State v. Haliski

Decision Date20 April 1995
Citation656 A.2d 1246,140 N.J. 1
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Joseph Leon HALISKI, Defendant-Appellant.
CourtNew Jersey Supreme Court

Stephen W. Kirsch, Asst. Deputy Public Defender, argued the cause for appellant (Susan L. Reisner, Public Defender, attorney).

Carol M. Henderson, Deputy Atty. Gen., argued the cause for respondent (Deborah T. Poritz, Atty. Gen. of New Jersey, attorney; Richard W. Berg, Deputy Atty. Gen., on the letter in lieu of brief).

The opinion of the Court was delivered by COLEMAN, Justice.

The central issue in this appeal is whether a second Graves Act offender may be sentenced to a mandatory extended term of imprisonment while the first Graves Act conviction is pending on appeal or the time to appeal that conviction has not expired. A second issue is whether defendant may have his sentence increased to an extended sentence following affirmance of the first Graves Act conviction without violating principles of fundamental fairness.


A jury found defendant guilty of first-degree robbery, a violation of N.J.S.A. 2C:15-1. In a presentence hearing conducted pursuant to N.J.S.A. 2C:43-6d, the trial court found that defendant was armed with a firearm during the commission of the robbery and was therefore subject to a mandatory extended-term sentence under the Graves Act, N.J.S.A. 2C:43-6c. The court found that a mandatory extended prison term was required because defendant previously had been convicted of another armed robbery with a firearm. The trial judge sentenced defendant on June 22, 1990, to a mandatory extended term of fifty years with seventeen years of parole ineligibility. The extended sentence was to run consecutive to a fifteen-year prison term with five years of parole ineligibility imposed for his first Graves Act conviction. The first Graves Act offense, which made defendant eligible for the mandatory extended term, was on appeal when defendant was sentenced on June 22, 1990.

In an unpublished opinion dated April 15, 1992, the Appellate Division affirmed defendant's second robbery conviction. The court, however, vacated the sentence and remanded the matter for resentencing based on the Deputy Attorney General's impression that defendant "must be resentenced because he was sentenced as a second Graves Act offender before the time to appeal his prior Graves Act conviction had expired." We denied defendant's petition for certification. 130 N.J. 393, 614 A.2d 616 (1992).

On remand, the trial court resentenced defendant on July 10, 1992, to an ordinary prison term of fifteen years with a five-year term of parole ineligibility. The sentence was made to run consecutive to the sentence imposed for the first Graves Act robbery. At the time of the resentencing, the trial judge apparently was unaware the Appellate Division had affirmed the first Graves Act conviction eighty-seven days earlier in an unreported decision dated April 14, 1992. Indeed, counsel for defendant informed the judge, "I believe that appeal is still pending even as we speak." Without intending any criticism, we note that this oversight may have been caused by the fact that neither of the Appellate Division decisions mentioned the other, even though both were decided by the same judges and filed one day apart.

On October 9, 1992, the State filed a motion pursuant to Rule 3:21-10(b)(4) to vacate the ordinary term sentence on the second Graves Act robbery. The State alleged the sentence was illegal at the time it was imposed because the Appellate Division already had affirmed the first Graves Act conviction and no petition for certification had been filed. The State relied on State v. Paladino, 203 N.J.Super. 537, 549, 497 A.2d 562 (App.Div.1985), for its assertion that an illegal sentence is correctable at any time. Defendant concedes that he could have no legitimate expectations of finality in an illegal sentence. The trial court granted the State's motion and imposed the original mandatory extended term. Defendant also concedes that the only legal sentence as of the time of that second resentencing was the one imposed based on the State's October 9 motion.

The Appellate Division affirmed the reimposition of the mandatory extended term. 273 N.J.Super. 157, 641 A.2d 549 (1994). The majority opinion ruled that in sentencing a second Graves Act offender whose prior Graves Act conviction is pending on appeal, the court must impose initially an ordinary prison term because N.J.S.A. 2C:44-4b directs that a conviction is not to be considered "prior" before "the time to appeal has expired." Id. at 160, 641 A.2d 549. The majority further held that once the prior Graves Act conviction is affirmed, the State is entitled to have the sentence increased to an extended term. Ibid. The court reasoned that the ordinary sentence is rendered illegal by the affirmance of the prior Graves Act conviction, and an illegal sentence may be corrected at any time. Ibid. (citing Rule 3:22-2(c)); State v. Kirk, 243 N.J.Super. 636, 581 A.2d 115 (App.Div.1990)). The court found that correcting the illegal sentence did not violate considerations of fundamental fairness in view of the legislative mandate.

In a concurring opinion, Judge Stern disagreed with the rule of law announced by the majority. 273 N.J.Super. at 161, 641 A.2d 549. He found no statutory authority for the proposition that a legal ordinary Graves Act sentence may later be increased to an extended term following an affirmance of a prior Graves Act conviction. Nor did he find any authority for concluding that an extended term may be imposed subject to a subsequent decrease should the prior conviction be reversed on appeal. Id. at 162, 641 A.2d 549. He was persuaded that the clear language of N.J.S.A. 2C:44-4b prohibits a court from considering a prior judgment as a conviction for Graves Act extended-term purposes if there is an appeal pending, or the time to appeal has not expired. He expressed the view that the Legislature, not the Judiciary, should address the apparent ambiguity in the statutory scheme. Id. at 163, 641 A.2d 549.

Even though Judge Stern disagreed with the rule announced in the majority decision, he concurred in the judgment of the court based on his conclusion that the imposition of the Graves Act extended term under the circumstances presented did not violate defendant's due-process or double-jeopardy rights. Id. at 164, 641 A.2d 549. Relying on State v. Rodriguez, 97 N.J. 263, 271, 478 A.2d 408 (1984), he reasoned that because defendant's initial appeal challenged the conviction itself as well as the sentence, defendant had no legitimate expectation of finality with respect to his sentence. 273 N.J.Super. at 164, 641 A.2d 549. Hence, the majority and concurring opinions agreed that imposition of the mandatory extended term, once the prior conviction had been affirmed, did not infringe defendant's constitutional rights. Id. at 165, 641 A.2d 549. We granted certification, 137 N.J. 310, 645 A.2d 139 (1994). We affirm the sentence imposed, but we reject the sentencing procedure approved by the Appellate Division.


This case requires us to resolve the tension between two statutes, N.J.S.A. 2C:43-6c and N.J.S.A. 2C:44-4b, which touch upon the legislative intent to require mandatory terms of imprisonment for some repeat offenders who use or possess firearms during the commission of certain offenses. Those statutes must be analyzed against the backdrop of the well-established principle that instead of rehabilitation, "the Graves Act approach is deterrence through the promise of imprisonment." State v. Des Marets, 92 N.J. 62, 71, 455 A.2d 1074 (1983); see also State v. Stewart, 96 N.J. 596, 601, 477 A.2d 300 (1984) (stating that Graves Act "seeks to deter crime, not to rehabilitate criminals").

The Graves Act directs that under some circumstances a defendant who has a prior Graves Act conviction must be required to serve an extended sentence. The Graves Act mandatory extended-sentence provision, N.J.S.A. 2C:43-6c, provides:

A person who has been convicted of an offense enumerated by this subsection and who used or possessed a firearm during its commission, attempted commission or flight therefrom and who has been previously convicted of an offense involving the use or possession of a firearm as defined in 2C:44-3d., shall be sentenced by the court to an extended term as authorized by 2C:43-7c., notwithstanding that extended terms are ordinarily discretionary with the court.

N.J.S.A. 2C:44-4b defines "prior conviction of a crime" as follows:

An adjudication by a court of competent jurisdiction that the defendant committed a crime constitutes a prior conviction, although sentence or the execution thereof was suspended, provided that the time to appeal has expired and that the defendant was not pardoned on the ground of innocence.

Defendant argues that the plain language of N.J.S.A. 2C:44-4b demands that a conviction cannot be considered "prior" for purposes of enhanced sentencing under the Graves Act unless "the time to appeal [that prior conviction] has expired." He claims further that a literal reading of N.J.S.A. 2C:44-4b is supported by State v. Mangrella, 214 N.J.Super. 437, 445, 519 A.2d 926 (App.Div.1986), certif. denied, 107 N.J. 127, 526 A.2d 194 (1987). As a corollary, defendant asserts that the failure of the Legislature to act to amend N.J.S.A. 2C:44-4b following Mangrella is indicative of the Legislature's approval of that decision's application of N.J.S.A. 2C:44-4b.

Mangrella held that chronologically sequential convictions (first offense must be the first conviction or judgment) are not required for imposition of discretionary sentence-enhancement as a "persistent offender" under N.J.S.A. 2C:44-3a. Id., 214 N.J.Super. at 445, 519 A.2d 926. In that discretionary sentence enhancement context, Mangrella also held that all judgments that otherwise satisfy the requirements...

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