This is an application for post-conviction relief brought by Michael DeSanto pursuant to R. 3:22-1. Briefs were submitted and oral argument held. The essential facts are as follows:
In the early morning hours of June 4, 1972 petitioner and one Dominick Caruso cruised the streets of Elizabeth in their automobile. Upon seeing any black person in the
street they would drive up, point a rifle out the window and fire. As a result of this wild shooting spree one man was killed, four were wounded and four escaped unharmed.
Caruso was tried before a jury and found guilty on December 6, 1972 of first degree murder as well as numerous counts of assault with intent to kill, assault with an offensive weapon, atrocious assault and battery and related illegal weapons offenses. He was sentenced to life imprisonment on the murder conviction and a consecutive aggregated term of 8 to 12 years on the other offenses.
Petitioner had been indicted for murder (Indictment 661-J-72) but pursuant to a plea agreement he pleaded non vult to that charge on March 13, 1973. As part of the plea agreement voluntarily entered the State would recommend to the sentencing judge a maximum sentence of 30 years on the murder indictment and a recommendation that any sentence imposed on Accusation 84-J-72 (to be discussed below) be made concurrent to the sentence imposed on that indictment. In return petitioner had agreed to testify against his codefendant, Caruso, if needed. In point of fact the State felt it unnecessary to call upon him to testify.
Both sides having complied with their respective promises, petitioner was sentenced pursuant to the plea agreement. On April 13, 1973 defendant was sentenced to 25-30 years in State Prison on the murder indictment. In addition, on Accusation 84-J-72 which charged petitioner in 22 counts with atrocious assault and battery, assault with intent to kill, assault with an offensive weapon as well as related illegal weapons offenses, a concurrent sentence of 25-30 years was imposed.*fn1
He is now serving his sentence in State Prison.
In this petition for post-conviction relief petitioner contends that the sentence imposed on Accusation 84-J-72 is
illegal because several of the counts merge, with a resulting decrease in the total sentence. It is his position that since the date of the original sentencing newer decisions on merger have asserted new pronouncements on heretofore old concepts regarding merged offenses at sentencing. Compare State v. Best , 70 N.J. 56 (1976), and State v. Jamison , 64 N.J. 363 (1974), with State v. Drayton , 114 N.J. Super. 490 (App. Div. 1971). In essence, petitioner's argument reduces itself to one of retroactivity: May the recent merger cases [ Best, Jamison, State v. Francis , 128 N.J. Super. 346 (App. Div. 1974), etc.,*fn2] which appeared to signify a change in the law of New Jersey with regard to the merger of offenses at sentencing be applied retroactively to a defendant who brings a petition for post-conviction relief? While this issue can be put to rest only by the Supreme Court, where the question is open there is no reason why this court cannot give the matter plenary consideration. Schwartz v. U.S. Rubber Corp. , 112 N.J. Super. 595 (Law Div. 1971), aff'd 118 N.J. Super. 128 (App. Div. 1972). Indeed, it must resolve this issue before the merits of the merger argument can be reached.
To better appreciate the argument which petitioner is putting forth a dissection of Accusation 84-J-72 would be beneficial. This accusation dealt with the eight men who were shot at but not killed in this incident. Of these eight men four were wounded by rifle fire. As to each of these four men petitioner was charged with assault with intent to kill, atrocious assault and battery and assault with an offensive weapon. As to each of the remaining four men, those who escaped unscathed, petitioner was charged with
assault with intent to kill and assault with an offensive weapon. In addition, there was also included single counts of illegal possession of a weapon and unlawful use of a dangerous weapon. A separate sentence was imposed on each of the 22 counts of the accusation. The exact breakdown of the sentences is set out in the Appendix. The aggregate sentence of 25-30 years on this accusation was to run concurrent to the 25-30 year sentence imposed on the murder indictment.*fn3 All this was pursuant to a plea agreement, a meeting of the minds, so to speak, as to the "time" petitioner would ultimately have to serve.
Petitioner's argument concerns the numerous counts in the accusation. It is his contention that many of the assault charges should merge at sentencing, significantly reducing the total number of counts on which he can be sentenced. In support of his position he relies on many of the new merger cases which were decided subsequent to his sentencing on these charges. Thus, the retroactive effect of these cases would appear to be a crucial concern.
I. Is Retroactivity Truly An Issue?
It is petitioner's contention that retroactivity need not concern us. While the State argues that these cases should not be made retroactive based upon the three-prong test which has generally been followed in New Jersey, see State v. Nash , 64 N.J. 464 (1974); State v. Johnson , 43 N.J. 572 (1965), aff'd 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966), petitioner argues retroactivity is not an issue at all. As he states in his brief: "Indeed, the Appellate Courts of this State in those decisions were not enunciating new and different law but merely clarifying the original
Legislative intent which existed at the time of passage of the charges at issue." The essence of defendant's position is that the recent merger cases did not announce "new" law, i.e. , this was not a case where the court abruptly changed direction by overruling a previous case which had been long relied upon by the bar. See Gideon v. Wainwright , 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). Rather, it is argued, the common law of merger has extended itself from case to case in a gradual process of evolution. Thus Best , etc., are not announcing "new" law but merely amplifying the old law and therefore retroactivity (which by definition involves applying "new" law to old cases) is not an issue.
However, petitioner's position is based on certain misconceptions concerning the retroactivity doctrine. "In order for a rule to be 'new' so as to give rise to a choice between retroactive and prospective application, it need not be new in the sense that it involves the overruling of prior cases." People v. Hernandez , 11 Cal. App. 3d 481, 89 Cal. Rptr. 766, 774 (D. Ct. App. 1970). See, e.g., United States v. Wade , 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2 d 1149 (1967); Gilbert v. California , 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967); Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
These cited cases overruled no prior case, yet the rules announced therein were held to have only prospective effect. See Stovall v. Denno , 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967); Johnson v. New Jersey , 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966). Also, the question of whether a rule announced in a given case is "new" is not foreclosed by the fact that the later ruling is a logical outgrowth of a prior holding and its necessary implications. As the Supreme Court recognized in Johnson v. New Jersey, supra , the holding in Miranda was a logical implication in the holding of Escobedo v. Illinois , 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2 d 977 (1964). Yet Miranda was accorded prospective application.
Thus, simply because Best, etc. , did not expressly overrule a prior case and even assuming arguendo that these recent cases were a logical outgrowth of prior merger cases, that in and of itself would not bar a solely prospective application of the newer cases.
Also, for petitioner to make the argument he does forces him to take an inconsistent position vis-a-vis his standing on a proceeding for post-conviction relief. Petitioner has never taken a firm position as to the precise basis of his standing on this post-conviction relief proceeding. See R. 3:22-4. Exception (b) of the rule requiring a showing of "fundamental injustice" would not apply here since there is a lack of the usual egregious circumstances such as might have existed in State v. Reynolds , 43 N.J. 597 (1965), or State v. Clark , 65 N.J. 426 (1974).*fn4 This court concludes that petitioner's present standing is based on R. 3:22-4(a), i.e. , that this merger issue was one which could not reasonably be raised in any prior proceeding. This conclusion is grounded on the fact that defendant seeks the benefit of these most recent merger cases -- cases which did not exist at the time of sentencing or during the time allotted to seek appellate review. For petitioner to now argue that these recent merger cases are not "new" cases but simply amplifications of earlier cases is, in effect, to argue that this was an issue which could have reasonably been raised in a prior proceeding. This being true, then standing on a proceeding for post-conviction relief would be barred expressly by R. 3:22-4. Petitioner may not play both sides against the middle. He cannot argue that these cases were anticipated and in the same breath argue that he can maintain this post-conviction relief because the merger issue could not reasonably have been raised before.
Another aspect of petitioner's argument that retroactivity is not an issue must be discussed. The underlying premise of his position is that the law is a finite continuum with end point representing "natural law," i.e. , those principles of human conduct which exist independent of enacted law and which might be discovered by the rational intelligence of man. Black's Law Dictionary (4 ed. 1951). This being so, "the judge rather than being the creator of the law was but its discoverer." Linkletter v. Walker , 381 U.S. 618, 623, 85 S. Ct. 1731, 1734, 14 L. Ed. 2d 601 (1965). Under this philosophy of the law no distinction is drawn between "new" law and "old" law as such since the duty of the court was not to "pronounce a new law, but to maintain and expound the old one," i.e. , "discover" the law. 1 Blackstone, Commentaries 69 (15 ed. 1809), 69, quoted in Linkletter v. Walker, supra at 622, 85 S. Ct. 1731. Thus, where the law was gradually being discovered by judges who took steps forward on that continuum, it only meant that the "old" law which was relied upon until that point by an apparently naive judiciary was never really the law in the first place. Since the "old" law was therefore considered to have never been the law there was no need to concern oneself with the issue of prospective application of "new" law, since that doctrine assumed that all previous decisions did represent the law up until the point that the new law was announced, and should, therefore, remain intact. The idea was illustrated concisely in Linkletter which held Mapp v. Ohio , 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), to have prospective effect:
In the case of the overruled decision, Wolf v. Colorado , 338 U.S. 25 [69 S. Ct. 1359, 93 L. Ed. 1782] (1949), here, it was thought to be only a failure at true discovery and was consequently never the law; while the overruling one, Mapp , was not 'new law but an application of what is, and theretofore had ...