be served for the same type of offenses, the staff further recommended that he be allowed to serve those sentences in the unit rather than with the general prison population so he would not lose the effect of the therapy. The recommendation was adopted by the special classification review board and by the state parole board with the result that such parole was granted in the summer of 1971. Defendant has since remained in the unit and has continued to participate in the therapy program. He is, however, as far as release from confinement is concerned, no longer within the jurisdiction of the special classification review board, but rather exclusively within that of the state parole board.

The third and present petition for post-conviction relief was filed, Pro se, in September 1971. Apparently it was intended to be in response to the indication of the trial judge, in dismissing the second petition without prejudice, that a further petition questioning the consecutive penal sentences might be filed if this court did not pass on the issue, as we did not, on the appeal with respect to the second petition. While there was a considerable time lag between our 1969 decision and the filing of the third petition, we think it can fairly be attributed to defendant not having counsel during the period and to the fact that the penal sentences did not become a reality until the summer of 1971.

The petition asked that the penal sentences be made concurrent with the sex offender commitment on the ground that all of the offenses arose out of the same aberrations and that detention after these had been cured serves no useful purpose and in fact is repugnant to the philosophy and intent of the sex...