On Appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Matthews, J. H. Coleman and Gaulkin. The opinion of the court was delivered by Coleman, J.h., J.A.D.
The question raised on this appeal is whether a nonmandatory sentence which is imposed upon resentencing to correct an illegal sentence and which substantially exceeds the original sentence, violates due process of law under the Fifth and Fourteenth Amendments and N.J. Const. (1947), Art. I, par. 1. We hold that under the facts of this case, the answer is in the affirmative.
The essential facts are not disputed. Defendant entered a guilty plea to one count of second degree kidnapping in violation of N.J.S.A. 2C:13-1 a. Pursuant to a plea agreement, he was sentenced as if the kidnapping was a third degree crime. See N.J.S.A. 2C:44-1 f(2). He was sentenced to five years probation on the condition that he serve 364 days in the Bergen County Jail. He was also required to contribute 500 hours of community service after release. A fine of $1,000 was imposed. After a motion for reconsideration of the sentence was denied, defendant appealed to the Appellate Division and sought an emergent stay of the sentence. On that appeal, the State conceded that the condition of the probationary sentence requiring 364 days incarceration was illegal in that it exceeded the 180-days maximum permitted by N.J.S.A. 2C:43-2 b(2) and N.J.S.A. 2C:45-1
c*fn1 which were in effect at the time of the offense. We vacated the sentence and remanded to the Law Division for resentencing. On remand, the Law Division imposed an indeterminate sentence not to exceed five years to the Youth Reception and Correction Center at Yardville. The $1,000 fine was reimposed. Defendant again appeals contending that "the resentence in this case violated defendant's constitutional rights of due process," and that "the resentence in this case violated the constitutional prohibition against double jeopardy."
A sentencing judge is required to consider parole release when imposing sentence. N.J.S.A. 2C:44-1 c(2) provides:
When imposing a sentence of imprisonment the court shall consider the defendant's eligibility for release under the law governing parole, including time credits awarded pursuant to Title 30 of the Revised Statutes, in determining the appropriate term of imprisonment.
The judge recognized this obligation at resentencing and undertook to compare parole on his original 364-day term, on a 180-day term and on a 5-year indeterminate sentence at Yardville. In this connection, he observed:
I do not believe . . . that he should be out in 60 days which is what a 180-day sentence in County Jail means and therefore I have taken the only intermediate course available to me which is a Yardville sentence which I believe will run up to about six or seven months, which may be a few more months than he would have had had he served the 364 days because the parole would give him one-third, he would be out in four months.
This analysis was in error.
A probationary sentence requiring a defendant to serve a term of imprisonment as a condition of probation (N.J.S.A. 2C:43-2 b(2) and N.J.S.A. 2C:45-1 c.) is subject to the provisions of N.J.S.A. 30:4-123.51. The amendments to subsections a. and g., effective July 16, 1982, are controlling. They provide:
a. Each adult inmate sentenced to a term of incarceration in a county penal institution, or to a specific term of years at the State Prison or the correctional institution for women shall become primarily eligible for parole after having served any ...