On appeal from Superior Court, Law Division, Camden County.
Lynch and Horn. The opinion of the court was delivered by Horn, J.A.D.
Defendant appeals from an order denying his second petition for post-conviction relief. The relief sought by defendant through said petition and which was denied by the trial judge was a modification of a sentence imposed on him for his conviction of armed robbery so as to make that sentence concurrent with rather than consecutive to sentences imposed for certain sex-related crimes.
A brief history is required. We take it verbatim from an opinion of this court rendered on an appeal from the trial court's denial of defendant's first petition for post-conviction relief, contained in an unreported opinion, State v. Warfield Docket A-2512-74 (1976), as follows:
On November 19, 1973, at age 18, defendant pleaded guilty to the first counts of Camden County Indictments numbered 117-73 and 118-73, charging, respectively, assault with intent to commit carnal abuse upon a female 14 years of age, contrary to N.J.S.A. 2A:90-2 and carnal abuse of another 14 year old female, contrary to N.J.S.A. 2A:138-1. The negotiated plea agreement called for the dismissal of the remaining counts of each indictment and for the imposition of concurrent sentences on both indictments. At the time of sentencing, on April 26, 1974, defendant pleaded guilty to three accusations charging additional crimes which occurred before defendant was examined at the Diagnostic Center pursuant to the sex offender act, N.J.S.A. 2A:164-3 et seq. The accusations charged: assault with intent to rape, committed in September 1973 (Acc. No. A-1159-73); forcible rape and armed robbery of the same victim, committed in January 1974 (Acc. No. A-1160-73); and assault with intent to rape two females and threatening to kill said females on February 12, 1974 (Acc. No. A-1161-73).
The Diagnostic Center reported that defendant was a compulsive and repetitive sex offender and recommended a program of specialized
treatment. N.J.S.A. 2A:164-5; see State v. Clark , 65 N.J. 426, 434, 323 A.2d 470 (1974). This finding was accepted by defendant who stated at sentencing that he wanted help.
The trial judge sentenced defendant on the offenses covered by the indictment to two consecutive indeterminate terms at the New Jersey State Diagnostic Unit, Rahway (State Prison). The State concedes that this sentence did not conform to the negotiated plea agreement, which called for concurrent sentences, and accedes to defendant's request for modification. We concur in this request.
On the convictions for all crimes charged in the three accusations, defendant was sentenced to consecutive indeterminate sentences at the New Jersey State Diagnostic Unit, Rahway, consecutive also to the sentences imposed for offenses charged in the indictments, except that concurrent indeterminate terms were imposed for the assault with intent to rape and the two threat to kill offenses charged in counts two, three and four of Accusation No. A-1161-73.
One of defendant's contentions in that appeal was that the indeterminate sentences to the Diagnostic Unit at Rahway for the nonsex offenses (the armed robbery and the threats to kill) were improper, since the indeterminate sentences must be made to the Youth Correctional Institution Complex. The court agreed and accordingly changed said sentences for the nonsex offenses to concurrent indeterminate terms to be served at the Youth Complex, consecutive to the term imposed for the sex offenses. As noted above, these "nonsex" offenses consisted of two threat-to-kill offenses and an armed robbery. Sentences for these crimes, though to be served concurrently with each other, were to be served consecutively to the sex-related crimes.
In the present appeal, in addition to the Public Defender's brief defendant has submitted a letter brief. The points raised in both of these briefs are: first, "the non-sex related offense sentences [ i.e. , armed robbery] should have been made concurrent [with] the sex offense sentences" (raised in both briefs); and, second, that the sentence for the armed robbery was counterproductive to the purpose and intent of the Sex Offenders Act, N.J.S.A. 2A:164-3 et seq. (in ...