State v. Horton

• Decision Date: 19 May 2000
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Paul Raymond HORTON, Defendant-Appellant.
• Court: New Jersey Superior Court

751 A.2d 141

331 N.J. Super. 92

STATE of New Jersey, Plaintiff-Respondent, v. Paul Raymond HORTON, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued March 29, 2000.

Decided May 19, 2000.

Edward J. Crisonino, Cherry Hill, for defendant-appellant.

Christine A. Hoffman, Assistant Prosecutor, for plaintiff-respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Hoffman, of counsel and on the brief).

Before Judges BROCHIN, EICHEN and WECKER.

The opinion of the court was delivered by BROCHIN, J.A.D.

On September 21, 1995, defendant Paul Raymond Horton pleaded guilty pursuant to a plea agreement to a one-count accusation which charged him with third-degree endangering the welfare of a child (N.J.S.A. 2C:24-4(a)). In providing the factual basis for his plea, defendant, who was then sixty-nine years old, testified that he had touched a girl who was under the age of sixteen in the area of her breasts for the purpose of sexually gratifying himself.

The assistant prosecutor who appeared for the State described the plea agreement with defendant as follows:

[I]n exchange for waiver of indictment and plea of guilty to that ... one count accusation, it's the State's recommendation that the defendant be sentenced to 364 days in the Burlington County Jail to be served on weekends and also to be placed on probation. The terms and conditions of which would be in ... the sentencing Court's discretion.

This sentencing recommendation is the same as that stated in the plea form signed by defendant. In response to questions from the judge who took defendant's plea, defendant acknowledged he understood that his plea would subject him to imprisonment for up to five years, to a fine of up to $25,000, and to "certain other requirements that may be imposed upon you by what is commonly known as the Megan's law," including the requirement "to register with the Burlington County Prosecutor's Office." The judge asked defendant's attorney whether he had "go[ne] through this" with defendant. After the attorney assured the court, "Yes, we did," the colloquy between the court and defendant continued as follows:

Q. You understand you're going to have to register?

A. Yes, I understand that.

Q. All right. And that once you have registered, the Prosecutor's Office will make a determination of what level of notification, if any, is necessary?

A. Yes.

Q. And that depending upon what level of ... notification is necessary, it's possible that community groups and other public notice may be given?

A. Yes.

Q. And do you also understand that once the Prosecutor's Office has made that determination, you are entitled to ask for a hearing on whether the determination is appropriate and proper?

A. Yes.

Q. And that you may, in fact, be subject to community supervision?

A. Yes.

Defendant was sentenced on January 12, 1996. The judgment of conviction entered on January 12, 1996, reads as follows:

Defendant is sentenced to Probation for a period of two (2) years with the following conditions:

Defendant shall serve 180 days on weekends in the Burlington County Jail; credit of 2 days;

Defendant to continue counseling with Ken Singer, LCSW until Mr. Singer feels no longer needed; defendant to follow all recommendations;

Defendant is to have no unsupervised contact with children under the age of 16 yrs.

No transcript of the sentencing has been furnished to us.¹

Defendant completed his counseling with Mr. Singer on August 20, 1997. He finished serving his jail time on September 30, 1995, and his probation on January 12, 1998.

On April 15, 1997, the chairperson of the State Parole Board wrote the sentencing judge requesting the court to "advise whether the sentence imposed by you was required to include a special sentence of community supervision for life pursuant to N.J.S.A. 2C:43-6.4"² because defendant had committed his sexual offense after October 31, 1994, the effective date of that statute. Letters from the Parole Board to the sentencing judge dated July 17, 1997, October 30, 1997,³ January 22, 1998, and July 21, 1998, reiterated the request.

By a notice of motion dated July 24, 1997, the prosecutor moved to amend defendant's judgment of conviction "to reflect the imposition of community supervision for life." Defendant cross-moved to set aside his plea agreement if the State's motion to amend the judgment was granted. The motions were argued July 29, 1997. No decision was announced until January 25, 1999, when the sentencing judge issued a letter opinion which directed amendment of the judgment of conviction to include a provision of community supervision for life. No mention was made of defendant's conditional cross-motion to withdraw his guilty plea. However, the implication of the court's opinion is that the cross-motion was denied. An amended judgment of conviction was entered on January 27, 1999, reiterating the previously imposed provisions of defendant's sentence and, in addition, sentencing him to community supervision for life.

Defendant has appealed. He argues that "[n]o court rule allows for amending a sentence eighteen months after it is entered to impose a term of lifetime parole"; "[p]lacing the defendant on parole for life violates double jeopardy"; and "[t]he defendant should have been allowed to withdraw his guilty plea."

We agree with the State that a court has the inherent power to correct an illegal sentence even though there is no rule expressly authorizing it. See State v. Jurcsek, 247 N.J.Super. 102, 111 n. 3, 588 A.2d 875 (App.Div.), certif. denied, 126 N.J. 333, 598 A.2d 891 (1991); State v. Kirk, 243 N.J.Super. 636, 643, 581 A.2d 115 (App.Div.1990); State v. Paladino, 203 N.J.Super. 537, 549, 497 A.2d 562 (App. Div.1985). We turn, therefore, to the questions whether, in the particular circumstances of this case, the exercise of that power to impose community supervision for life is prohibited by considerations of double jeopardy or of fundamental fairness. The following cases shed light on that issue.

In State v. Baker, 270 N.J.Super. 55, 636 A.2d 553 (App.Div.),aff'd o.b., 138 N.J. 89, 648 A.2d 1127 (1994), Baker was convicted of robbery, attempted kidnaping, kidnaping, and aggravated sexual assault. One month before Baker committed these crimes, an amendment of the kidnaping statute increased the sentence to twenty-five years' imprisonment without parole eligibility or a specific term between twenty-five years' imprisonment and imprisonment for life, with twenty-five years of parole ineligibility, if the victim suffered a sexual assault during the kidnaping and was less than sixteen years old. Baker's victim was less than sixteen years old. But, the amendment was not called to the attention of the sentencing judge. He sentenced Baker to an aggregate term of twenty-seven years' imprisonment with eleven years' parole ineligibility. Baker appealed his conviction. His notice was late, but we granted leave to appeal nunc pro tunc. Thirteen months later, the State moved for leave to file an out-of-time cross-appeal from the illegal sentence and we granted its motion. In an unreported opinion, we affirmed defendant's conviction and remanded the case to the Law Division for re-sentencing according to the amended statute. On remand, Baker was sentenced to an aggregate term of twenty-five years' imprisonment without eligibility for parole. His motion for post-conviction relief on the ground of inadequate assistance of counsel was denied. He appealed to us from that denial and from the re-sentencing, arguing that the twenty-five year term of imprisonment without parole eligibility, which more than doubled the term of parole ineligibility originally imposed, violated the double jeopardy clauses and the due process guarantees of the Federal and State Constitutions. We affirmed.

We summarized the applicable law as follows:

Generally, jeopardy attaches once a defendant commences serving a term of imprisonment. 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). Consequently, a defendant who has begun to serve a sentence ordinarily may not be resentenced to an increased term, including any increase in a period of parole ineligibility. See State v. Cruz, 125 N.J. 550, 559-63, 593 A.2d 1169 (1991). However, if the original sentence imposed upon a defendant is illegal, the sentence may be corrected at any time, even if this requires an increase in the term of imprisonment. Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947); State v. Kirk, 243 N.J.Super. 636, 641-45, 581 A.2d 115 (App.Div.1990); State v. Sheppard, 125 N.J.Super. 332, 336, 310 A.2d 731 (App.Div.), certif. denied, 64 N.J. 318, 315 A.2d 407 (1973).

[State v. Baker, supra, 270 N.J.Super. at 72, 636 A.2d 553.]

See also United States v. DiFrancesco, 449 U.S. 117, 134, 101 S.Ct. 426, 436, 66 L.Ed.2d 328, 344 (1980) ("[A] sentence does not have the qualities of constitutional finality that attend an acquittal.").

We stated, "[W]e find no basis in federal case law to conclude that a twenty month delay by the government in seeking to correct an illegal sentence ... forecloses a court from imposing a statutorily mandated sentence," State v. Baker, supra, 270 N.J.Super. at 74, 636 A.2d 553, and we ruled that New Jersey law was also no bar to increasing Baker's sentence. Id. at 74-76, 636 A.2d 553. In language that is applicable to the present case, we said:

We would frustrate this legislative directive [to impose the more severe sentence] if we were to conclude that defendant may avoid the statutorily required minimum sentence because the trial court, unaware of the recent legislative amendment, initially failed to impose the mandated period of parole ineligibility, and the prosecuting authorities, also unaware of the amendment, failed to challenge the sentence for more than a year-and-a-half. Under these circumstances, we conclude that even if d

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