State v. Crouch

• Decision Date: 16 May 1988
• Citation: 225 N.J.Super. 100,541 A.2d 1092
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Harold CROUCH, a/k/a Askia Abdussalaam, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 100

225 N.J.Super. 100

541 A.2d 1092

STATE of New Jersey, Plaintiff-Respondent, v. Harold CROUCH, a/k/a Askia Abdussalaam, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Feb. 29, 1988.

Decided May 16, 1988.

Harold Crouch, pro se.

W. Cary Edwards, Atty. Gen., for plaintiff-respondent (Jessica S. Oppenheim, Deputy Atty. Gen., of counsel, and on the brief).

Before Judges O'BRIEN, HAVEY and STERN.

The opinion of the court was delivered by

O'BRIEN, J.A.D.

This case involves the "unmerging" prior to resentencing of two convictions which had been merged before imposition of the original sentence. Defendant appeals from separate consecutive sentences imposed upon him on resentencing for convictions of robbery ( N.J.S.A. 2C:15-1a(1)) and aggravated assault ( N.J.S.A. 2C:12-1b(1)). The two convictions had been merged prior to his original sentence, but were "unmerged" prior to resentencing, which had been ordered upon the vacation of his original sentence as illegal, on defendant's petition for post-conviction relief. We affirm.

On February 4, 1981, defendant and another man approached Rita Anderson who is blind in one eye, her husband Olaf Anderson, age 70, who has only one leg, and their mentally retarded child as they were walking to a rescue mission for a meal. Defendant asked Olaf where he and his friend could get something to eat. In response Olaf invited them to accompany his family to the rescue mission. After walking three-quarters of a block defendant suddenly grabbed Rita around the neck from behind, pressed a sharp object into her side and started choking her. He then grabbed at her handbag. In the process he threw her to the ground. As a result, she hit her head on a building, fell and suffered a fractured clavicle.

The grand jury returned a two-count indictment, charging in the first count that defendant "did, in the course of committing a theft, inflict bodily injury upon Mary Rita Anderson contrary to the provisions of N.J.S. 2C:15-1a(1)...." [Emphasis supplied.] This charges a second degree robbery. The second count charged that defendant "did commit an aggravated assault upon Mary Rita Anderson by knowingly causing serious bodily injury to said Mary Rita Anderson contrary to the provisions of N.J.S. 2C:12-1(b)(1)...." [Emphasis supplied.] This discrepancy in the indictment as to the extent of the bodily injury inflicted caused the problem.

Defendant was convicted on both counts and was sentenced on July 10, 1981. The presentence report contained this statement on the first page:

FINAL CHARGES:

COUNT ONE. ROBBERY WITH BODILY INJURY, IN VIOLATION N.J.S. 2C:15-1(A)1, FIRST DEGREE.

COUNT TWO. AGGRAVATED ASSAULT IN VIOLATION N.J.S. 2C:12-1(B)(1), SECOND DEGREE.

Prior to sentencing the judge inquired of defendant and his counsel as follows:

THE COURT: Thank you. Are there any additions or corrections you would seek to make to the presentence report?

MR. SACHS: No, Your Honor. Pardon me. I have gone over this with Mr. Crouch, read it out to him aloud, and we have gone over it and there are no additions or corrections.

THE COURT: Mr. Crouch, are there any additions or corrections which you would like to make to the presentence report?

THE DEFENDANT: No.

The sentencing judge prefaced his sentence as follows:

THE COURT: Thank you. I have before me for sentence the defendant Harold Leon Crouch under Indictment 793-80-J. Count number one is the offense of robbery with serious bodily injury contrary to 2C:15-1, an offense of the first degree. Count number two is an aggravated assault, and under the circumstances the facts which make this a first degree robbery are also the facts which constitute the aggravated assault, that is, the infliction of serious bodily injury, and thus I would hold and do determine that Count two merges with Count one for the purpose of this particular sentence. ¹ [Footnote supplied.]

The judge then imposed a sentence of 20 years with a ten-year period of parole ineligibility consecutive to any parole violation. He also imposed a $500 penalty payable to the Violent Crimes Compensation Board. The judge fully recited the reasons for the sentence imposed. In the judgment, after reciting the sentence, appears the language, "The 2nd count merges." At sentencing neither defendant nor his attorney disagreed with the judge's statement that the robbery conviction was a first degree crime because of the serious bodily injury inflicted. ²

We affirmed defendant's conviction on November 12, 1982. We found no merit to defendant's contention that the sentence imposed was manifestly excessive. Although defendant also claimed on the appeal that the verdict was against the weight of the evidence and that the aggravated assault had not been proven, he did not allege any error in the judgment of conviction that he had been convicted and sentenced for a first degree robbery. Defendant's petition for certification was denied by the Supreme Court on February 2, 1983. His motion for reconsideration of sentence was denied on April 19, 1983, and a petition for writ of habeas corpus was dismissed without prejudice by the United States District Court on August 23, 1985.

Defendant then moved for post-conviction relief. In his memorandum in support of that petition, he contended that he was charged with second degree robbery in the first count of the indictment since the allegation was that in the course of committing a theft he inflicted bodily injury, not serious bodily injury. Although in that memorandum he noted that he was also charged with aggravated assault, which he recognized as a second degree offense, he did not specifically observe that the language of the second count of the indictment charged that he caused "serious bodily injury." The judge who heard the petition for post-conviction relief concluded that the sentence imposed was illegal and directed that defendant be resentenced ³ and referred the matter to the original sentencing judge for that purpose.

At the resentencing hearing on May 9, 1986 the judge "unmerged" the aggravated assault and sentenced defendant for the robbery to a ten-year term with a five-year period of parole ineligibility, and on the conviction for aggravated assault imposed a consecutive ten-year term with a five-year period of parole ineligibility. Thus the aggregate sentence imposed upon defendant was the same as that originally imposed.

On this appeal, defendant advances the following legal arguments:

POINT I INCREASE IN AGGRAVATED ASSAULT SENTENCE AFTER APPEAL HAD CONCLUDED VIOLATED BOTH STATE AND FEDERAL DOUBLE JEOPARDY CLAUSE.

POINT II THE TRIAL JUDGE ERRED IN IMPOSING CONSECUTIVE SENTENCES FOR PARTS OF A SINGLE OFFENSE.

POINT III DEFENDANT'S SENTENCE SHOULD BE VACATED AS THE SENTENCE WAS IMPOSED CONTRARY TO THE MANDATORY SENTENCING GUIDELINES.

Defendant was convicted of two offenses, robbery and aggravated assault. In finding defendant guilty of aggravated assault the jury was required to find that defendant attempted to cause or caused serious bodily injury to the victim as they were charged by the trial judge. Had the indictment alleged that in the course of committing the theft defendant inflicted serious bodily injury upon the victim, the robbery would have been a first degree crime under N.J.S.A. 2C:15-1b based upon the jury's verdict that the victim suffered serious bodily injury. Under those circumstances, the second degree aggravated assault would properly merge into the first degree robbery as the sentencing judge did. Although the error was not discovered by anyone at the time of sentencing, through the appellate process and on application for habeas corpus, it was finally discovered on defendant's motion for post-conviction relief. Thus, defendant could not have had an expectation of finality in the sentence imposed for the robbery since he contended on his motion for post-conviction relief that the sentence was illegal. See State v. Rodriguez, 97 N.J. 263, 478 A.2d 408 (1984). However, defendant argues that he received a sentence of "zero" years on his conviction for aggravated assault and that sentence was not appealed nor alleged to be illegal in the petition for post-conviction relief. We disagree.

Defendant's argument is based upon a faulty premise. The aggregate sentence imposed upon him for robbery specifically included the conviction for aggravated assault by the merger and therefore was appropriately unmerged when it was discovered that the indictment charged second and not first degree robbery. Thus, even though the jury found the victim had suffered serious bodily injury, defendant was not charged in the robbery count of the indictment with causing that serious bodily injury, and thus could only be convicted and sentenced for second degree robbery. However, he still stood convicted of aggravated assault upon which the jury found the victim sustained serious bodily injury. Under these circumstances, the trial judge correctly concluded at resentencing that, pursuant to N.J.S.A. 2C:1-8a, the aggravated assault did not merge into the robbery. To convict defendant of second degree robbery it was only necessary for the jury to find that he inflicted bodily injury in the course of committing the theft, whereas for second degree aggravated assault it was necessary to prove that he attempted to cause or did cause serious bodily injury as the trial judge charged the jury. It is evident that the trial judge clearly understood the interplay between the grading provisions for robbery and the proofs necessary for aggravated assault. The error resulted from the language of the indictment which precluded defendant from being convicted of first degree robbery.

The Constitution does not prevent correction of inadvertent errors in sentencing. State v. Matlack, 49 N.J. 491, 502, 231 A.2d 369, cert. den. 389 U.S. 1009, 88 S.Ct. 572, 19 L.Ed.2d 606 (1967). In Bozza v. United States, 330 U.S. 160, ...