State v. Roth

• Citation: 95 N.J. 334,471 A.2d 370
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Henry Michael ROTH, Defendant-Respondent.
• Decision Date: 07 February 1984
• Court: United States State Supreme Court (New Jersey)

Page 334

95 N.J. 334

471 A.2d 370

STATE of New Jersey, Plaintiff-Appellant, v. Henry Michael ROTH, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Oct. 12, 1983.

Decided Feb. 7, 1984.

Anthony Martinez, Asst. Prosecutor, for plaintiff-appellant (John J. Stamler, Union County Prosecutor, attorney).

James A. Vigliotti, Elizabeth, for defendant-respondent (Heim & Barisonek, Roselle, attorneys).

Victoria Curtis Bramson, Deputy Atty. Gen., for amicus curiae Atty. Gen. (Irwin I. Kimmelman, Atty. Gen., attorney).

Mark H. Friedman, Asst. Deputy Public Defender, for amicus curiae Public Defender (Joseph H. Rodriguez, Public Defender, attorney).

The opinion of the Court was delivered by

O'HERN, J.

This is the first time we have addressed in detail the standards that guide sentencing and review courts under the Code of Criminal Justice, N.J.S.A. 2C:1-1 to 98-4, and that govern the State's right to appeal sentences under N.J.S.A. 2C:44-1(f)(2). It is our view that the Code established an entirely new sentencing process. It displaced standards established under prior decisional law, created presumptive terms of imprisonment, and limited the discretionary power of sentencing courts. Our appellate supervision of the sentencing process in this case requires us to remand for sentencing in accordance with the standards we define today.

Defendant Roth pleaded guilty to a charge of aggravated sexual assault. The presence and threatened use of a weapon made the offense a crime of the first degree. N.J.S.A. 2C:14-2(a)(4). On June 28, 1982, a young mother strolling a child on a Cranford street was stopped by defendant. At knifepoint he forced her under a bridge overpass. She pleaded with him not to harm her or her baby. At fear of injury, she was forced to perform a sexual act upon him. He did not injure the child sleeping in the carriage.

Tests performed on Roth while he was in custody revealed a severe alcohol dependence and a drug abuse problem. His past criminal offenses were alcohol-related. The Avenel Adult Diagnostic and Treatment Center found no evidence of compulsive psychosexual behavior and reported that Roth did not come under the sex offender provisions of N.J.S.A. 2C:47-1 to -7. The Trenton Psychiatric Hospital, the defense psychiatrist, and the Runnells Hospital Alcoholic Rehabilitation Unit were unanimous that Roth should receive extensive treatment for his substance abuse in a residential facility. The sentencing judge received over 30 letters from parish priests, employers, friends, relatives, neighbors, naval shipmates, and drug treatment professionals urging that Roth not be imprisoned, that his behavior was out of character, and that the incident was the result only of his drug and alcohol problems. Earlier on the day of the crime, Roth had been drinking heavily and had consumed half a quaalude.

The trial court sentenced Roth to five years' probation on condition that he undergo a specified in-patient rehabilitation program and that he continue his visits to Alcoholics Anonymous.

The State appealed on February 28, 1983, pursuant to N.J.S.A. 2C:44-1(f)(2). ¹ We directly certified the case under R. 2:12-1. 94 N.J. 622 (1983).

I.

A.

It was once axiomatic that criminal sentences were beyond the scope of appellate review. In State v. Benes, 16 N.J. 389, 396, 108 A.2d 846 (1954), Justice Brennan said "[a] judgment of sentence is not ordinarily revisable by an appellate court where the sentence is within authorized statutory limits." See also In re Lewis, 11 N.J. 217, 94 A.2d 328 (1953).

State v. Johnson, 67 N.J.Super. 414, 170 A.2d 830 (App.Div.1961), surveyed the history of appellate review of sentences and found the only impediments to such review were "historical assumptions and meagre precedent." Id. at 427, 170 A.2d 830. Judge Gaulkin wrote that the courts had the "power to correct an illegal or improper sentence," id. at 428, 170 A.2d 830 (quoting State v. Culver, 23 N.J. 495, 505, 129 A.2d 715 (1957)) (emphasis in Johnson ), and concluded "we have the right to revise a sentence where it is manifestly excessive, even though within authorized statutory limits." Johnson, 67 N.J.Super. at 432, 170 A.2d 830. ²

Since Johnson, "[t]he defendant's right to appeal from his sentence as manifestly excessive has become firmly established in our State." State v. Kunz, 55 N.J. 128, 141 (1969). While the right of appellate review in New Jersey has been established, this right had been exercised exclusively by defendants in appealing sentences that while within the statutory maximum, were found to be excessive. See, e.g., State v. Leggeadrini, 75 N.J. 150, 380 A.2d 1112 (1977); State v. Hicks, 54 N.J. 390, 255 A.2d 264 (1969); State v. Bess, 53 N.J. 10, 247 A.2d 669 (1968).

A State appeal that seeks to increase a defendant's sentence presents other distinct problems. In State v. Ryan, 86 N.J. 1, 9, 429 A.2d 332 (1981), a pre-Code case, we held that double jeopardy principles barred the imposition of any increased sentence after violation of probation when the defendant already served a portion of that custodial sentence.

We have not yet passed on the constitutionality of the State's right to appeal under N.J.S.A. 2C:44-1(f)(2). It has been argued in this case that such an appeal is unconstitutional under the Double Jeopardy Clauses of the New Jersey Constitution, Art. I, par. 11, and the Federal Constitution, Amend. V, as made binding on the states. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). We disagree.

Precedents are few because at common law the prosecution had no right to appeal in any criminal case, much less appeal the length of a sentence. See generally Note, 9 Rutgers L.Rev. 545 (1955). Thus, the government cannot take an appeal in a criminal case absent express statutory authority. United States v. Sanges, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445 (1892); State v. Watson, 183 N.J.Super. 481, 444 A.2d 603 (App.Div.1982). For a long time, then, statutory restrictions on government appeals made discussion of the constitutional question unnecessary. With the 1971 revision of 84 Stat. 1890, 18 U.S.C.A. § 3731, Congress allowed government appeals up to the limits of the Constitution. This triggered Supreme Court decisions on whether such appeals violated the Double Jeopardy Clause of the Fifth Amendment.

In United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975), Justice Marshall reviewed the history of the Double Jeopardy Clause and concluded it "was directed at the threat of multiple prosecutions, not at Government appeals, at least where those appeals would not require a new trial." Id. at 342, 95 S.Ct. at 1021, 43 L.Ed.2d at 241. The government could therefore take an appeal when the trial court granted the defendant's postverdict motion and dismissed the indictment; even if the government succeeded on appeal, the jury's guilty verdict would be reinstated and there could not be a second prosecution. See also United States v. Martin Linen Supply Co. 430 U.S. 564, 569-70, 97 S.Ct. 1349, 1353-1354, 51 L.Ed.2d 642, 650 (1977).

The specific question of the right of government to appeal sentences was addressed by the Court in United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). That case involved the government's right to appeal a sentence imposed under the "dangerous special offender" provisions of the Organized Crime Control Act. By a 5-4 vote, the Court held such appeals, when explicitly authorized by Congress, did not violate the Double Jeopardy Clause's proscription against multiple trials. Id. at 132, 101 S.Ct. at 434-435, 66 L.Ed.2d at 342. The court rejected the argument that imposition of sentence is an "implied acquittal" of any harsher sentence and, therefore, not appealable. Id. at 133, 101 S.Ct. at 435, 66 L.Ed.2d at 343. The defendant does not have any expectation of finality if the statute authorizes government appeal. More important, with the determination of guilt made, the defendant is not subject to the harassment and risk of multiple prosecution the Double Jeopardy Clause was meant to prohibit. Id. at 136, 101 S.Ct. at 437, 66 L.Ed.2d at 345. The dissenters focused on the Double Jeopardy Clause's protection against multiple punishment and argued that imposition of sentence should be accorded the same finality as an acquittal. Id. at 144, 66 L.Ed.2d at 350, 101 S.Ct. at 441 (Brennan, J., dissenting).

The right of the State to appeal sentences is a troubling question, as evidenced by the Supreme Court's five to four split in DiFrancesco. We have consistently followed the principles of the federal Double Jeopardy Clause because its language is broader than our State's. State v. Barnes, 84 N.J. 362, 370, 420 A.2d 303 (1980); State v. Lynch, 79 N.J. 327, 340, 399 A.2d 629 (1979); State v. Rechtschaffer, 70 N.J. 395, 404, 360 A.2d 362 (1976); State v. Jones, 188 N.J.Super. 201, 204-06, 457 A.2d 37 (App.Div.1983). Although we are free to construe our State constitutional provisions more expansively than the Supreme Court construes the corresponding federal provisions, particularly when there are peculiarly local considerations, State v. Hunt, 91 N.J. 338, 345, 450 A.2d 952 (1982), we find no such considerations here to give a broader reading to our concededly narrower State Double Jeopardy Clause. See State v. Farr, 183 N.J.Super. 463, 444 A.2d 593 (App.Div.1982).

Nor do we find that the provisions for State sentence appeal lack sufficient standards to guide decisionmakers thus resulting in arbitrary and uneven sentence appeal by prosecutors: "Vague laws deprive citizens of adequate notice of proscribed conduct, Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888, 890 (1939), and fail to provide officials with guidelines sufficient to prevent arbitrary and erratic enforcement." Town Tobacconist v. Kimmelman, 94 N.J. 85, 118, 462 A.2d 573 (1983). As we shall see in Part...