State v. Sanders

• Decision Date: 09 July 1987
• Citation: 107 N.J. 609,527 A.2d 442
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Lois SANDERS and Donald Sanders, Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 609

107 N.J. 609

527 A.2d 442

STATE of New Jersey, Plaintiff-Appellant, v. Lois SANDERS and Donald Sanders, Defendants-Respondents.

Supreme Court of New Jersey.

Argued March 31, 1987.

Decided July 9, 1987.

Catherine A. Foddai, Deputy Atty. Gen., for plaintiff-appellant (W. Cary Edwards, Atty. Gen., attorney).

John R. Grele, Asst. Deputy Public Defender, for defendants-respondents (Alfred A. Slocum, Public Defender, attorney).

The opinion of the Court was delivered by

STEIN, J.

In this appeal, we consider whether a trial court must set bail immediately after sentencing in order to preserve the State's right to appeal a sentence pursuant to N.J.S.A. 2C:44-1f(2). The sentencing court in this case stayed defendants' sentences for ten days as required by the statute, but declined to entertain applications for bail until after the State filed its notice of appeal. The Appellate Division, in dismissing the State's appeal concluded that the failure to establish bail resulted in defendants' partial execution of their sentences, and that any increase in their sentences on appeal would therefore violate federal and state double jeopardy protections. State v. Sanders, 212 N.J.Super. 599, 606-07, 515 A.2d 1256 (1986). In our view, the State's right to contest a sentence under N.J.S.A. 2C:44-1f(2) does not depend on the availability of bail at the time of sentencing. Accordingly, we reverse the judgment of the Appellate Division. Moreover, because the sentences imposed in this case violate the guidelines contained in the Code of Criminal Justice, we remand the matter to the Law Division for resentencing in accordance with this opinion.

I

In June 1985, defendants entered retraxit pleas of guilty to charges of conspiracy, N.J.S.A. 2C:5-2; theft by deception of property exceeding $75,000 in value, N.J.S.A. 2C:20-4; promoting gambling, N.J.S.A. 2C:37-2; and two counts of making gifts to public servants, N.J.S.A. 2C:27-6b. ¹ Defendants' indictment on these charges arose out of their involvement in Co-Op Investments, a complex "pyramid" scheme that they operated with several other individuals in California, New Jersey, and Illinois. ² Potential investors paid $625 in order to participate and were promised potential returns of up to $35,000. Through the use of complicated charts and fictionalized names, defendants ensured that they would keep most of the funds invested by the participants. According to defendant Donald Sanders, over 2,000 New Jersey residents "invested" more than $1,000,000 in Co-Op Investments. See State v. Sanders, supra, 212 N.J.Super. at 602-03, 515 A.2d 1256.

Defendants were sentenced on August 1, 1985. At the sentencing hearing, the court found as aggravating factors the nature and circumstances of the offense, N.J.S.A. 2C:44-1a(1); ³ the fact that defendants' conduct constituted organized criminal activity, N.J.S.A. 2C:44-1a(5); defendants' prior criminal records (both had been convicted of similar offenses in California and Illinois), N.J.S.A. 2C:44-1a(6); and the need to deter defendants and others from violating the law, N.J.S.A. 2C:44-1a(9). In mitigation, the court found that the victims in this case facilitiated the crime, N.J.S.A. 2C:44-1b(5); that defendants were willing to perform community service, N.J.S.A. 2C:44-1b(6); that they had led law-abiding lives for a substantial period before commission of the subject crimes, N.J.S.A. 2C:44-1b(7); that they were likely to respond to probationary treatment, N.J.S.A. 2C:44-1b(10); and that they had displayed a willingness to cooperate with law-enforcement authorities, N.J.S.A. 2C:44-1b(12). Noting that the aggravating factors outweighed the mitigating factors, the court sentenced defendants to five years probation with concurrent 364-day county-jail terms as a condition of the probationary sentence. The court also imposed fines totalling $45,000, ordered each defendant to perform 400 hours of community service, and required each to pay $125 in Violent Crimes Compensation Board penalties.

Upon pronouncement of sentence, the trial court stated that the sentences would not become final for ten days to permit the State to file an appeal. Ms. Sanders' attorney then inquired whether his client would be released from prison during those ten days. ⁴ The court responded:

No. I would say the status quo stays for ten days. * * * And if [the State is] going to appeal, they better do it quickly, before next week, and * * * when they do, you may make application for bail at that time.

The State filed its notice of appeal eight days later, on August 8, 1985. A motion for bail pending appeal was heard on August 13, and an order setting bail at $5,000 was filed on August 20; the order provided that defendants would not be permitted to post 10% cash bail. ⁵ The Appellate Division modified Lois Sanders' bail on August 22, 1985, releasing her on her own recognizance. On August 21, Donald Sanders was returned to California for an appearance in connection with a pending prosecution, and was ultimately released on a recognizance bond.

The Appellate Division dismissed the State's appeal. ⁶ 212 N.J.Super. at 601, 515 A.2d 1256. The court observed that N.J.S.A. 2C:44-1f(2) does not specify when bail must be set after imposition of sentence. Id. at 606, 515 A.2d 1256. Noting that Rule 2:9-3(d) mandates the granting of bail pending an appeal by the State, the panel interpreted the statute and the Rule to require that bail be established immediately:

Unless the stay is granted and bail established immediately the purpose of a stay loses its meaning--which is to preclude execution of the sentence. [Id.]

The Appellate Division concluded that defendants' incarceration between August 1, 1985, and August 13, 1985, resulted in the partial execution of their sentences, and that any attempt to increase these sentences on appeal would violate defendants' double jeopardy rights. Id. at 607, 515 A.2d 1256.

II

Analysis of the issue presented in this case requires an understanding of the procedures applicable to State appeals under N.J.S.A. 2C:44-1f(2). The statute provides:

In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted. If the court does impose sentence pursuant to this paragraph, or if the court imposes a non-custodial or probationary sentence upon conviction for a crime of the first or second degree, such sentence shall not become final for 10 days in order to permit the appeal of such sentence by the prosecution.

As the statute makes clear, when a sentencing court imposes a probationary sentence on a first- or second-degree offender, or where it "downgrades" a sentence pursuant to N.J.S.A. 2C:44-1f(2), that sentence does not become final for ten days in order to permit the State to contest the sentence imposed. N.J.S.A. 2C:44-1f(2); see State v. Williams, 203 N.J.Super. 513, 517, 497 A.2d 550 (App.Div.1985). Strict compliance with the terms of the statute is required; failure to perfect an appeal within the ten-day period will result in dismissal of the State's appeal. See State v. Watson, 183 N.J.Super. 481, 484, 444 A.2d 603 (App.Div.1982).

Once the State has filed a notice of appeal, see R. 2:5-1, a defendant's sentence is subject to the continuing stay of Rule 2:9-3(d). The Rule provides:

(d) Stay Following Appeal by the State. Notwithstanding paragraphs (b) and (c) of this rule, execution of sentence shall be stayed pending appeal by the State pursuant to N.J.S.A. 2C:44-1f(2). Whether the sentence is custodial or non-custodial, bail pursuant to Rule 2:9-4 shall be established as appropriate under the circumstances. A defendant may elect to execute a sentence stayed by the State's appeal but such election shall constitute a waiver of his right to challenge any sentence increase on grounds that execution has commenced. ⁷

Bail may be granted during the pendency of an appeal "only if it appears that the case involves a substantial question * * * and that the safety of any person or of the community will not be seriously threatened if the defendant remains at large." R. 2:9-4. ⁸

We view Rule 2:9-3(d) as inapplicable to the ten-day period accorded the State to perfect its appeal. This conclusion flows from the title of the rule--"Stay Following Appeal by the State" (emphasis provided)--as well as from its language. Accordingly, it would be improper to admit a defendant to bail until the State has commenced its appeal under N.J.S.A. 2C:44-1f(2).

Our interpretation of the relationship between N.J.S.A. 2C:44-1f(2) and Rule 2:9-3(d) frames the fundamental question before us: whether a defendant's incarceration for as long as ten days while the State perfects its appeal bars a subsequent sentence increase on double jeopardy grounds. ⁹ Several general principles inform our analysis. Foremost among these is that the fifth amendment's double jeopardy clause, U.S. Const. amend. V, cl. 2, is intended to "protect[ ] against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 665 (1969); see United States v. DiFrancesco, 449 U.S. 117, 129, 101 S.Ct. 426, 433, 66 L.Ed.2d 328, 340 (1980); Ex parte Lange, 18 Wall. 163, 173, 21 L.Ed. 872, 878 (1873). ¹⁰ This protection against multiple punishments may be implicated when a state seeks an increase in a defendant's sentence on appeal. See United States v. DiFrancesco, supra, 449 U.S. at 121 & n. 4, 101 S.Ct. at 429 & n. 4, 66 L.Ed.2d at 335 & n. 4; State v. Roth, supra, 95 N.J. at 343, 471 A.2d 370. And while the double jeopardy clause is not an absolute bar to a state's power to appeal a lenient sentence, United States v. DiFrancesco, supra, ...