State v. Eigenmann

• Decision Date: 23 March 1995
• Citation: 655 A.2d 452,280 N.J.Super. 331
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Joseph EIGENMANN, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 331

280 N.J.Super. 331

655 A.2d 452

STATE of New Jersey, Plaintiff-Respondent, v. Joseph EIGENMANN, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Dec. 14, 1994.

Decided March 23, 1995.

Susan L. Reisner, Public Defender, for appellant (William Welaj, Designated Counsel, on the brief).

Michael Brooke Fisher, Cumberland County Prosecutor, for respondent (Theresa A. Berresford, Asst. Prosecutor, on the brief).

Before Judges GAULKIN, KESTIN and RODRIGUEZ.

The opinion of the court was delivered by

GAULKIN, P.J.A.D.

This sentence appeal comes before us for the third time.

In November 1990, defendant was found guilty by a jury of first-degree aggravated sexual assault ( N.J.S.A. 2C:14-2a(3)), simple assault ( N.J.S.A. 2C:12-1a(1)) and third-degree terroristic threats ( N.J.S.A. 2C:12-3b). He was sentenced as a young adult offender ( N.J.S.A. 2C:43-5) to concurrent custodial terms aggregating 28 months. The State appealed, contending that the sentences were illegal; defendant cross-appealed, alleging a number of trial errors. We affirmed the convictions in June 1992, but found that the court "could not lawfully impose less than five-year indeterminate terms on the first- and third-degree convictions." ¹ The matter was accordingly remanded to the trial court for resentencing.

The original sentencing judge had died. When the resentencing was moved before another Law Division judge in July 1992, defense counsel advised the court that defendant had fully served his 28-month sentences and had "maxed out." Counsel argued that "double jeopardy bars any additional time" and that in any event "the outer limits of [any additional sentence] ... is five years." The judge rejected those contentions, finding that defendant "has no vested interest in any illegal sentence." The judge chose not to sentence defendant as a young adult offender but rather committed him to the custody of the Commissioner of the Department of Corrections for concurrent terms aggregating fifteen years.

Defendant appealed, urging that the sentence "violates double jeopardy" and that "sentence should have been imposed pursuant to the young adult offender statute." This court affirmed in a June 1993 order, determining that "the sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion." In December 1993, on defendant's petition for certification, the Supreme Court summarily remanded the matter to us "for consideration of the double jeopardy issue on the merits."

I

At the original sentencing, the trial judge described the first-degree offense as "vicious" and "brutal," but told defendant that he had "a right" to be sentenced as a young adult offender and that he would "extend that statute to you because that's the law and I intend to follow the law." The judge correctly recited that a five-year indeterminate term was the mandated young adult offender sentence for a crime having a statutory maximum sentence above five years, and that "for good cause shown, the Court can impose a sentence up to the statutory maximum." The judge stated his intent to impose "the maximum that I can sentence you," which he found to be 28 months, apparently relying on "the primary [parole] eligibility terms available to me under the young adult offender [statute]." At the conclusion of the sentencing, the judge stated that the concurrent 28-month indeterminate sentences "are the maximum that the statute provides. If I could do any better, I would, but that's all I can do, I'm helpless."

The State immediately asked the trial judge to stay the sentence because "the State is exercising its right to appeal that sentence pursuant to N.J.S.A. 2C:44-1f(2)." The judge found that statute inapplicable and accordingly denied a stay. The State then moved before us for a stay of sentence pending appeal, which we granted. However, neither the prosecutor nor defense counsel took any steps to effectuate the stay and defendant served out his 28-month sentence in full. In the papers before us defendant avers, without objection or contradiction, that he was never given an opportunity to make any election to execute, or not execute, his sentence pending appeal. See R. 2:9-3(d).

We reject the State's argument that, pursuant to R. 2:9-3(d), defendant waived his right to challenge any sentence increase on grounds that execution of the sentence had commenced. As the trial judge found, the original sentence was not imposed pursuant to N.J.S.A. 2C:44-1f(2): that section provides only that, with respect to first- and second-degree crimes, the State may appeal (1) any noncustodial or probationary sentence and (2) any custodial sentence appropriate to a crime of one degree lower. The mandate that the sentence "shall not become final for 10 days in order to permit the appeal of such sentence by the prosecution," ibid., thus never came into play. The R. 2:9-3(d) waiver provision, which applies only to appeals taken by the State pursuant to N.J.S.A. 2C:44-1f(2), was never implicated. In any event, defendant's uncontradicted showing is that he did not elect to execute the sentence after it had been stayed. The condition fixed by R. 2:9-3(d) for imposing a waiver thus was not satisfied. See State v. Williams, 203 N.J.Super. 513, 497 A.2d 550 (App.Div.1985). Defendant's double jeopardy challenge to the sentence increase has not been waived.

II

The double jeopardy provisions of both the United States and New Jersey Constitutions protect against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense. United States v. DiFrancesco, 449 U.S. 117, 129, 101 S.Ct. 426, 433, 66 L.Ed.2d 328, 340 (1980); No Illegal Points v. Florio, 264 N.J.Super. 318, 332, 624 A.2d 981 (App.Div.), certif. denied, 134 N.J. 479, 634 A.2d 526 (1993). The issue is whether the resentencing here resulted in multiple punishments for the same offense.

Our Supreme Court has described DiFrancesco as holding that "the touchstone of the double jeopardy analysis lies in the expectation of finality that a defendant vests in his sentence." State v. Sanders, 107 N.J. 609, 619, 527 A.2d 442 (1987). Thus a defendant who has begun to serve his sentence may not be exposed to an increase in its term if he "had no reason to expect that his original sentence was not final at the time it was imposed and his imprisonment began." State v. Ryan, 86 N.J. 1, 10, 429 A.2d 332, cert. denied, 454 U.S. 880, 102 S.Ct. 363, 70 L.Ed.2d 190 (1981); see also Sanders, 107 N.J. at 620, 527 A.2d 442. No defendant can claim a legitimate expectation of finality in a sentence below the statutorily mandated minimum sentence; an illegal sentence can be corrected even if it means increasing the term of a custodial sentence that defendant has begun to serve. State v. Baker, 270 N.J.Super. 55, 74-77, 636 A.2d 553 (App.Div.), aff'd o.b., 138 N.J. 89, 648 A.2d 1127 (1994).

Defendant therefore is in no position to dispute that his illegal 28-month sentence could be increased after he had begun serving that term. The question is whether he was lawfully resentenced to an ordinary, i.e., not a young adult, custodial term greater than the minimum young adult offender sentence of five years.

No reported New Jersey decision has expressly considered whether a sentence below the statutory minimum can be increased beyond that required to remedy the illegality. By and large, our cases increasing illegal sentences either sustain the imposition of the minimum sentence authorized by statute, e.g., Baker, supra; State v. Sheppard, 125 N.J.Super. 332, 310 A.2d 731 (App.Div.), certif. denied, 64 N.J. 318, 315 A.2d 407 (1973), or order resentencing without discussion of any possible limitations. See, e.g., State v. Kirk, 243 N.J.Super. 636, 581 A.2d 115 (App.Div.1990); State v. Fisher, 115 N.J.Super. 373, 279 A.2d 885 (App.Div.1971). A few of the cases, however, offer useful, if indirect, guidance.

In State v. Jurcsek, 247 N.J.Super. 102, 588 A.2d 875 (App.Div.), certif. denied, 126 N.J. 333, 598 A.2d 891 (1991), the trial judge had erroneously sentenced defendant for third-degree, rather than second-degree, theft. We ordered resentencing, noting that, because defendant had not begun serving his sentences, "the imposition of an appropriate term for a second-degree offense will not raise any double jeopardy questions." Id. at 110, 588 A.2d 875. The implication is that the court's authority may be more limited in resentencing to correct an illegal sentence after execution of the sentence has begun.

In State v. Towey, 244 N.J.Super. 582, 583 A.2d 352 (App.Div.), certif. denied, 122 N.J. 159, 584 A.2d 226 (1990), defendant had been sentenced to a 10-year custodial term with five years of parole ineligibility on her plea of guilty to first-degree aggravated manslaughter. The 10-year term was the minimum permissible base term for the offense and the five-year parole disqualifier was the maximum imposable on that base term. Defendant appealed the sentence, contending that a maximum parole disqualifier is inconsistent with a minimum base term. We affirmed, but the Supreme Court remanded for resentencing because of two "errors": the trial court did not explain or justify either the imposition of the minimum base term or the inconsistency between that term and the maximum parole disqualifier. At resentencing, the trial judge imposed a 15-year base term with five years of parole ineligibility.

On defendant's appeal, we held that fifteen years was the appropriate base term, but its imposition "violated [defendant's] constitutional right against double jeopardy." Id. at 596, 583 A.2d 352. Noting that defendant had not challenged the minimum base term, but only the parole ineligibility term, we found that "she had an expectation that the base prison term of ten years would be preserved...