Conford, Kilkenny and Leonard. The opinion of the court was delivered by Kilkenny, J.A.D. Conford, S.j.a.d. (dissenting).
[104 NJSuper Page 188] Defendant voluntarily pleaded guilty on October 27, 1965 to an indictment charging him with having committed the crime of larceny from the person (N.J.S. 2 A:119-1) on August 22, 1965. He was sentenced on November 18, 1965 to State Prison for a term of not less
than six years, nor more than seven years. In addition, he was ordered to pay a fine of $2,000 and to stand committed until the fine was paid.
At the time of sentence, the State moved to dismiss three other indictments -- for robbery, rape and sodomy -- which resulted from the same occurrence. The motion was then denied. Subsequently, an order was entered on February 2, 1967 dismissing the other three outstanding indictments.
Defendant took no direct appeal from the judgment of conviction. However, sometime later he applied for post-conviction relief, contending that the $2,000 fine violated the due process and equal protection clauses of the Fourteenth Amendment. The matter was heard before the sentencing judge on December 21, 1967 and decided adversely to defendant. An order denying defendant's application for post-conviction relief was entered on January 16, 1968.
Defendant prosecutes this appeal from that order, as an indigent, with the aid of the Public Defender.
The sole point raised on appeal is that it is a denial of the constitutional guarantees of equal protection and due process of the law, as well as against excessive fines, to sentence an indigent to the maximum term of confinement and a fine, which may readily be paid by a nonindigent but results in further confinement for the indigent because of his inability to pay.
Larceny from the person, N.J.S. 2 A:119-1, is a high misdemeanor. The punishment for this crime is regulated by N.J.S. 2 A:85-6. It is limited to "a fine of not more than $2,000, or by imprisonment for not more than 7 years, or both." Quite obviously, the sentencing judge in this case imposed the maximum fine and the maximum prison sentence. He had a right to do so, having stayed within the statutory limits.
An appellate court may, nevertheless, revise the sentence if it is manifestly excessive, or unduly punitive in the light of the total circumstances. The power to revise a sentence must be exercised with extreme care. We ought
not interfere with the sentence imposed "in the absence of a clear showing of abuse of discretion." State v. Tyson, 43 N.J. 411, 417 (1964). See, too, State v. Brown, 46 N.J. 96, 108 (1965); State v. Ford, 92 N.J. Super. 356, 361 (App. Div. 1966); State v. Johnson, 67 N.J. Super. 414, 424-425 (App. Div. 1961).
We pause at this point to note another important fact, particularly pertinent to the issue presented. The State Parole Board, on March 22, 1968, acted favorably upon defendant's application for parole. It has granted him parole effective March 4, 1969. However, it notes that the $2,000 fine has not been paid and has made as a special condition of his parole:
"After paying $500.00 of your fine in the amount of $2,000.00 or working $500.00 off in the institution at the rate of $5.00 [a day], you will be released to make weekly payments in the amount of $10.00 to the Passaic County Probation Officer until the balance of the fine is paid in full. Such payments are to begin three weeks after date of parole."
In effect, defendant will be confined an additional 100 days after March 4, 1969, the effective parole date, unless on or before then he pays $500.
N.J.S. 2 A:166-16 provides that a person confined to prison by reason of default in the payment of a fine, who was ordered to stand committed until the fine is paid, shall be given credit against the amount of the fine at the rate of $5 for each day of confinement, after completing his prison sentence. If he is not being held by reason of any other sentence, he shall be discharged when a sufficient number of days of further confinement, at $5 a day, equals the amount due on his unpaid fine.
The Parole Board has the authority under N.J.S.A. 30:4-123.15 to release an inmate on parole, who has failed to pay the fine imposed, "upon condition that such fine and costs be paid, through the probation office of the county from which the inmate was committed, in weekly amounts,
to be fixed by the board." That authority was exercised in the present case, except it was subject to the condition that defendant must pay or work off at the $5 a day rate $500 of the $2,000 fine. Obviously, the board, in the sound exercise of its discretion, could have released defendant from prison to pay off the entire fine through the probation office, in weekly amounts fixed by it. That relief may still be sought and granted. However, we shall presume for further discussion that the terms fixed by the Parole Board will remain, and that defendant faces the possibility, if someone does not come to his financial aid by March 4, 1969 with the $500 to pay on account of the fine, to remain confined for another 100 days beyond the effective parole date.
Does such a further prison confinement to work off a fine at $5 a day deprive an indigent inmate of equal protection or due process of law, or constitute the imposition of an excessive penalty? The Public Defender's argument is that the poor prisoner must stay in jail for an added period of time, as opposed to the financially able inmate who can buy his release by paying the fine.
Defendant relied upon People v. Collins, 47 Misc. 2 d 210, 261 N.Y.S. 2 d 970 (Cty. Ct. 1965). Defendant therein was convicted of assault in the third degree and sentenced to the county jail for a term of 11 months and 29 days. The maximum prison sentence for this misdemeanor in New York was one year. He was also fined $250, in default of which he was to be confined at the rate of $1 a day for each dollar of fine unpaid. He challenged the validity of his potential confinement for the additional 250 days, maintaining that it was an unjust discrimination against a man without funds. The Orange County Court agreed and struck from the sentence the unpaid fine. It reasoned that the indigent prisoner, unlike one financially able, did not have the power to control or limit the time of his confinement.
A year later, the New York Court of Appeals was faced with this same general problem in People v. Saffore, 18 N.Y. 2 d 101, 271 N.Y.S. 2 d 972, 218 N.E. 2 d 686 (Ct. App.
1966). There, defendant pleaded guilty to a misdemeanor. As noted above, the New York statute fixed a one-year limit as the maximum term of imprisonment for a misdemeanor violation. The trial court, knowing that defendant was an indigent, sentenced him to one year's imprisonment and fined him $500, with the proviso that, if the fine were not paid, defendant would be required to serve one day's imprisonment for each dollar of the fine unpaid. The Court of Appeals held that, when the sentencing judge is cognizant of an individual's inability to pay a fine, subsequent imprisonment in lieu of the fine, which results in imprisonment for more than the permissible maximum prison sentence, violates the defendant's right to equal protection and due process of the law and is proscribed by the Eighth Amendment to the United States Constitution.
The rationale of the Saffore decision is that to order a defendant to stay in prison until he pays a fine, when the court knows that he cannot pay it, is not the use of a lawful means for enforcing payment but is an illegal method of requiring imprisonment beyond the maximum term of imprisonment allowed by the statute. It recognized that imprisonment can validly be used as a method of collection for "refusal" to pay a fine, but "it is illegal so to imprison a defendant who is financially unable to pay." 271 N.Y.S. 2 d, at p. 974, 218 N.E. 2 d, at p. 687; emphasis added)
To the same effect, and for the same reason, see People v. Mackey, 18 N.Y. 2 d 755, 274 N.Y.S. 2 d 682, 221 N.E. 2 d 462 (Ct. App. 1966), and People v. Tennyson, 19 N.Y. 2 d 573, 281 N.Y.S. 2 d 76, 227 N.E. 2 d 876 (Ct. App. 1967), holding the portion of the sentence, which required defendant to serve out the unpaid fine at $1 per day, illegal and violative of his constitutional rights.
For the contrary view, see Henderson v. United States, 189 A. 2 d 132 (D.C. Ct. App. 1963), and McKinney v. Hamilton, 282 N.Y. 339, 26 N.E. 2 d 949, 951, 127 A.L.R. 1283 (Ct. App. 1940).
It is important to note, however, that the court said in ...