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WASHINGTON v. REGAN

April 4, 1974

JOSEPH W. WASHINGTON, Petitioner,
v.
VINCENT J. REGAN, Superintendent of Leesburg State Prison, Respondent


Cohen, Chief Judge.


The opinion of the court was delivered by: COHEN

AMENDED OPINION and ORDER

 COHEN, Chief Judge:

 This Court has reconsidered its Opinion and Order of February 20, 1974, disposing of the instant petition on the ground that petitioner had failed to exhaust his state remedies within the meaning of 28 U.S.C. § 2254(c) in that he failed to file a Post Conviction Relief Application as provided for in New Jersey Court Rule 3:22-1 et seq. Both claims asserted by the petitioner have been raised and considered by the state courts on direct appeal. The Order is therefore vacated, and the merits of the petition are discussed below.

 The petitioner was tried and found guilty by a jury on June 17, 1968, of resisting arrest, and possession and control of narcotics. On December 2, 1968, the petitioner was sentenced to a term of two to four years on the narcotics conviction, and one to two years on the resisting arrest conviction, each sentence to be served consecutively. In a separate proceeding on October 14, 1969, the petitioner had been convicted of possession and control of a narcotic drug. The court then directed the prosecutor's office to charge the petitioner with being a multiple offender under the Narcotics Offenders Act, N.J.S.A. § 24:18-47(c) (2), and on January 8, 1970, following a jury trial, the petitioner was convicted of being a multiple offender. On January 23, 1970, the petitioner was sentenced as a multiple offender for a term of five to ten years, the sentence to run consecutively to his prior sentences.

 Subsequent to the petitioner's conviction and sentencing as a multiple offender, the case of State v. Johnson, 109 N.J. Super. 69, 262 A.2d 238 (App. Div. 1970) was decided. That case held that a defendant could not be sentenced as a second offender when his second offense occurred prior to his conviction for the first offense. Subsequently, on March 23, 1970, the sentencing court vacated the sentence it had imposed prior to State v. Johnson, supra, and imposed the same sentence of five to ten years, to run consecutively to petitioner's prior sentences of three to six years. Petitioner alleges that it was error for the court to impose the same sentence upon him as a first offender, that it had previously imposed upon him as a multiple offender.

 Petitioner further alleges that he was denied a fair trial, in that part of the indictment read to the jury indicated that the petitioner was under arrest for the charge of "possession and sale of narcotics." This part of the indictment was subsequently deleted by the court. Petitioner contends, however, that testimony regarding the sale of narcotics was elicited by the prosecution, and admitted by the court. The essence of petitioner's claim is that the admission of such evidence, plus the wording of the indictment, despite its subsequent amendment, infected the entire proceeding, and denied the petitioner due process of law.

 The petitioner's claim with respect to his sentence has merit. In the case of United States v. Tucker, 404 U.S. 443, 30 L. Ed. 2d 592, 92 S. Ct. 589 (1972) the United States Supreme Court held that resentencing was appropriate in a case where the trial court had before it evidence of two prior convictions obtained in violation of Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963). As the Court pointed out:

 
For if the trial judge in 1953 had been aware of the constitutional infirmity of two of the previous convictions, the factual circumstances of the respondent's background would have appeared in a dramatically different light at the sentencing proceeding. Instead of confronting a defendant who had been legally convicted of three previous felonies, the judge would have then been dealing with a man who, beginning at age 17, had been unconstitutionally imprisoned for more than ten years, including five and one half years on a chain gang. 404 U.S. at 448.

 Similarly, in the instant case, when the petitioner appeared before the court for resentencing, he was, in legal contemplation, a first offender. The court itself acknowledged the intervening change in the law which necessitated the vacation of the original sentence. (Resentencing Transcript at 10) The record also indicates that the court, at first, resentenced the petitioner to a term of five to ten years, to be served concurrently with his prior sentences. On its own motion, and without explanation, the court ordered the word "concurrent" struck, and the word "consecutive" to be inserted. (Id. at 19) No allegation is made that the sentence imposed was not within the sentencing range permitted by statute.

 In State v. Tyler, 88 N.J. Super. 396, 212 A.2d 573 (App. Div. 1965), cert. denied, 384 U.S. 992, 16 L. Ed. 2d 1008, 86 S. Ct. 1898 (1966) the court pointed out that the purpose of habitual offender legislation "is to impose a greater penalty for the criminal act for which the defendant is being tried, where he has persistently engaged in unlawful activities. 'The prior convictions are only a matter of aggravation of guilt in the repetition of criminal conduct warranting the imposition of a heavier penalty ordained by the Legislature in the case of a convicted recidivist for the substantive offense presently dealt with. ' (citations omitted)." 88 N.J. Super. at 404, 212 A.2d at 578. Given the announced policy which underlies habitual offender legislation, it appears that, unless there was an additional unarticulated basis for the sentence imposed in this case, the sentencing judge viewed the defendant as a multiple offender at resentencing. There may, in fact, have been a permissible basis for imposing the same sentence that was originally imposed; however, the sentencing judge gave no reason for doing so. See generally North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969); Palmer, A Model of Criminal Dispositions: An Alternative to Official Discretion in Sentencing, 62 GEORGETOWN L.J. 1, 21-25 (1973). The requirement of providing a reason for a particular disposition is also embodied in the ABA STANDARDS RELATING TO APPELLATE REVIEW OF SENTENCES, APPROVED DRAFT, 1968, STANDARD 2.3(3): "The Sentencing Judge should be required in every case to state his reasons for selecting the particular sentence imposed. Normally, this should be done in the presence of the defendant at the time of sentence."

 For a plea from a federal district court judge which also calls for an articulation of the rationale for the sentence imposed, see Frankel, Lawlessness In Sentencing, 41 U. CINN. L. REV. 1, 9-16 (1972).

 In other contexts, dispositional authorities have been required to give reasons for their decision. For example, Monks v. New Jersey State Parole Board, 58 N.J. 238, 277 A.2d 193 (1971) held that the Parole Board must give reasons for a denial of parole.

 Given the articulated state policy of treating multiple offenders more harshly with regard to sentencing than other offenders, it is reasonable to require, on the particular facts of this case, that the sentencing judge articulate a basis for the sentence imposed. This is not to say that the sentencing judge does not have broad discretion to choose between the many sentencing options available, nor should this opinion be read to indicate that the same sentence may not be imposed again upon resentencing. It is, however, incumbent upon the trial judge to state ...


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