State v. Rodriguez

Decision Date01 August 1984
Citation478 A.2d 408,97 N.J. 263
PartiesSTATE of New Jersey, Plaintiff-Appellant, v. Angel Acosta RODRIGUEZ, Defendant-Respondent.
CourtNew Jersey Supreme Court

Keith M. Endo, Deputy Atty. Gen., for plaintiff-appellant (Irwin I. Kimmelman, Atty. Gen. of New Jersey, attorney).

Claire Drugach, Asst. Deputy Public Defender, for defendant-respondent (Joseph H. Rodriguez, Public Defender, attorney).

The opinion of the Court was delivered by

HANDLER, J.

In this case defendant was convicted of several serious crimes, including felony murder and robbery, and given separate custodial sentences on each of these convictions, which aggregated thirty years with fifteen years of parole ineligibility. The issue is whether, upon a merger of the convictions for felony murder and robbery following defendant's appeal, double jeopardy precludes resentencing the defendant after he has begun to serve the sentence originally imposed.

I

At 8:00 P.M. on November 1, 1980, defendant, Angel Acosta Rodriguez, entered the apartment of Maria Cruz, who lived with her grandson, Pedro Cruz, and mentally-retarded daughter, Evelyn Castro. After leaving the apartment to go drinking, defendant returned. Pedro awoke to see defendant sexually assaulting Evelyn. Hidden in the closet, Pedro saw his grandmother attempt to stop defendant. Defendant punched Maria and then followed her into the kitchen. Pedro left the closet, looked into the kitchen, and watched as Rodriguez shot Maria and subsequently removed money from her brassiere.

At trial, defendant objected to the appointment of Blanca Castro as interpreter for her sister Evelyn, who spoke Spanish and had a speech impediment. Rodriguez claimed Blanca, as sister of the sexual assault victim and daughter of the murder victim, would not or could not be impartial. The court overruled the objection, allowing Blanca to act as interpreter, but appointed an official court interpreter to check any partiality. The court ruled that Evelyn was competent to be a witness and capable of expressing herself with the help of her sister.

Defendant was convicted by the jury of murder, N.J.S.A. 2C:11-3, sexual contact, N.J.S.A. 2C:14-3(b), aggravated assault, N.J.S.A. 2C:12-1(b)(4), unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), and robbery, N.J.S.A. 2C:15-1. He was sentenced to a term of twenty years with a minimum ten-years parole ineligibility period for felony murder, to two concurrent terms of eighteen months for criminal sexual contact and aggravated assault, to a concurrent term of three years for the unlawful possession of a handgun, and to a term of ten years with a minimum five-years parole ineligibility period for the predicate felony, robbery, consecutive to his sentence for felony murder. Penalties were also imposed on each of the counts under the Violent Crimes Compensation Board Act.

Defendant appealed his conviction, claiming reversible trial error relating to the appointment of Blanca Castro, the victim's sister, as interpreter and the trial court's determination that Evelyn Castro was a competent witness. He also asserted that the convictions for felony murder and robbery merged and, further, that the aggregate sentence that had been imposed was excessive. The Appellate Division, in an unreported opinion, affirmed defendant's conviction for felony murder, criminal sexual contact, aggravated assault, and unlawful possession of a handgun, but merged defendant's conviction for robbery with defendant's conviction for felony murder, vacating the sentence imposed for robbery. The court found the sentences imposed not excessive. In addition, the Appellate Division denied the State's request for a remand to the trial court for resentencing de novo for felony murder as a result of the merger of the robbery conviction. The court also found that Evelyn Castro was a competent witness and that the trial court had ample justification in appointing her sister, Blanca Castro, as interpreter, along with the court interpreter. The State filed a petition for certification, seeking review of the Appellate Division's judgment denying resentencing. Defendant also filed a petition for certification seeking review of the affirmance of his convictions based on the asserted trial errors. We granted the State's petition and denied defendant's cross-petition, 94 N.J. 547, 468 A.2d 196 (1983).

II

The issue in this case is whether the trial court has the power to resentence the defendant in excess of the criminal sentence for felony murder upon the merger of the robbery conviction into the felony murder conviction. In deciding that double jeopardy 1 barred the court from resentencing the defendant for felony murder in excess of the twenty years he had received originally upon this conviction, the Appellate Division stated that "it is clear that in this State we adhere to the principle that after a sentence has gone into operation the courts lose power to increase it," citing State v. Ryan, 86 N.J. 1, 429 A.2d 332, cert. den., 454 U.S. 880, 102 S.Ct. 363, 70 L.Ed.2d 190 (1981), and other cases.

In Ryan, we addressed the extent to which double jeopardy protection against multiple punishment precludes a court from increasing a defendant's sentence once he has served part of it. There, defendant was sentenced to concurrent terms of three to five years in prison. After serving approximately six months in custody, he requested and was granted a modification of his sentence. Id. at 3, 429 A.2d 332. He was placed in a drug program and given two-years probation. When defendant violated his probation, the judge resentenced him to a term longer than the original sentence, relying on language in N.J.S.A. 2A:168-4 permitting the imposition of "any sentence which might originally have been imposed." 2 Id. at 4, 429 A.2d 332.

The Court reversed, holding that double jeopardy considerations militate against increasing defendant's prison sentence when he has already served a portion of the custodial term. Id. at 8-9, 429 A.2d 332. Probation violations, we noted, should not be punished under the statute as a separate offense. Id. at 8, 429 A.2d 332. Consequently, because the focus in defendant's resentencing remained on or related to the original offense, that sentence could not be enhanced after it had already gone into effect. Id. at 8-9, 429 A.2d 332.

Our decision in Ryan was strongly influenced by the Supreme Court decision in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). There the Court considered whether defendant, after a prior criminal conviction had been set aside and a new trial ordered at his behest, could be reconvicted and sentenced to a longer term without constitutional violation. The Supreme Court upheld the constitutionality of an increased sentence because defendant, by succeeding in getting his conviction reversed on appeal, wiped the slate--the original conviction and sentence--clean. Id. at 721, 89 S.Ct. at 2078, 23 L.Ed.2d at 667. However, the Supreme Court further held that due process of law requires in such a situation that the sentencing judge affirmatively state his or her reasons for increasing the original sentence. Id. at 726, 89 S.Ct. at 2081, 23 L.Ed.2d at 670. See Wasman v. United States, --- U.S. ----, 104 S.Ct. 3217, 81 L.Ed.2d ---- (1984) (defendant's increased sentence after retrial following a successful appeal does not violate Due Process Clause if sentencing authority affirmatively identifies relevant conduct or events that intervened since original sentencing proceeding).

In Ryan, we concluded that the slate was not "wiped clean" as in Pearce, because only the original custodial sentence itself had been modified and suspended; the underlying conviction had never been attacked or changed. 86 N.J. at 13-14, 429 A.2d 332. By contrast, in the present case, defendant has challenged on appeal not only his sentences but the underlying substantive convictions. He has partially succeeded, in that the felony murder and robbery convictions were merged and, as a result, the robbery conviction, having been merged into the felony murder conviction, was set aside.

Ryan also carefully considered and distinguished its holding from United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). DiFrancesco addressed the constitutional finality of a sentence once pronounced in light of a statute that specifically authorized the sentence to be increased. Differentiating a sentence from the underlying substantive conviction, the Supreme Court noted that "[h]istorically, the pronouncement of sentence has never carried the finality that attaches to an acquittal." Id. at 133, 101 S.Ct. at 435, 66 L.Ed.2d at 343. Relying on Pearce, supra, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, the Supreme Court emphasized the vigor of the doctrine that no rule of finality applies to the pronouncement of a sentence, whether that sentence is challenged after retrial or appeal. DiFrancesco, supra, 449 U.S. at 135-36, 101 S.Ct. at 436-37, 66 L.Ed.2d at 344-45. Thus, the Supreme Court concluded that defendant, whose sentence was appealed by the Government through statutory authority, "has no expectation of finality in his sentence until the appeal is concluded or the time to appeal has expired." Id. at 136, 101 S.Ct. at 437, 66 L.Ed.2d at 345; see State v. Hodge, 95 N.J. 369, 471 A.2d 389 (1984); State v. Roth, 95 N.J. 334, 471 A.2d 370 (1984).

In contrast, in Ryan, supra, 86 N.J. 1, 429 A.2d 332, the underlying statute did not specifically authorize sentence enhancement. Compare N.J.S.A. 2C:44-1(f)(1) with N.J.S.A. 2A:168-4; see State v. Roth, supra, 95 N.J. at 359, 471 A.2d 370; State v. Hodge, supra, 95 N.J. at 376, 471 A.2d 389. Moreover, the original conviction for the underlying offense itself had not been disturbed by any appellate proceedings or by the subsequent violation of probation. Hence, Ryan can be understood...

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