State v. Cooper

• Decision Date: 01 July 1969
• Citation: 54 N.J. 330,255 A.2d 232
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. William Joseph COOPER and Robert Paul Murfitt, Defendants-Appellants.
• Court: New Jersey Supreme Court

Page 330

54 N.J. 330

255 A.2d 232

STATE of New Jersey, Plaintiff-Respondent, v. William Joseph COOPER and Robert Paul Murfitt, Defendants-Appellants.

Supreme Court of New Jersey.

Argued Feb. 18, 1969.

Decided July 1, 1969.

Harold N. Springstead, Asst. Prosecutor, for respondent (Guy W. Calissi, Bergen County Prosecutor, Attorney).

Gerald T. Foley, Jr., Newark, for appellants (Richard Newman, Deputy Public Defender, Attorney).

The opinion of the court was delivered by

HANEMAN, J.

Defendants applied separately to the Appellate Division for leave to appeal as indigents from separate judgments of the Bergen County Court denying their respective petitions for appointment of counsel and for post conviction relief. The Appellate Division granted defendants leave to appeal, denied them counsel and dismissed their appeals as patently frivolous and without merit. Defendants then filed individual petitions for certification to this Court. We granted leave to each defendant to appeal and ordered the appeals consolidated. 52 N.J. 169, 244 A.2d 300 (1968).

The undisputed facts are as follows: On March 30, 1960, defendants and one Joseph Michael Moon who does not appeal, were indicted in the United States District Court for the District of New Jersey, on two counts: (1) for robbery of money of the River Edge, New Jersey, Savings and Loan Association, in violation of 18 U.S.A.C. § 2113(a), and (2) for putting the life of the bank president, W. Sheldon Davis, in jeopardy by use of a dangerous weapon, to wit, a firearm, in violation of 18 U.S.C.A. § 2113(d). On May 31, 1960, in the course of trial, defendants pleaded guilty to the indictment. On July 1, 1960, they each received ten year terms on each count, the terms to run concurrently.

Two weeks before the imposition of the federal court sentences, two indictments were returned in Bergen County against each of the defendants. The first, and the one involved here, charged them with feloniously carrying and possessing a dangerous weapon, to wit, a gun, with intent to use it unlawfully against another, on February 27, 1959 in River Edge, New Jersey, contrary to N.J.S. 2A:151--56, N.J.S.A. The second charged them with kidnapping Davis on the same date. Defendants pleaded not guilty to the first indictment on July 12, 1960, but retracted this plea and pleaded guilty on November 30, 1962. The second indictments, charging kidnapping, were then dismissed. On January 4, 1963, they were each sentenced to the New Jersey State Prison for nine years, 364 days to ten years, the sentences to run consecutively to the federal sentences they were then serving.

Four years later, defendants filed the above mentioned petitions for post-conviction relief. (By this time they had been released by the federal authorities into state custody to begin their sentences.)

Although defendants raised various grounds for reversal in both courts below, only two appear in the petition for certification filed here by the Public Defender. (The balance defendants have raised Pro se.) The first ground for reversal urged by the Public Defender is that the sentences were arbitrary and excessive and therefore should be vacated; the second, that the state prosecution following the federal conviction placed defendants twice in jeopardy for the same offense. We shall discuss these grounds in that order.

I.

Are the sentences arbitrary, excessive and illegal because there was a difference of only one day in the minimum and maximum terms?

As above stated, defendants were sentenced to nine years, 364 days to ten years. The thrust of their argument is that these sentences are arbitrary. They reason that because the minimum sentence has a direct bearing on the length of time a convict must serve before being eligible for parole, the statutory provision requiring that a minimum and a maximum sentence be imposed, N.J.S. 2A:164--17, N.J.S.A., is for the purpose of parole. They argue that the imposition of the type of sentence here imposed is in effect an evasion of the parole statute (N.J.S.A. 30:4--123.1, et seq.) and therefore arbitrary and an abuse of discretion.

In order to assay the merits of defendants' arguments it is necessary to ascertain the origin and purposes of the minimum-maximum sentence mandate and its relation to parole. We proceed first to consider the history of sentencing. In State v. Moore, 21 N.J.Super. 419, 91 A.2d 342 (App.Div.1952), in tracing the history of sentencing, the court said:

'The common law punished treason and felony with death, corruption of blood, loss of dower and forfeiture of lands, goods and chattels and, on conviction of misdemeanor, the punishment was that of fine and imprisonment, in the discretion of the court. O'Regan and Schlosser, Criminal Laws of New Jersey, p. 128, sec. 113. In 1898, the Legislature adopted 'An Act for the punishment of crimes (Revision of 1898),' L.1898, c. 235, p. 794, and by sec. 217, provided that the penalty of one convicted of a high misdemeanor 'shall be punished by a fine of not exceeding two thousand dollars, or by imprisonment with or without hard labor, as the court may direct, for any term not exceeding seven years, or both,' and by sec. 218, one convicted of a misdemeanor, the imposition of a fine not exceeding $1,000, or by imprisonment, with or without hard labor, as the court may direct, for any term not exceeding three years, or both. In 1911 (L.1911, c. 191, p. 356), the 1898 act (L.1898, c. 237, p. 866), was amended to provide that a sentence to State Prison shall set forth a maximum term which shall be equal to the limit of imprisonment as provided in the 1898 act, its supplements or amendments, for the crime for which the prisoner was sentenced and likewise set forth a minimum term of not less than one year and not more than one-half of such maximum term.' (at pp. 426--427, 91 A.2d at p. 346).

Chapter 214 of the Laws of 1914 changed this to require that the minimum be not more than two-thirds of the maximum, and L.1922, c. 50, allowed the maximum to be less than or equal to the limit of imprisonment provided for in the 1898 Act. L.1932, c. 166 did away with most of the limitations of the prior law, providing merely that

'All sentences to the New Jersey State Prison shall hereafter be for a maximum and minimum term, except sentences for life, but the maximum term shall not be in excess of the maximum term prescribed by law for the offense for which the offender was convicted. The minimum term shall not be less than one year.'

Despite further amendments, I.e., L.1951, c. 99, L.1953, c. 276, L.1954, c. 174, the purport of the provision with which we are here particularly concerned, remained static. See N.J.S. 2A:164--17, N.J.S.A.

We turn next to the subject of parole. In 1911, the Board of Inspectors of the State Prison was given, subject to the approval of the Governor, power to parole a prisoner at the expiration of his minimum sentence. L.1911, c. 191. This power was given by the same Act which first required the imposition of a minimum and maximum sentence. (Prior to this Act, parole eligibility had been set at one-half the sentence minus commutation time. See 2 Compiled Statutes, § 171, p. 1877.) Chapter 166 of the Laws of 1932 authorized the Board of Managers of the New Jersey State Prison to parole any prisoner at the expiration of the minimum sentence but L.1936, p. 194, § 2 increased the required time to be served for parole eligibility of second, third and fourth offenders to respectively, one-third, one-half or three-quarters of the imposed maximum. When L.1948, c. 84, created the State Parole Board it provided:

'10. No inmate of a penal or correctional institution serving a sentence for a fixed minimum and maximum term shall be eligible for consideration for release on parole until he has served his minimum sentence, less commutation time therefrom for good behavior and for diligent application to work assignments or one-third of his fixed maximum sentence without regard to commutation time, whichever occurs sooner, subject to the provisions of section twelve hereof.'

Section 12 declared that second, third and fourth offenders were declared eligible for parole upon serving respectively, one-half, three-fourths and the full maximum sentence less time allowance for diligent performance of work. Currently, commutation time is applied to both the minimum and one-third of the maximum in the case of a first offender. L.1956, c. 102 § 1. See N.J.S.A. 30:4--123.10. Second, third and fourth offenders now serve one-half, two-thirds and four-fifths of their maximum sentences, respectively, before becoming eligible for parole. L.1955, c. 15. See N.J.S.A. 30:4--123.12. Despite subsequent amendments, the temporal provisions for parole eligibility of first offenders have remained static since 1956 and for multiple offenders since 1955.

It is apparent that under the current statutory scheme the requirement for the imposition of a minimum sentence is important solely for parole purposes. In that connection it has an effect only in the case of a first offender and then only when the imposed minimum term is less than one-third of the maximum. Defendants acknowledge that they do not fall into the category of first offenders. The minimum, therefore, has no effect on their parole eligibility. Even if they were first offenders, imposition of a high minimum forcing them to serve one-third of their maximum, minus commutation time, before eligibility, does not subvert the power of the parole board. For a first offender, as above noted, any minimum in excess of one-third of the fixed maximum has no bearing on parole eligibility as time for eligibility cannot exceed one-third of that maximum. It follows that a minimum, regardless how greatly in excess of one-third of...