State v. Johnson

• Decision Date: 12 June 1981
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. James F. JOHNSON, Defendant-Appellant.
• Court: New Jersey Superior Court — Resentencing Panel

Page 1

182 N.J.Super. 1

439 A.2d 614

STATE of New Jersey, Plaintiff-Respondent, v. James F. JOHNSON, Defendant-Appellant.

Superior Court of New Jersey, Resentencing Panel.

Decided June 12, 1981.

Susan Green, Asst. Public Defender, for defendant-appellant (Stanley C. Van Ness, Public Defender, attorney).

Marc J. Friedman, Deputy Atty. Gen., for plaintiff-respondent (James R. Zazzali, Atty. Gen., attorney).

Before Judges COLEMAN, MARZULLI and YANOFF.

The opinion of the court was delivered by

YANOFF, J. S. C. (retired and temporarily assigned on recall).

The only issue before us is a factual determination as to "good cause" under N.J.S.A. 2C:1-1 d(2). We understand our dissenting colleague and the Appellate Division take the view that we resentenced for disparity alone. Our review of the record indicates the contrary; we relied on a complex of facts, especially Johnson's record at the Adult Diagnostic Treatment Center (ADTC).

In 1962 Johnson was sentenced under a plea agreement on four charges: rape, and three separate charges of assault with intent to rape. He was determined to be a compulsive and repetitive sex offender, pursuant to the Sex Offender Act (N.J.S.A. 2A:164-3), and received an indeterminate sentence of 30 years for the rape and three indeterminate 12-year terms for the assaults with intent to rape, all consecutive. His aggregate sentence was thus 66 years, indeterminate.

He was paroled in 1974. While on parole he was charged with impairing the morals of a minor, in violation of N.J.S.A. 2A:96-3, and abduction, in violation of N.J.S.A. 2A:86-3. By agreement, he pled guilty to the morals charge and received an indeterminate three-year sentence, consecutive to the previous sentences, thereby increasing the indeterminate term to 69 years.

According to defendant, he made advances to a 12-year-old girl, believing her to be a prostitute, and when she rebuffed him, put his arms around her and began kissing her.

In 1979 Johnson applied for post-conviction relief as to the three 12-year terms. In consequence, the sentences on these were made concurrent to each other and the 30-year term, consecutive, so that there was a reduction to an indeterminate 33 years, of which three were on the morals charge. No appeal was taken. The result is one of the facts upon which we must base our findings. We are not free to determine whether the post-conviction relief decision was wrong, or to act as if the reduction of sentence had not occurred, or to say that because Johnson has committed four sex offenses he cannot possibly obtain relief under N.J.S.A. 2C:1-1 d(2).

Johnson was sentenced to an indeterminate term as a sex offender under N.J.S.A. 2A:164-3, for the purpose of treatment and cure. The premise of the statute is that he is suffering from an "aberation" which can be cured. He is to be released when he is "capable of making an acceptable social adjustment in the community" (N.J.S.A. 2A:164-8), apparently cured from his aberration. He is at ADTC, not for punishment but for treatment. State v. Wingler, 25 N.J. 161, 182, 135 A.2d 468, 479 (1957) (dissenting opinion). State v. Clark, 65 N.J. 426, 323 A.2d 470 (1974), iterates the same principle. It was there held that a penal term for a sex offense consecutive to an indeterminate term at ADTC was improper. Justice Hall said:

The prime difficulty with consecutive penal sentences for non-covered sex offenses is that they are absolute and must be served even though, as has proved to be the situation here, treatment is considered to have been so successful as to warrant release on parole otherwise. (at 435, 323 A.2d 470)

The 2C technique for dealing with sex offenders is different from that which prevailed before September 1, 1979. Now a sex offender, like any other defendant, must be given a definite sentence under chapters 43 and 44 of the Code of Criminal Justice. N.J.S.A. 2C:47-3 b. This means that in a proper case he can receive a mandatory minimum sentence (N.J.S.A. 2C:43-6), or an extended term (N.J.S.A. 2C:43-7). But, as before, he "shall be released under parole supervision when it shall appear ... that such person is capable of making an acceptable social adjustment in the community...." N.J.S.A. 2C:47-5. The Code recognized that the Sex Offender Act has not been repealed, and that the object of confining a compulsive and repetitive sex offender to ADTC is therapeutic, not punitive. That is why our dissenting colleague's observations about Johnson's prior record are inappropriate. Johnson is receiving therapy. True, it is forced therapy, but under our sex offender program he is to be treated, not punished. For better or worse, by our law he is not being chastised. To bring up his prior record and say that he is a bad man and should be made to suffer for it, under the circumstances, is simply a non-sequitur. The decision that he should receive therapy was made in 1962; after almost 20 years, this is not the time to punish him.

Our dissenting colleague says that "The probabilities are that he continues to be a risk." Infra at 619. We note this is an opinion which the staff at ADTC does not share.

Nor are we free to disregard Johnson's record at the ADTC. If the findings there may be used to deny relief State v. Rothfeld, 170 N.J.Super. 514, 406 A.2d 1348 (Law Div.1979); State v. Von Graevenitz, 176 N.J.Super. 210, 214, 422 A.2d 788 (App.Div.1980), they should be equally available when they are helpful to an applicant.

The ADTC report of March 6, 1979 states:

On his present incarceration certain difficulties have occurred. Mr. Johnson has consistently demonstrated good understanding of his previous raping pattern, leading this therapist and the Treatment Staff to the conclusion that he needs no further work in this area. However, he has steadfastly maintained his innocense (sic) in his present IMM offense and sought legal remedies although he has been stymied in his appeal attempts. His motivation has suffered due to his perception that he cannot be released if he does not admit to an offense that he denies.

The report of July 27, 1979, reads:

On his present incarceration certain difficulties have occurred. Mr. Johnson has consistently demonstrated good understanding of his previous raping pattern, leading this therapist and the Treatment Staff to the conclusion that he needs to further work in this area. However, he has steadfastly maintained his innocense (sic) in his present IMM offense and sought legal remedies, although he has been stymied in his appeal attempts. His motivation has suffered due to his perception that he cannot be released if he does not admit to an offense that he denies, and yet, due to the length of his backup time, he will remain in prison indefinitely.

The report of January 14, 1980 states:

Approximately one year ago, the Staff considered this problem and recommended that Mr. Johnson be cell paroled from his 66 year backup time to his 3 year IMM sentence. The rationale was that he had sufficient insight and maturity necessary to deal with his past dynamics as a rapist, although the Staff was not convinced that he did not commit the IMM offense to which he pled guilty. The SCRB at that time did not concur with this recommendation, but referred Mr. Johnson back to the Staff until that time when the Staff felt ready to recommend parole on both sentences. Mr. Johnson has maintained his involvement in therapy. However, at this time there does not appear to be any change in Mr. Johnson's legal predicament or the dilemma of the Staff.

Thus, there are three bases for a finding of "good cause." First, disparity of sentence. The congruent offense for the rape charge is N.J.S.A. 2C:14-2, aggravated sexual assault, a first-degree offense, which carries a 20-year maximum. This is two-thirds of the 30-year sentence. The Panel determined that the equivalent offense for impairing the morals of a minor was N.J.S.A. 2C:24-4, a fourth-degree offense, with an 18-month maximum. The Appellate Division did not decide whether this determination was correct. State v. Johnson, 176 N.J.Super. 1, 4, 421 A.2d 1016 (1981). A violation of N.J.S.A. 2C:24-4 is not one of the crimes for which an offender under the Code may be referred to the ADTC. N.J.S.A. 2C:47-1. The disparity in sentence as to the morals charge, therefore, consists not merely in a term twice as long as the Code term, but in the fact that Johnson is being held on a sentence which cannot be reduced by "good time." Savad v. Corrections Dep't, 178 N.J.Super. 386, 429 A.2d 381 (App.Div.1981). Second, that as to his entire sentence of 33 years, Johnson cannot earn "good time." Savad, supra. Third, the fact that staff at ADTC has concluded that Johnson is a good risk for return to the community, except for the fact that for some reason he refuses to admit his guilt on the morals charge. Why this is so, we do not know. It may be that he falsely admitted his guilt at the plea hearing. It may be that he is convinced the girl was a prostitute and that in a moral sense he was not guilty. It is possible that something within him keeps him from making this obeisance as the price for release. But this failure to utter the magic words is unimportant when contrasted with his over-all good adjustment.

Johnson is now almost 57 years old. He has been in ADTC for over 18 years. This, too, is a fact which, in conjunction with the enumerated items, leads us to conclude there is "good cause."

Judge MARZULLI concurs in this opinion.

COLEMAN, J. S. C. (dissenting).

By order of the Supreme Court this case was remanded to us to articulate the reasons supporting "good cause", as required by N.J.S.A. 2C:1-1(d)(2) for changing defendant's sentences. I interpret this order to permit an articulation of reasons militating against good cause as well. Since I do not concur in the opinion of the majority in its attempts to articulate good cause, I must dissent. A brief summary of the procedural history is...