On appeal from the Superior Court, Law Division, Passaic County.
Michels, Pressler and Trautwein. The opinion of the court was delivered by Pressler, J.A.D. Michels, P.J.A.D. (dissenting in part).
[189 NJSuper Page 381] This appeal raises important questions relating to the sentencing of sex offenders under the New Jersey Code of Criminal
Justice, N.J.S.A. 2C:1-1. The basic problem before us concerns the susceptibility of sex offender sentences to mandatory minimum parole ineligibility periods. The resolution of this problem implicates such considerations as the effect of the sentencing judge's option to impose either a treatment disposition or a prison term on an eligible sex offender; the relationship between the sex offender provisions of chapter 47 of the Code and the 1979 Parole Act, N.J.S.A. 30:4-123.45 et seq.; the effect on sentencing options resulting from a defendant's simultaneous conviction of both eligible sex offenses and other offenses; the applicability to both first and subsequent offenders of N.J.S.A. 2C:43-6 b; the effect and consequences of N.J.S.A. 2C:14-6, which mandates a minimum parole ineligibility of five years for a second or subsequent sex offender, and the interrelationship between N.J.S.A. 2C:43-6 b and N.J.S.A. 2C:14-6.
Defendant Donald Chapman was charged with a variety of offenses arising out of his abduction and sexual assault of a young woman whom he brutally and sadistically abused. Pursuant to a plea agreement he pleaded guilty to two of these charges, kidnapping and aggravated sexual assault, and the State recommended dismissal of the remaining charges. After acceptance of the plea, defendant was referred by the trial judge to the Adult Diagnostic and Treatment Center (Avenel) for evaluation pursuant to N.J.S.A. 2C:47-1. It was there determined that his conduct "was characterized by a pattern of repetitive, compulsive behavior." N.J.S.A. 2C:47-3 a. The Avenel report recommended that defendant be sentenced there for a program of specialized treatment.
At the ensuing sentencing proceeding, the judge considered the question of whether, if he opted to impose an Avenel sentence pursuant to N.J.S.A. 2C:47-3, he could burden that sentence with a minimum parole ineligibility period pursuant to N.J.S.A. 2C:43-6 b, the general provision which accords the sentencing judge the discretion to fix a minimum parole ineligibility term of up to one-half of the set term of imprisonment. He concluded that an Avenel sentence is subject to N.J.S.A.
2C:43-6 b and accordingly entered a judgment of conviction sentencing defendant to Avenel for a term of 20 years on the kidnapping and for a concurrent term of 20 years on the aggravated sexual assault, each term subject to a ten-year mandatory minimum parole ineligibility.
At the sentencing proceeding which resulted in this judgment of conviction, the judge expressly reserved on the question of the applicability of N.J.S.A. 2C:14-6, which provides that upon a defendant's conviction of a second or subsequent sex offense and unless an extended term is imposed pursuant to N.J.S.A. 2C:43-7, the sentence is required to "include a fixed minimum sentence of not less than 5 years during which the defendant shall not be eligible for parole." That section further provides that a second or subsequent offender may not be afforded a suspended sentence or other noncustodial disposition, and further stipulates that a prior sex offender includes not only a conviction under N.J.S.A. 2C:14-2 or 2C:14-3 a, but also under "any similar statute . . . for an offense that is substantially equivalent" to these sections.
Accordingly, a second sentencing proceeding was conducted at which the judge found that defendant's prior conviction under Title 2A of abduction with intent to defile constituted a prior offense within the intendment of N.J.S.A. 2C:14-6. He thus concluded that "under 2C:14-6 [defendant] must serve a fixed minimum sentence of five years during which he shall not be eligible for parole." "A supplement to judgment of conviction" was consequently entered, noting that defendant is "subject to the minimum term of parole ineligibility provisions of N.J.S.A. 2C:14-6. The judgment of conviction (attached hereto) is therefore supplemented accordingly." What was not, however, made clear was whether it was the intention or import of the supplemental judgment to amend the original judgment by substituting N.J.S.A. 2C:14-6 for N.J.S.A. 2C:43-6 b as the source of parole ineligibility and, if so, whether the judge intended to double the mandatory minimum period prescribed by 2C:14-6. Other possible interpretations of the supplemental judgment are
that the judge intended to rely on 2C:14-6 for the first five years of minimum parole ineligibility and 2C:43-6 b for the second five years, or that the judge merely intended to support the 2C:43-6 b parole ineligibility by pointing out that a period of parole ineligibility was in any event required by N.J.S.A. 2C:14-6. As will appear, hereafter, this ambiguity as to the precise meaning of the supplemental judgment of conviction is of significance.
In any event, defendant's appeal from the judgment of conviction, as supplemented, is based on his contention, first, that an Avenel sentence is not subject to a minimum parole ineligibility period pursuant to N.J.S.A. 2C:43-6 b and, second, that the trial judge erred in concluding that the character of his prior Title 2A conviction, the gravamen of which was attempted rape, properly invoked the multiple offender provision of N.J.S.A. 2C:14-6. As to this latter contention, we are satisfied substantially for the reasons stated by the trial judge that defendant was properly adjudicated a second offender pursuant to N.J.S.A. 2C:14-6. We are, however, also satisfied that this conclusion does not render moot the technical problems with the judgment of conviction which we discuss hereafter and which, for the reasons hereafter set forth, require that defendant be resentenced. These problems, moreover, require us to consider defendant's argument respecting the applicability of N.J.S.A. 2C:43-6 b to an Avenel sentence.
Resolution of the issues here requires some brief historical reference. The original Sex Offender Act, N.J.S.A. 2A:164-3 et seq., repealed by the Code, was based on the legislative perception that sex offenders whose conduct resulted from mental aberration constituted a special class of defendants requiring psychiatrically-oriented rehabilitative treatment rather than punitive confinement. It was the further legislative perception that if a sex offender were required to be confined while such treatment was rendered, the confinement should continue until, but not beyond, the time at which he was deemed safe for return to society. See, generally, State v. Clark, 65 N.J. 426, 434-436
(1974); State v. Wingler, 25 N.J. 161, 169-171 (1957). Accordingly, N.J.S.A. 2A:164-5 required the sentencing judge to impose a special treatment disposition upon recommendation of Avenel and its classification of defendant's conduct as repetitive and compulsive. The sentence, if one of commitment rather than probation, was by definition indeterminate subject to the maximum period of incarceration prescribed by statute for the specific crime. N.J.S.A. 2A:164-6. Parole was not available pursuant to a schedule of predetermined eligibility nor were commutation credits for work or good behavior available. Rather, parole release was entirely dependent upon the satisfaction of the parole board, based on the recommendation of the special classification review board, that defendant was "capable of making an acceptable social adjustment in the community." N.J.S.A. 2A:164-8 and 10. A defendant could be paroled, therefore, after a brief custodial period or could actually serve the entire statutory maximum prescribed for his offense. The dispositional scheme, therefore, accorded very little judicial discretion in sentencing, permitted a great disparity among defendants in the time of their actual incarceration and, as it ultimately developed, failed in many cases to provide effective treatment. See, e.g., State v. Harvey, 162 N.J. Super. 386 (Law Div.1978), aff'd o.b. 170 N.J. Super. 391 (App.Div.1979). It was also, of course, arguable that early parole release of some offenders on administrative recommendation alone failed adequately to protect the societal interest.
There was yet another problem encountered in the pre-Code administration and implementation of the Sex Offender Act which was attributable to the strict limitation of Avenel sentencing only to convictions of those crimes therein specifically enumerated. See e.g., State v. Clark, supra; State v. Gibson, 150 N.J. Super. 351 (App.Div.1977), certif. den. 75 N.J. 20 (1977). Thus, it was apparently not an infrequent phenemenon for a defendant to be sentenced to Avenel for a sex offense covered by the act and simultaneously sentenced to State Prison for noncovered offenses, whether or not sex offenses, which were
nevertheless attributable to the same mental or physical abnormality invoking the treatment disposition of the covered offenses. Thus Clark involved such dual sentencing for covered sex crimes and the then uncovered sex crime of incest. Gibson involved an Avenel sentence for rape and a State Prison term for the uncovered nonsex offense of breaking and entering with intent to rape.
The result of such duality in sentencing was that a defendant might well receive treatment at Avenel and be deemed to be rehabilitated and safely returnable to the community as a result thereof but nevertheless, instead of being released, would be required to be transferred to State Prison to complete the originally imposed prison terms in respect of which he might not yet be eligible for parole. This consequence, in particular cases, was manifestly counterproductive, jeopardized the success of the treatment afforded at Avenel and was inappropriate and unnecessary for the protection of society. See, e.g., State v. Clark, supra, 65 N.J. at 432. Clearly, not all nonsex crimes committed as part of a criminal transaction which also involves a covered sex offense spring from the same aberrational sex-oriented impulses which motivated the sex offense. See, e.g., State v. Warfield, 166 N.J. Super. 129 (App.Div.1979) (armed robbery committed against a rape victim). And compare State v. Lewis, 182 N.J. Super. 405 (App.Div.1981). But where sex motivation does account for the nonsex crime, the inappropriateness of service of a prison term following successful Avenel treatment clearly demanded some degree of judicial intervention and led to the holding of State v. Clark, supra, interdicting the imposition of consecutive rather than concurrent Avenel and prison terms in this situation. Thus, as the court in State v. Clark reasoned:
In the case at hand, defendant's anti-social conduct, demonstrated by the five offenses to which he pleaded guilty, was all of a piece, resulting, as the Diagnostic Center report indicated, from the same causes and aberrations, even though not all of the offenses were then covered by the act. The long-time pattern of repetitive and compulsive behavior toward children and young males made it clear that defendant was ill, a menace and much in need of confinement and exposure to treatment. 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. The sentences thus are purely punitive, relating to compulsive conduct having the same root cause which the Legislature has said shall not be the subject of mere punishment. We are convinced that they serve no useful purpose and are indeed contrary, under the circumstances present, to the philosophy and purpose of the sex offender act. By the same token, we conceive them to be grossly unfair and unjust to the defendant.
We therefore conclude that the penal sentences for the non-covered sex offenses should have been made concurrent with and not consecutive to the sex offender commitment and that they can and should now be declared so, which is the relief sought by defendant. [ Id. 65 N.J. at 435-436; footnotes omitted]
At least some of these concerns and problems in respect of both the underlying philosophy of the Sex Offender Act and its implementation motivated the New Jersey Criminal Law Revision Commission, as part of its Final Report on the New Jersey Penal Code, to recommend its repeal. As explained by Professor Knowlton, chairman of the Commission, in "Comments Upon the New Jersey Penal Code," 32 Rutgers L.Rev. 1, 16 (1979):
For several reasons, the commission did not recommend the retention of the sex offender statute. The idea that sex offenders progress to more vicious or dangerous offenses is simply not true; nor is there any reason to believe that sex criminals have a greater need for treatment than other offenders. Finally, society's failure to provide adequate treatment facilities is grossly unfair to persons subject to the special treatment provisions. [Footnotes omitted]
Accordingly, Appendix A of the Commission's Final Report, showing the proposed disposition of Title 2A provisions, indicated that the entire Sex Offender Act was to be replaced by N.J.S.A. 2C:43-7 and 44-3. See N.J. Criminal Law Revision Commission, 1 Final Report: Report and Penal Code 230-231 (1971) (hereafter cited as Final Report: Penal Code). N.J.S.A. 2C:43-7 proposed the imposition of extended terms and N.J.S.A. 2C:44-3 c, as originally drafted, proposed as a criterion for imposing an extended term the finding that the defendant "is a dangerous, mentally abnormal person whose commitment for an extended term is necessary for protection of the public." That finding would have required the judge to conclude that the defendant's mental condition was "gravely abnormal," that his conduct was characterized by a "pattern of repetition or compulsive
behavior or by persistent aggressive behavior," and that his mental condition rendered him a serious danger to others. See 1 Final Report: Penal Code 148, 155. In its Commentary on proposed N.J.S.A. 2C:44-3 c, the Commission explained that it was extending to all offenders the general standard of mental abnormality underlying the Sex Offender Act but that it was proposing to do so not for medical treatment reasons but ...