On petition for post-conviction relief.
[87 NJSuper Page 573] On June 19, 1957 petitioner Rayfield Miles was charged in count I of indictment 1996-56 with the crime of sodomy, in violation of N.J.S. 2A:143-1, and on count II with assault with intent to commit sodomy, in violation of N.J.S. 2A:90-2. On July 1, 1957 he entered a plea of non vult to count I and of not guilty to count II.
On August 15, 1957 the New Jersey State Diagnostic Center, after examination, study and evaluation, found that petitioner came within the purview of the Sex Offender Act and recommended to the court that he be committed to the New Jersey State Hospital. Subsequently, on September 11, 1957, this court, pursuant to N.J.S. 2A:164-3 et seq., committed the petitioner to the New Jersey State Hospital at Trenton.
On October 25, 1957 the second count of the indictment was dismissed on motion of the prosecutor.
Petitioner was thereafter received at the New Jersey State Hospital in Trenton and remained there until October 19, 1960, when he was transferred to the New Jersey State Prison to complete a maximum term as prescribed by law. He is presently confined at that institution.
On December 29, 1964 petitioner filed a petition for post-conviction relief under R.R. 3:10A. Subsequently, an amended petition for post-conviction relief was filed by petitioner through his court-assigned attorney. In these petitions for relief, petitioner asserts the following grounds:
1. The original sentence was illegal because he did not come within the provisions of the Sex Offender Act.
2. His incarceration as a sex offender in the New Jersey State Prison is a violation of his constitutional rights of equal protection of the laws and due process.
3. His transfer from the State Hospital to State Prison was unlawful.
Petitioner's first contention raises several unique questions. He asserts that his original sentence as a sex offender in 1957 was illegal because he did not come within the purview of the Sex Offender Act. Petitioner relies on State v. Wingler, 25 N.J. 161 (1957), where our Supreme Court held that the term "adult aggressor," as used in the section of the Sex Offender Act dealing with the specialized treatment of a sex offender if it appears that the victim was under the age of 15
and the offender is an adult aggressor, refers to a person of at least 21 years of age.
Petitioner was born on April 5, 1938. At the time he committed the act of sodomy in 1957 he was 19 years old. State v. Wingler, supra, was decided on October 21, 1957. Petitioner asserts that (a) Wingler must be applied retroactively in view of the interpretation of "adult aggressor"; (b) none of the other sections of the Sex Offender Act is applicable to him, and (c) he must be resentenced to a minimum and maximum term because his sentence was illegal.
In Wingler the court reviewed the history of state statutes regulating sex offenders. In June 1950 N.J.S. 2A:164-3 et seq. was passed, which provided for the treatment of persons convicted of designated sex offenses where it is found that their conduct was characterized by "a. A pattern of repetitive, compulsive behavior; and b. Either violence; or c. An age disparity from which it shall appear that the victim was under the age of 15 years and the offender is an adult aggressor; * * *." N.J.S. 2A:164-5.
Following the Wingler decision, N.J.S. 2A:164-5 was amended, effective on January 12, 1959 to provide:
"If it shall appear from said report that it has been determined through clinical findings that the offender's conduct was characterized by a pattern of repetitive, compulsive behavior; and, except in convictions for open lewdness or indecent exposure, if either violence was utilized in the commission of the offense; or the victim was under the age of 15 years; it shall be the duty of the court, upon recommendation of the Diagnostic Center, to submit the offender to a program of specialized treatment for his mental and physical aberrations."
It was the Wingler decision that prompted the Legislature to pass the 1959 amendment. Attached to the proposed bill was this statement:
"The Supreme Court of New Jersey in a recent decision in State vs. Wingler, 25 N.J. 161, had occasion to examine N.J.S. 2A:164-5, the subject of this amendment, and reached the conclusion that the term 'adult aggressor' means an individual who has attained the age of 21 years. Since juvenile offenders under the age of 16 must be handled in juvenile court for all offenses and are deemed incapable of
committing crime the Sex Offender Law does not apply to them. The decision thus finds that the Sex Offender Law as presently written does not apply to the category of offenders (other than juveniles) between the age of 16 and 21 unless 'violence' attends the crime.
Experience indicates that there are a considerable number of offenders beyond the age of 16 and who have not yet reached 21 who commit crimes without 'violence' that demonstrate mental abnormality requiring special treatment under the Sex Offender Law. This amendment is designed to include this age group of 16 to 21 within the statute, because no logical reason exists for their exclusion. If enacted this bill would make the Sex Offender Law applicable to all age groups in New Jersey."
The first question is whether the Wingler interpretation of "adult aggressor" retroactively affects petitioner's commitment, since Wingler was decided approximately one month after the petitioner was committed to the New Jersey State Hospital as a sex offender.
The Wingler decision, in interpreting "adult aggressor," disclosed the intention of the Legislature at the time of the passage of the Sex Offender Act in 1950, several years before the petitioner was sentenced. Thus, Wingler must be applied retroactively to all nonadult offenders sentenced under the 1950 act under N.J.S. 2A:164-5(a) and (c) (where there was a pattern of repetitive, compulsive behavior, and age disparity).
The State contends that if the petitioner is to be resentenced, the 1959 amendment would apply to him and thereby automatically correct an illegal sentence. In other words, the State argues that the 1959 amendment should be applied retroactively because the Legislature by the amendment indicated that offenders over the age of 16 and under the age of 21 should be treated as adults under the Sex Offender Act. The State also argues that for purposes of sentencing, the Sex Offender Act looks at an offender's age at the time he is sentenced. Since the petitioner would be over the age of 21 when he is resentenced, he would be an "adult aggressor" under the provisions of the Sex Offender Act.
The court finds no merit in the State's contention. To apply the 1959 amendment retroactively would contravene
the Legislature's intent. Grave constitutional questions would arise if the court concluded that the Legislature's intent in 1959 was to correct retroactively the sentences of persons in petitioner's status. The court finds that petitioner was not an "adult aggressor" ...