State v. Schubert

• Decision Date: 22 October 2012
• Citation: 212 N.J. 295,53 A.3d 1210
• Parties: STATE of New Jersey, Plaintiff–Appellant, v. Joseph SCHUBERT, Jr., Defendant–Respondent.
• Court: New Jersey Supreme Court

212 N.J. 295

53 A.3d 1210

STATE of New Jersey, Plaintiff–Appellant,

v.Joseph SCHUBERT, Jr., Defendant–Respondent.

Supreme Court of New Jersey.

Argued May 7, 2012.

Decided Oct. 22, 2012.

Brian J. Uzdavinis, Deputy Attorney General, argued the cause for appellant (Jeffrey S. Chiesa, Attorney General of New Jersey, attorney).

Philip A. De Vencentes argued the cause for respondent (Galantucci & Patuto, attorneys).

Judge WEFING (temporarily assigned) delivered the opinion of the court.

This appeal presents the question of whether a trial court may amend a judgment of conviction after a defendant has finished serving the sentence imposed upon him to include a provision erroneously omitted at the time of sentencing that increases the punitive consequences of that sentence. We conclude that it may not and thus affirm the judgment of the Appellate Division. The question arises in the following factual context.

I.

In 1996, a grand jury returned a four-count indictment against defendant Joseph Schubert, Jr., charging him with criminal restraint, a crime of the third degree, N.J.S.A. 2C:13–2(a); official misconduct, a crime of the second degree, N.J.S.A. 2C:30–2(a); sexual assault, a crime of the second degree, N.J.S.A. 2C:14–2(c)(1); and trespass, a crime of the third degree, N.J.S.A. 2C:18–3(a). The indictment was based upon the allegation that defendant, who at the time was a New York City policeman and was evidently spending some time at the New Jersey shore, had engaged in sexual intercourse with C.M. without her consent.

In 2000, defendant agreed to enter a negotiated plea of guilty to the charge of sexual assault. In return, the State agreed to dismiss the remaining charges and to recommend both that defendant be sentenced as if he had pled to a crime of the third degree and that he receive a noncustodial period of probation. Defendant executed the plea form and two additional forms containing questions, one titled “For Sexual Offenses” and the other titled “Additional Questions for Certain Sexual Offenses.” When defendant entered his guilty plea, the State represented to the trial court that it had discussed the matter at length with the victim and that the proposed resolution was satisfactory to her.

Defendant acknowledged as part of the plea colloquy that he understood he would be examined at the Adult Diagnostic and Treatment Center located in Avenel, New Jersey. The trial court also asked defendant if he understood that he would have to “register with the chief law enforcement officer in the community [in] which you reside,” and defendant said he did. Defendant also acknowledged he understood that he would need to provide verification of his address every ninety days. Those exchanges were the extent of the colloquy between defendant and the trial court with respect to the potential consequences of pleading guilty to sexual assault.

Defendant appeared for sentencing on June 16, 2000. The trial court noted that the Avenel report did not indicate compulsive or repetitive behavior. The court found that the mitigating factors clearly outweighed the aggravating factors and that the terms of the plea bargain were appropriate. It placed defendant on probation for a period of three years, imposed the appropriate penalties, ordered restitution of certain medical expenses as well as payment of a monthly probationary fee, and directed defendant to maintain full-time employment. The trial court then made the following statement:

If you do all those things, you are not going to have a problem with this court. I don't anticipate any problem from you. I don't anticipate this probation is going to be difficult for [you] but you got to understand that if you mess up, that you face up to five years in jail. I don't expect this to happen, not going to happen.

Defendant assured the trial court it would not.

The trial court entered a judgment of conviction on June 23, 2000. The written judgment mirrored the terms orally imposed by the trial court. Defendant successfully completed his probationary sentence and was discharged from probation in June 2003.

On October 3, 2007, more than seven years after the trial court sentenced defendant and more than four years after defendant had successfully completed his probationary sentence and had been discharged, the Chairman of the New Jersey State Parole Board wrote to the trial court noting that the sentence the court had imposed upon defendant in June 2000 did not contain any reference to community supervision for life in accordance with the terms of N.J.S.A. 2C:43–6.4. He requested that the trial court review the matter and advise whether defendant's sentence should be amended to include a provision for community supervision for life. The trial court, in turn, contacted the attorney who had represented defendant in connection with his negotiated plea and sentence, informing him that it would file an amended judgment of conviction that would include a provision subjecting defendant to community supervision for life unless the attorney submitted an objection within the next ten days. The attorney advised the trial court that he had not represented defendant for a number of years and was not in a position either to object or to concur with the trial court's proposal. He requested that defendant be notified directly of the Parole Board's request.

Although such direct notification was never sent to defendant, the trial court entered an amended judgment of conviction on April 30, 2008. There were only two differences between this judgment and that entered nearly eight years earlier. On the original judgment, the box next to the line stating that “[t]he defendant is hereby sentenced to community supervision for life” was left blank while on the later judgment it was checked. In addition, the following sentence was added in bold type to the later judgment: “The judgment of conviction is amended to reflect that defendant is sentenced to community supervision for life.”

On June 19, 2008, Rod Nelson, a senior parole officer, wrote to defendant. His letter stated in pertinent part:

This letter is in reference to the sentence that you received in New Jersey Superior Court, Law Division—Criminal, in Monmouth County on June 16, 2000. In a recent audit it was found that your sentence was to include Community Supervision for Life. All sex offenses committed after 10/31/94 are to include this proponent [sic] in their sentence. I have included a copy of the Amended Judgment of Conviction ... which reflects the inclusion of Community Supervision for Life.

The letter directed defendant to report on a specified date to the parole office to process the necessary paperwork. It also informed defendant that his failure to do so would constitute a fourth-degree crime carrying a sentencing exposure of up to eighteen months in prison.

Thereafter, defendant, represented by the attorney who had represented him in conjunction with his plea negotiations and sentencing, filed a petition for post-conviction relief in which he requested that the trial court vacate the amended judgment. He contended that the trial court had lacked jurisdiction to amend that judgment because he had already completed the sentence that the trial court had imposed on him. He argued further that amending the judgment of conviction to include a provision for community supervision for life after he had fully completed his sentence constituted double jeopardy, denied him due process of law, and was fundamentally unfair. In opposition to defendant's petition, the State argued that the original sentence was illegal because it omitted the statutorily mandated provision of community supervision for life and that defendant could not have an expectation of finality in an illegal sentence.

The trial court denied defendant's petition. In its view, it had jurisdiction to amend the original judgment because the sentence as originally imposed was illegal. It noted that when defendant pled guilty, he had, in completing the form headed “Additional Questions for Certain Sexual Offenses,” answered “Yes” to the question asking whether he understood that a conviction for sexual assault carried with it as part of the sentence “a special sentence of community supervision for life.” The trial court considered that question to be adequate explanation to defendant of the consequences of community supervision for life. The trial court was not persuaded by defense counsel's argument that he had incorrectly advised defendant that community supervision for life merely involved registration requirements. The trial court concluded that defendant had not been denied due process and, further, that amending the judgment of conviction was not fundamentally unfair to defendant.

Defendant appealed the denial of his petition for post-conviction relief. The Appellate Division, in an unreported opinion, reversed the trial court. It concluded that the trial court's action in amending the judgment of conviction violated defendant's double-jeopardy rights. It remanded the matter to the trial court for entry of the original judgment of conviction that omitted any reference to community supervision for life. We granted the State's petition for certification. 208 N.J. 368, 29 A.3d 741 (2011).

II.

The State contends that the appellate panel erred. It argues that the sentence imposed on defendant in 2000 was illegal and that an illegal sentence may be corrected at any time. It points to the paperwork completed at the time defendant pled guilty and asserts that defendant was adequately advised of the consequences of his guilty plea. It notes that the trial court stated when it accepted defendant's guilty plea that it was satisfied that defendant understood the terms of the plea. The State contends that because the sentence imposed on defendant in 2000 was illegal, defendant was not entitled to any expectation of finality with respect to that sentence.

Defendant counters those...