On certification to the Superior Court, Appellate Division.
For reversal -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler and Pollock. For affirmance -- Justices Garibaldi and O'Hern. Garibaldi, Justice, dissenting. Justice O'Hern joins in this opinion.
A jury convicted defendant of two counts of murder in the first degree for stabbing to death John Cowan and his nine-year-old daughter Jacqueline in the course of a robbery in the Cowan home. The trial court sentenced the defendant to two consecutive life sentences, each with parole ineligibility terms of 25 years, for the two murders. The court also sentenced the defendant to a concurrent five-year term for theft of an automobile that the defendant had used to flee from the scene of the crime.
The defendant appealed. The Appellate Division affirmed the convictions, but vacated the two consecutive life sentences with
25-year parole ineligibility terms and remanded the cause to the trial court to resentence on the two murder convictions. The Appellate Division held that the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 et seq., prohibited the imposition of two consecutive life sentences. We granted the State's petition for certification, 93 N.J. 309 (1983), and reverse.
The crucial error in the Appellate Division's rationale is its conception that a life sentence for first degree murder is a sentence for an "extended term" within the limitation of N.J.S.A. 2C:44-5(a)(3), which states that "[n]ot more than one sentence for an extended term shall be imposed." The Legislature did not intend that a life sentence for murder was an "extended term" as that phrase is used in N.J.S.A. 2C:44-5(a)(3), but rather that "extended term" in that section refers only to N.J.S.A. 2C:44-3, which defines the criteria for an "extended term." However, imposition of a life imprisonment sentence for murder is not based upon N.J.S.A. 2C:44-3. A life sentence for murder is really an ordinary sentence. It is a misnomer to call it an extended term. State v. Hubbard, 176 N.J. Super. 174, 183 (Resentencing Panel 1980) (Coleman, J., dissenting). We acknowledged as much in State v. Maguire, 84 N.J. 508 (1980), wherein we held that imposition of a life sentence for first degree murder was a maximum sentence allowed by the Code, irrespective of the enhancement criteria (persistent offender, professional criminal, or killer for hire) necessary to impose an "extended term" of imprisonment, N.J.S.A. 2C:44-3, in the sentencing for crimes other than murder.*fn1 We concluded in Maguire that a life sentence for murder could be imposed upon consideration of the aggravating factors set out in N.J.S.A.
2C:44-1(a) without regard to the offender-related criteria set forth in N.J.S.A. 2C:44-3.*fn2 84 N.J. at 526. In this respect imposition of a life sentence for murder is not dependent upon the offender's status, but is primarily dependent on the nature of the offense. See also In re Trantino Parole Application, 89 N.J. 347, 375 n. 9 (1982) (noting that a life sentence may be imposed for murder without proof of the specific enhancement criteria provided for other offenses under N.J.S.A. 2C:44-3 and that if defendant had been guilty of two murders, "he might also have received a second sentence, to run consecutively, of either life imprisonment or 30 years with a minimum term of 15 years before becoming parole eligible").
Some confusion arose because, as originally enacted, N.J.S.A. 2C:11-3 provided for a sentence of 30 years for murder but stated that a court could impose an "extended term" which under N.J.S.A. 2C:43-7 would be 30 years to life. The phrase "extended term" in N.J.S.A. 2C:11-3, however, was not intended to trigger the bar on consecutive extended sentences in N.J.S.A. 2C:44-5(a)(3), since it was not imposed pursuant to the enhancement criteria of N.J.S.A. 2C:44-3. Whatever confusion resulted from the use of the phrase "extended term" was completely dissipated when the Legislature in enacting capital punishment amended N.J.S.A. 2C:11-3, effective August 6, 1982, by eliminating the reference to an "extended" sentence for murder under N.J.S.A. 2C:43-7. L. 1982, c. 111, § 1. The amendments were part of the scheme to enact the death penalty and reaffirmed the Court's understanding of the statute. It may be contended that the amendment, having been enacted shortly after Maguire, represented a legislative endorsement of the Court's interpretation of the original act. 1A Sutherland, Statutory Construction § 22.31 at 184 (4th ed. Sands 1972).
The Appellate Division disagreed with State v. Chavies, 185 N.J. Super. 429 (App.Div.1982), certif. den., 91 N.J. 269 (1982), which held that "in the case of murder, life imprisonment is not an extended sentence within the intendment of N.J.S.A. 2C:44-5(a)" and therefore that the "imposition of consecutive life sentences for multiple murders remains a viable 'ordinary' sentencing option without reference to or implication of its extended-term mechanisms, conditions or procedures." Id. at 432. We agree with the Chavies court that this result follows from the reasoning in Maguire. Recently another part of the Appellate Division came to the same conclusion. State v. Houseman, No. A-4651-81 T4 (App.Div. Nov. 16, 1983).
The Appellate Division below relied in large part on the comment in the New Jersey Criminal Law Revision Commission's Final Report on the New Jersey Penal Code that the proposed N.J.S.A. 2C:44-5(a)(3) was inconsistent with State v. Maxey, 42 N.J. 62 (1964), a pre-Code opinion that had upheld imposition of two consecutive life sentences for a defendant convicted of two counts of murder. The reliance is misplaced for the commentary referred to an earlier draft of N.J.S.A. 2C:11-3(b) that had characterized a life sentence for murder as an ordinary, not an extended, term. Accordingly, the comment that State v. Maxey was inconsistent with N.J.S.A. 2C:44-5(a)(3) cannot be interpreted to mean that the Code prohibits the imposition of two consecutive life sentences for murder, but that it prohibits the imposition of two consecutive life terms for crimes other than murder, which Maxey had made possible.
Murder is the most heinous and vile offense proscribed by our criminal laws. The Legislature has determined that the "societal interest in punishing the guilty is so strong" that the crime of murder has never been subject to a statute of limitations. State v. Zarinsky, 75 N.J. 101, 107 (1977). In dealing with this particularly egregious offense, great deference must be given to the ...