On appeal from the Superior Court, Law Division, Resentencing Panel, whose decision is reported at 175 N.J. Super. 93 (1980).
Matthews, Morton I. Greenberg and Ashbey. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.
Defendant appeals from an order of the Superior Court, Law Division, acting through the Resentencing Panel established by the Supreme Court to implement the provisions of N.J.S.A. 2C:1-1 d(2). See 104 N.J.L.J. 369 (1979); 104 N.J.L.J. 489 (1979). The order was entered following a written decision of the panel. See 175 N.J. Super. 93 (1980).
The background of the case is set forth in the decision of the Resentencing Panel. Defendant was convicted of conspiracy under an indictment charging him with conspiracy "to embezzle, steal, carry away and receive the property of Exxon Company, U.S.A. . . . ." N.J.S.A. 2A:98-1. He was also convicted of 101
counts of receiving stolen property of a value of over $500. N.J.S.A. 2A:139-1. On January 21, 1977 he was sentenced to a term of not less than one nor more than three years for conspiracy and to 101 terms of not less than one nor more than three years for receiving stolen property. The sentence on the conspiracy count and two of the sentences on the receiving counts were made consecutive. The sentences on the other receiving counts were made concurrent with each other and the other three sentences. Thus the effective length of defendant's sentence was not less than three nor more than nine years.*fn1
Defendant appealed but his convictions were affirmed by us on May 22, 1979.*fn2 On September 1, 1979 the New Jersey Code of Criminal Justice (hereinafter the Code), N.J.S.A. 2C:1-1 et seq. , became effective. On October 2, 1979 the Supreme Court denied defendant's petition for certification. 81 N.J. 348 (1979). Defendant then moved in the Law Division before the sentencing judge for a reconsideration of sentence. R. 3:21-10(a). His motion was denied by that judge by order entered November 8, 1979. We are aware of no appeal having been taken from that denial.
Defendant next filed a motion dated December 6, 1979 with the Resentencing Panel, asking for resentencing under the Code. His moving papers recited that they were filed pursuant to R. 3:21-10(b)(4). The Resentencing Panel scheduled a hearing on his application for January 22, 1980. Defendant's counsel appeared on that date but defendant himself was not present.*fn3 The panel determined that its jurisdiction was limited to applications
under N.J.S.A. 2C:1-1 d(2) and that defendant was not "facially eligible for resentencing." 175 N.J. Super. at 97. The panel stated that any application for resentencing under N.J.S.A. 2C:1-1 c(2) should be addressed to the judge who imposed the original sentence. 175 N.J. Super. at 97.
N.J.S.A. 2C:1-1 d(2) provides for resentencing when a defendant is under sentence of imprisonment on the effective date of the Code for a pre-Code offense. If the offense has been eliminated by the Code or if the maximum sentence imposed exceeds the maximum established by the Code for the offense, a defendant whose sentence has not been suspended or who has not been paroled or discharged may move to have his sentence reviewed and for good cause shown may be resentenced under the Code. See State v. Maguire , 84 N.J. 508, 511 (1980).
The panel reasoned that defendant was not entitled to be resentenced under N.J.S.A. 2C:1-1 d(2) because the conspiracy of which he had been convicted had not been shown to have been eliminated by the Code. It acknowledged that even though under the Code a person may not be convicted of both a conspiracy to commit a substantive crime and the crime itself, N.J.S.A. 2C:1-8 a(2), defendant had not shown that such statutory merger was applicable in his case. The panel pointed out that the conspiracy alleged in the indictment was broader than the substantive crime of which defendant had been convicted. Thus it decided that the conspiracy charge had not been eliminated under the Code. 175 N.J. Super. at 99. It also held that the maximum sentences under the Code for the substantive crimes of which defendant had been convicted exceeded the sentences imposed on those counts. Ibid. Accordingly, defendant was not facially eligible for resentencing. See State v. McDermott , 175 N.J. Super. 334, 339 (App.Div.1980). Finally, the ...