Coleman, Marzulli and Yanoff. Coleman, J.s.c. (dissenting).
On December 18, 1979 a motion for stay of further proceedings in the above was granted. In September 1980 the Resentencing Panel called for argument on whether the stay should be vacated. This opinion is the result of that argument.
In addition to the problems posed by State v. Maguire , 176 N.J. Super. 164 (Resentencing Panel 1979), now pending in the New Jersey Supreme Court, the issue in this case is disparity. In skeleton outline: Hubbard, Rainey, Anderson and Arrington participated in a homicide. The killing took place during the course of a robbery. The precise roles played by each of the participants is not clear, but it seems conceded that Hubbard did not pull the trigger. Anderson and Arrington pleaded non vult to a murder charge, and each received a term of eight to ten years. Rainey went to trial and was convicted of second-degree murder and sentenced to 20 to 25 years. Rainey, apparently, was the "trigger man." Hubbard was tried separately, found guilty of first-degree murder and automatically sentenced to life imprisonment. Hubbard had sold Rainey the murder weapon, but, it seems, not for the purpose of committing the murder.
We need not repeat the reasons set forth in State v. Maguire, supra , as to why Hubbard is entitled to be considered for resentencing under N.J.S.A. 2C:1-1 d(2). In this case there are additional reasons. The obvious purpose of N.J.S.A. 2C:1-1 d(2) is to diminish disparity. One can ascribe no statutory intent to it other than that persons convicted under the Title 2A scheme should not be required to serve a greater sentence than persons of equal culpability convicted under the Code. The two Supreme Court orders, dated October 18, 1979 and November 29,
1979 (104 N.J.L.J. 369, 489 (1979), under which the Resentencing Panel was created, have diminution of disparity as their objective, not only between persons convicted under Title 2A and under Title 2C, but in the administration of N.J.S.A. 2C:1-1 d(2). A major reason for the orders is prevention of disparity in resentencing which may arise from judgments of resentence imposed by judges throughout the State, by creating a single tribunal whose rulings are more likely to be internally consistent.
While the Supreme Court has said that the mere fact that one defendant receives a different sentence than that of a codefendant does not entitle him to relief (State v. Hicks , 54 N.J. 390, 391 (1969)), in actuality it views disparity in sentencing with disfavor. In Hicks itself sentence was reduced to that of his coperpetrator, Gardiner. There is an obvious sense of unfairness in having disparate punishment for equally culpable perpetrators. See State v. Whitehead , 159 N.J. Super. 433 (Law Div.1978), aff'd 80 N.J. 343 (1979). In this case, because Hubbard was tried separately and because of the nondiscretionary application of N.J.S.A. 2A:113-4, he received a life sentence. Whether he was equally or more culpable than the others who received more lenient sentences, or whether he deserved the sentence he received, is not known; this must await the good cause hearing. Had he pleaded non vult , as did Anderson and Arrington, he might well be walking the streets now, as they are. There is an inherent constitutional problem in exposing a person who pleads not guilty and goes to trial to a greater term than that of one who pleads guilty. This was explored in State v. Forcella , 52 N.J. 263 (1968), rev'd sub nom. State v. Funicello , 403 U.S. 948, 91 S. Ct. 2278, 29 L. Ed. 2d 859 (1971), and United States v. Jackson , 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968). Cf. Corbitt v. New Jersey , 439 U.S. 212, 99 S. Ct. 492, 58 L. Ed. 2d 466 (1978).
We need not at this time determine that the principles applied in Funicello and Jackson, supra , are relevant in a case
such as this, where a defendant, ostensibly similarly situated to other defendants, probably received more stringent treatment because he exercised his constitutional right to put the State to its proof. It is sufficient to conclude that they are pertinent enough to constitute an additional reason why Hubbard should be afforded a resentencing hearing.
In consequence, the stay ordered by this court barring further proceeding in this cause is revoked and the case will be scheduled for hearing as to "good cause."
COLEMAN, J.S.C. (dissenting).
The question addressed by this panel in this case is whether the maximum sentence received by defendant convicted of first degree murder under N.J.S.A. 2A:113-1, a mandatory term of life imprisonment, exceeds the maximum sentence permitted for such an offense under N.J.S.A. 2C:11-3. That is, has defendant met the threshold requirement of N.J.S.A. 2C:1-1 d(2) in order to qualify for a review of his sentence before this panel.
Defendant's motion to be resentenced pursuant to N.J.S.A. 2C:1-1 d(2) was bifurcated. First we must decide the threshold question. If that question is favorably decided for defendant, then the question of good cause to change the sentence will be decided at a later time.
The motion presently before the panel is directed to the threshold question. Such a motion should focus exclusively upon the offense itself and the maximum sentence that can be imposed for such an offense. If the threshold question is resolved favorably for defendant, then at a "good cause" hearing the focus will shift to the offender and the offense. Thus, a discussion of disparity in the sentences received by each of the three codefendants involved with defendant Hubbard has no place in this aspect of the motion seeking to determine the threshold question. More will be said later on the alleged disparity. At the hearings on the threshold, both the defense attorney and the deputy attorney general acknowledged that
they were not prepared to argue "good cause." Thus, no meaningful discussion occurred on the "good cause."
The perimeter of our authority for resentencing is prescribed in N.J.S.A. 2C:1-1 d(2). Unless a defendant can prove to the satisfaction of the panel that he or she meets the threshold requirement and that there is good cause, the sentence cannot be changed. Accordingly, I dissent because defendant has failed to meet the jurisdictional threshold requirement. The burden of proving the jurisdictional requirements rests with defendant to satisfy the panel (N.J.S.A. 2C:1-13 d) that he has been sentenced to a term of imprisonment that exceeds the maximum sentence for murder under N.J.S.A. 2C:11-3.
Principally, the legislative intent of the framers of the new Code of Criminal Justice must be ascertained and followed regarding statutory interpretation. This legislative intent will answer the questions of whether an extended term for murder under N.J.S.A. 2C:43-7 a is to be considered as part of the maximum sentence permitted within the meaning of N.J.S.A. 2C:1-1 d(2), and whether the life term sentencing option provided by Title 2C is less than the mandatory life term previously provided by Title 2A.
The recognition of the unique nature of murder as exemplified by the Legislature's treatment of the crime both in the new Code and elsewhere compels me ineluctably to the conclusion that the Legislature did not intend that the maximum sentence under Title 2C be considered a reduction from that of Title 2A.
A court must follow certain well-established principles in ascertaining the legislative intent where that intent is not specifically stated. A court cannot rewrite or ignore clear and unambiguous language in order to effectuate a conjectured but unexpressed intent. Hogg v. Employees Retirem. Sys., Essex Cty. , 56 N.J. Super. 130, 134 (App.Div.1959). Statutes should be interpreted according to the ...