On remand from the Supreme Court of New Jersey.
Coleman, Marzulli and Yanoff. The opinion of the court was delivered by Yanoff, J.s.c. (retired and temporarily assigned on recall). Judge Marzulli concurs in this opinion. Coleman, J.s.c. (dissenting).
[182 NJSuper Page 2] The only issue before us is a factual determination as to "good cause" under N.J.S.A. 2C:1-1 d(2). We understand our dissenting colleague and the Appellate Division take the view that we resentenced for disparity alone. Our review of the record indicates the contrary; we relied on a complex of facts, especially Johnson's record at the Adult Diagnostic Treatment Center (ADTC).
In 1962 Johnson was sentenced under a plea agreement on four charges: rape, and three separate charges of assault with intent to rape. He was determined to be a compulsive and repetitive sex offender, pursuant to the Sex Offender Act (N.J.S.A. 2A:164-3), and received an indeterminate sentence of 30 years for the rape and three indeterminate 12-year terms for the assaults with intent to rape, all consecutive. His aggregate sentence was thus 66 years, indeterminate.
He was paroled in 1974. While on parole he was charged with impairing the morals of a minor, in violation of N.J.S.A. 2A:96-3, and abduction, in violation of N.J.S.A. 2A:86-3. By agreement, he pled guilty to the morals charge and received an indeterminate three-year sentence, consecutive to the previous sentences, thereby increasing the indeterminate term to 69 years.
According to defendant, he made advances to a 12-year-old girl, believing her to be a prostitute, and when she rebuffed him, put his arms around her and began kissing her.
In 1979 Johnson applied for post-conviction relief as to the three 12-year terms. In consequence, the sentences on these were made concurrent to each other and the 30-year term, consecutive, so that there was a reduction to an indeterminate 33 years, of which three were on the morals charge. No appeal was taken. The result is one of the facts upon which we must base our findings. We are not free to determine whether the post-conviction relief decision was wrong, or to act as if the reduction of sentence had not occurred, or to say that because Johnson has committed four sex offenses he cannot possibly obtain relief under N.J.S.A. 2C:1-1 d(2).
Johnson was sentenced to an indeterminate term as a sex offender under N.J.S.A. 2A:164-3, for the purpose of treatment and cure. The premise of the statute is that he is suffering from an "aberration" which can be cured. He is to be released when he is "capable of making an acceptable social adjustment in the community" (N.J.S.A. 2A:164-8), apparently cured from
his aberration. He is at ADTC, not for punishment but for treatment. State v. Wingler , 25 N.J. 161, 182 (1957) (dissenting opinion). State v. Clark , 65 N.J. 426 (1974), iterates the same principle. It was there held that a penal term for a sex offense consecutive to an indeterminate term at ADTC was improper. Justice Hall said:
The prime difficulty with consecutive penal sentences for non-covered sex offenses is that they are absolute and must be served even though, as has proved to be the situation here, treatment is considered to have been so successful as to warrant release on parole otherwise. [at 435]
The 2C technique for dealing with sex offenders is different from that which prevailed before September 1, 1979. Now a sex offender, like any other defendant, must be given a definite sentence under chapters 43 and 44 of the Code of Criminal Justice. N.J.S.A. 2C:47-3 b. This means that in a proper case he can receive a mandatory minimum sentence (N.J.S.A. 2C:43-6), or an extended term (N.J.S.A. 2C:43-7). But, as before, he "shall be released under parole supervision when it shall appear . . . that such person is capable of making an acceptable social adjustment in the community. . . ." N.J.S.A. 2C:47-5. The Code recognized that the Sex Offender Act has not been repealed, and that the object of confining a compulsive and repetitive sex offender to ADTC is therapeutic, not punitive. That is why our dissenting colleague's observations about Johnson's prior record are inappropriate. Johnson is receiving therapy. True, it is forced therapy, but under our sex offender program he is to be treated, not punished. For better or worse, by our law he is not being chastised. To bring up his prior record and say that he is a bad man and should be made to suffer for it, under the circumstances, is simply a non-sequitur. The decision that he should receive therapy was made in 1962; after almost 20 years, this is not the time to punish him.
Our dissenting colleague says that "The probabilities are that he continues to be a risk." ante at 11. We note this is an opinion which the staff at ADTC does not share.
Nor are we free to disregard Johnson's record at the ADTC. If the findings there may be used to deny relief (State v. Rothfeld , 170 N.J. Super. 514 (Law Div.1979); State v. Von Graevenitz , 176 N.J. Super. 210, 214 (App.Div.1980), they ...