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State v. Holmes

Decided: January 3, 1984.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
PAUL HOLMES, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Monmouth County.

J. H. Coleman and Bachman. The opinion of the court was delivered by J. H. Coleman, J.A.D.

Coleman

[192 NJSuper Page 459] The novel question raised by this appeal is whether a defendant who is sentenced to an extended term (see N.J.S.A.

2C:44-3 a) to the Adult Diagnostic and Treatment Center (ADTC) can be required to serve ten years of parole ineligibility pursuant to N.J.S.A. 2C:14-6 or N.J.S.A. 2C:43-7 b. Defendant pled guilty to sexual assault contrary to N.J.S.A. 2C:14-2 b. He was sentenced to a term of 20 years to the ADTC and required to serve ten years before becoming eligible for parole. We hold that the term of parole ineligibility is legally permissible under both N.J.S.A. 2C:14-6 and N.J.S.A. 2C:43-7 b.

Defendant's guilty plea was based upon touching the vagina of his four year old niece for sexual gratification. At the time of the guilty plea, defendant acknowledged that he was exposed to a minimum period of parole ineligibility of five years pursuant to N.J.S.A. 2C:14-6 and that the State would seek an extended term that would expose him to a custodial term of 20 years with ten years of parole ineligibility. He was examined by the ADTC. His conduct was found to constitute a pattern of repetitive, compulsive behavior. N.J.S.A. 2C:47-3 a. Hence, defendant was sentenced as a sex offender.

In this appeal, defendant contends:

1. THE COURT ERRED IN IMPOSING A TEN YEAR MANDATORY MINIMUM PERIOD OF PAROLE INELIGIBILITY AS A CONDITION OF DEFENDANT'S SENTENCE TO AVENEL.

2. THE SENTENCE IMPOSED BELOW IS MANIFESTLY EXCESSIVE AND NOT FAIRLY SUPPORTED BY THE RECORD BELOW.

Even though defendant raises the issue of illegality in the sentence for the first time on this appeal, we will decide the issue without a remand because the public interest requires a resolution. See R. 2:10-5.

Prior to the present offenses, defendant had been convicted on a charge of carnal abuse which occurred about October 6, 1975. That offense also involved a female relative who was nine years old at the time. At the sentencing it was conceded that defendant qualified as a persistent offender pursuant to N.J.S.A. 2C:44-3 a.

The trial judge did not specify whether the ten years of parole ineligibility were imposed pursuant to N.J.S.A. 2C:14-6 or N.J.S.A. 2C:43-7 b. We perceive no reason why the parole ineligibility could not be imposed under either. N.J.S.A. 2C:14-6 provides:

If a person is convicted of a second or subsequent offense under section 2C:14-2 or 2C:14-3a., the sentence imposed under those sections for the second or subsequent offense shall, unless the person is sentenced pursuant to the provisions of 2C:43-7, include a fixed minimum sentence of not less than 5 years during ...


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