State v. Fernandez
| Citation | 506 A.2d 1245,209 N.J.Super. 37 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Federico R. FERNANDEZ, Defendant-Appellant. |
| Decision Date | 05 March 1986 |
| Court | New Jersey Superior Court — Appellate Division |
Thomas S. Smith, Acting Public Defender, for defendant-appellant (Meris L. Bergquist Designated Counsel, Trenton, of counsel and on letter brief).
Irwin I. Kimmelman, Atty. Gen., for plaintiff-respondent (Debra L. Stone, Deputy Atty. Gen., of counsel and on letter brief).
Before Judges MICHELS, GAULKIN and STERN.
The opinion of the Court was delivered by
MICHELS, P.J.A.D.
Defendant Federico R. Fernandez appeals from an order of the Law Division denying his petition for post-conviction relief.
Following plea negotiations, in December 1977, defendant pleaded guilty to (1) rape, a violation of N.J.S.A. 2A:138-1 (Third Count of Indictment No. 525-74-M); (2) rape while armed, a violation of N.J.S.A. 2A:138-1 and N.J.S.A. 2A:151-5; And (3) sodomy while armed, a violation of n.J.S.A. 2A:143-1 And N.J.S.A. 2A:151-5 (First and Second Counts of Indictment No. 95-77-S). The State, for its part of the plea agreement, recommended the dismissal of the remaining counts of both indictments.
In April 1978, defendant was sentenced to the Adult Diagnostic and Treatment Center in Avenel for indeterminate terms, not to exceed 30 years, for the two rape charges (Third Count of Indictment No. 525-74-M and First Count of Indictment No. 95-77-S), and to the State Prison in Trenton for 3 to 5 years for being armed while committing the rape, as charged in Indictment No. 95-77-S. These sentences were to run concurrently with each other. In addition, defendant was sentenced to Avenel for an indeterminate term, not to exceed 20 years, for sodomy (Second Count of Indictment No. 95-77-S) and to State Prison for 3 to 5 years, for being armed while committing the sodomy. These sentences were to run concurrently with each other and also concurrently with the sentences imposed for the rape and the rape while armed charges in Indictment Nos. 525-74-M and 95-77-S.
In May 1983, defendant moved to be resentenced pursuant to the provisions of N.J.S.A. 2C:1-1d(2) of the New Jersey Code of Criminal Justice (Code). Defendant claimed that he qualified for a 10 year sentence reduction based upon "good cause." He specifically asserted that such resentencing was warranted to reduce the disparity in punishment between him and those who had been sentenced for similar crimes under the provisions of Title 2C. The resentencing panel, concluding that there was not the requisite good cause for resentencing under the Code, denied defendant's application.
Thereafter, in June 1983, defendant filed a petition for post-conviction relief pursuant to R. 3:22-1, alleging that because he was sentenced under the provisions of Title 2A, and therefore could not receive good time and work credits which those sentenced under Title 2C are able to receive, his right to equal protection had been violated. Defendant claimed that, under these circumstances, his sentences were illegal and, therefore, he should be resentenced to a determinate term so that he would be able to receive commutation time for good behavior and work performed. The trial court denied the motion because (1) defendant had not exhausted his right to appeal from the resentencing panel's decision under R. 3:22-3; and (2) the sentences were not violative of defendant's constitutionally guaranteed equal protection rights. This appeal followed.
Defendant now seeks an order granting him the right to earn commutation time for good behavior and work performed on the following grounds set forth in his brief:
POINT I N.J.S.A. 2C:1-1d(1) MANDATES THAT DEFENDANT, COMMITTED TO THE ADULT DIAGNOSTIC AND TREATMENT CENTER FOR AN INDETERMINATE THIRTY YEAR TERM, BE GIVEN THE OPPORTUNITY
TO EARN COMMUTATION CREDITS FOR GOOD BEHAVIOR AND WORK PERFORMED.
POINT II THE FAILURE TO PROVIDE DEFENDANT WITH THE SAME RIGHT TO EARN COMMUTATION CREDITS AS HAS BEEN CONFERRED, SINCE THE EFFECTIVE DATE OF THE CODE, ON THOSE INMATES SERVING SIMILAR SENTENCES FOR SIMILAR CRIMES DEPRIVES HIM OF HIS RIGHT TO EQUAL PROTECTION OF THE LAW UNDER THE FEDERAL AND STATE CONSTITUTIONS.
POINT III DEFENDANT WHO SEEKS TO CHALLENGE THE DENIAL OF THE OPPORTUNITY TO EARN COMMUTATION CREDITS FOR GOOD BEHAVIOR AND WORK PERFORMED PROPERLY SOUGHT A REMEDY BY WAY OF MOTION FOR POST CONVICTION RELIEF.
We have carefully considered these contentions and all of the arguments advanced by defendant in support of them and find that they are clearly without merit. 1 R. 2:11-3(e)(2). However, some further comment is necessary with respect to the arguments raised by defendant in Points I and II.
In April 1978, defendant was sentenced to a 30 year indeterminate term at the Adult Diagnostic and Treatment Center at Avenel, pursuant to N.J.S.A. 2A:164-6 of the now repealed Sex Offender Act, N.J.S.A. 2A:164-3 et seq. This act specifically addressed the possibility of remission of sentence in N.J.S.A. 2A:164-10, which provided:
No statute relating to remission of sentence by way of commutation time for good behavior and for work performed shall apply to any such person committed pursuant to section 2A:164-6 of this title, but provision may be made for monetary compensation in [an] amount to be prescribed by the state board of control of institutions and agencies, in lieu of remission of sentence for work performed. [Emphasis supplied].
In August 1978, the Legislature enacted a comprehensive revision of the criminal laws of this State, known as the New Jersey Code of Criminal Justice (Code), N.J.S.A. 2C:1-1 et seq. which was to be effective on September 1, 1979. Under the Code, the preexisting ban on the award of commutation credits contained in N.J.S.A. 2A:164-10, was reenacted in N.J.S.A. 2C:47-6. However, in August 1979, prior to the effective date of the Code, the Legislature expressly repealed this section. L. 1979, c. 178, § 147. Accordingly, on September 1, 1979 and at all times thereafter, there has been no statutory prohibition on the award of commutation time for good behavior and work performed in remission of a sentence imposed pursuant to Title 2C. Therefore, those who have been sentenced under the Code to Avenel are immediately eligible for work and good behavior credits. Savad v. Department of Corrections, 178 N.J.Super. 386, 392, 429 A.2d 381 (App.Div.1981), certif. den., 87 N.J. 389, 434 A.2d 1071 (1981).
The enactment of the Code further effected a major change by providing that sex offenders were to be sentenced to a specific term of years, rather than to an indeterminate term. N.J.S.A. 2C:47-3b now provides:
In the event that the court shall sentence a person as provided herein, the court shall notwithstanding set the sentence in accordance with Chapters 43 and 44 of this code.
Consequently, pursuant to Title 2C, a sex offender is now sentenced to a determinate term, just as inmates incarcerated in State prisons would be. Cf. N.J.S.A. 2A:164-3 et seq. (repealed L. 1978, c. 95, § 2C:98-2) (providing for indeterminate term for those sentenced pursuant to the Sex Offender Act). Defendant contends, therefore, that the prohibition against his earning commutation time for good behavior and work performed, which was contained within N.J.S.A. 2A:164-10, should no longer be applicable to him because of the express repeal of this provision in 1979. He argues that, pursuant to N.J.S.A. 2C:1-1d(1), the Code was meant to control the treatment of prisoners, such as him, who committed offenses and were sentenced prior to its effective date.
Generally, offenses committed and penalties incurred prior to the repeal of a legislative act are not affected by such repeal, "unless it is expressly declared in the act by which such repeal or alteration is effectuated, that an offense [or] ... penalty ... already committed or incurred shall be thereby discharged, released or affected...." N.J.S.A. 1:1-15 (Emphasis supplied). Moreover, by virtue of N.J.S.A. 2C:1-1b, "[e]xcept as provided in subsections c. and d. of this section, the code does not apply to offenses committed prior to its effective date and ... dispositions for such offenses shall be governed by the prior law, which is continued in effect for that purpose, as if this code were not in force." We conclude that N.J.S.A. 2C:1-1d(1) is not applicable in these circumstances and, therefore, prior law controls the issue of credits with respect to a sex offender not resentenced under the Code. In the case of the repeal of the Sex Offender Act and the enactment of the Code, however, the Legislature specifically provided:
The provisions of the code governing the treatment and the release or discharge of prisoners ... shall apply to persons under sentence for offenses committed prior to the effective date of the code, except that the minimum or maximum period of their detention or supervision shall in no case be increased. [ N.J.S.A. 2C:1-1d(1) (Emphasis supplied) ].
Defendant argues that denying him the opportunity to earn commutation credits for good behavior and work performed is one aspect of his overall "treatment" as a prisoner and, therefore, N.J.S.A. 2C:1-1d(1) should be applicable. In order to properly consider the validity of this argument it is necessary to understand the difference in legislative intent which prompted the enactment of the Sex Offender Act, N.J.S.A. 2A:164-3 et seq., since it is clear that the Legislature sharply modified the philosophy of this act in adopting the Code. State v. Chapman, 95 N.J. 582, 591, 472 A.2d 559 (1984).
Under the now repealed Sex Offender Act, the primary purpose of sentencing was rehabilitative. Defendants were to be released upon their completion of a successful course of treatment, N.J.S.A. 2A:164-8 (repealed L. 1978, c. 95, § 2C:98-2), and were not to be punished thereafter. State v. Chapman, supra, 95 N.J. at 591, 472...
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