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State v. Bianco

Decided: April 6, 1984.


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

Matthews, J.h., Coleman and Gaulkin.

Per Curiam

Defendant was charged together with his mother, Nancy Bianco, with two counts of conspiracy to commit robbery (N.J.S.A. 2C:5-2) and two counts of first degree robbery (N.J.S.A. 2C:15-1).

Following plea negotiations, defendant entered a retraxit plea of guilty to one count of first degree robbery. The State agreed to move to dismiss the remaining counts and to recommend that any custodial sentence be concurrent but not coterminous with defendant's Essex County sentences. The State also reserved the right to speak at sentencing. Defendant was questioned by the court to ascertain whether he understood the nature and consequences of his plea. He was specifically informed by the court of the custodial sentence, fines and penalties that could be imposed and that he could receive a period of parole ineligibility. Satisfied that the guilty plea was

knowing and voluntary and supported by a sufficient factual basis, the court accepted the plea.

Defendant was thereafter sentenced to a custodial term of 20 years with a 10 year period of parole ineligibility.*fn1 This sentence was concurrent, but not coterminous, with his sentences imposed in Essex County.*fn2 He also was ordered to pay a penalty of $25 to the Violent Crimes Compensation Board. The remaining counts of the indictment were dismissed by the court.

A notice of appeal was filed on defendant's behalf and the appeal was argued before Judges Gaulkin and Shebell. An order was entered by the court affirming defendant's judgment of conviction and sentence.

Defendant thereafter petitioned the Supreme Court for certification on the grounds that he was denied equal protection and due process of law because his appeal was heard as part of the Appellate Division's Excessive Sentence Oral Argument Program (the Program) which was approved by order of the Supreme Court on March 22, 1984. The petition was granted and the cause was remanded to this court for consideration of the equal protection and due process arguments raised in the petition. 99 N.J. 191


Defendant's constitutional claims are based upon the following description of the Program which, he states, comes from the knowledge of his counsel and conversation with a staff attorney in the office of the Clerk of the Appellate Division.*fn3


The Pilot Project for Excessive Sentence Appeals is an experimental program established by court order to expedite the appeal of a sentence imposed pursuant to a plea agreement. The program accomplishes its objective by abbreviating the appellate review accorded an appeal in which excessiveness of sentence is the sole issue. Essentially, the program reduces an appeal to a limited oral presentation of argument. Appeals involving other issues or exceptionally lengthy sentences are exempt from the program and entitled to traditional appellate review. The program, which was designed to reduce the backlog of cases present within the Office of the Public Defender, applies exclusively to defendants with assigned counsel. It does not apply to defendants with private counsel.

The selection of cases for participation in the program is made randomly without reference to articulable standards. Ready cases are simply chosen by lottery without regard to age of case or other distinguishing factor. Since the inception of the program in March 1984, the practice of the Appellate Division has been to select 40 to 60 cases for disposition in a single day. The program has operated twice a month. Cases that are not chosen by the program are administered by the Public Defender according to the established practice of appellate procedure. A defendant is not allowed the option of withdrawing his appeal from the program once it is selected.

Prior to the hearing, the Appellate Division is provided with transcripts of the plea and sentencing hearings, the indictment, judgment of conviction and the presentence report. Counsel for the appellants are allowed to present oral argument to the court and are not permitted to submit written briefs. As a practical matter, the average argument lasts approximately five to ten minutes and the appeals are decided by the court in assembly-line fashion. The proceedings are neither recorded, nor transcribed. The court does not explicate its decision, but issues an order at a later date without a statement of reasons.

The procedure of appellate review afforded cases under the Pilot Project differs from the procedure accorded other appeals. Ordinarily, an appeal consists of the right to submit a written brief, to reply to the written argument of opposing counsel and to request oral argument. The Pilot Project reduces the right to appeal to a fleeting oral argument. The effect of the program is to deprive the defendant of the benefit of full appellate review, including, most importantly, a record of the proceedings. [footnote omitted]

In response to this description offered by defendant, we requested Wesley R. LaBar, Deputy Clerk of this court, to submit his certification detailing the genesis, design and operation of the Program. That certification, which has been filed as part of the record on this appeal, is set forth in full as an appendix to this opinion. It discloses that the Program was proposed only after intensive research and study. It came

about as a direct result of the creation and subsequent activity of the special five judge criminal panel of this court which was instituted in September 1984 at the direction of the Chief Justice. Because of its specialization, that panel was better able to track the different types of criminal appeals filed and pending before the court. In the area of appeals involving only the excessiveness of sentence, the court found itself confronted with an inventory of 568 cases some of which were three to four years old. That backlog was due mainly to the inability of the Public Defender to file briefs because of personnel and budget deficiencies. The judges were concerned that some defendants might be serving illegal or excessive sentences which could be fully served before being subjected to appellate review.

When the Program was instituted, appeals were generally scheduled for disposition according to the age of the case. The older the case, the earlier it would appear on the excessive sentence calendar. It was the intention of the court that all excessive sentence appeals be disposed of in similar manner. Contrary to defendant's contention, the Program applied and presently applies to cases in which private counsel has been retained as well as Public Defender cases. Of course the former are in a distinct minority; cases which involve the sole issue of excessiveness of sentence are almost exclusively Public Defender cases.

At the beginning of the Program it was found that, in some instances, excessive sentence appeals had been assigned by the Public Defender to designated counsel for briefing on a contract basis. In those cases we accepted the briefs which were filed since they had been paid for by the Public Defender; our judicial review was based upon the records and briefs and oral argument was rarely heard. The Public Defender was instructed by the court to terminate the use of designated counsel in excessive sentences cases, and the court refused after August 20, 1984 to accept any briefs in those cases. It was and is the

court's intention that all excessive sentence cases be handled in the same manner.


Defendant first argues that the Program deprives him of the equal protection of the law in that it creates a subclass among those similarly situated and discriminates against them by arbitrarily denying them the benefit of appellate review. Specifically, he says, those defendants "selected' for the Program are deprived of the opportunity to present written argument, a record of the argument presented to the court, a full statement of the reasons for the court's decision and an opportunity for meaningful further review. Defendant contends that the Program's special handling of excessive sentence appeals represents an arbitrary classification bearing no rational relationship to a legitimate state interest. We find, to the contrary, that a very substantial State interest is rationally and effectively advanced by singling out excessive sentence appeals for disposition with oral argument but without briefs. Moreover, we are satisfied that such disparate treatment does not work to the disadvantage of any defendant or class of defendants.

The American Bar Association has suggested a number of procedural devices for reducing the delay resulting from the dramatic rise in criminal appeals, including elimination of briefs. American Bar Association, Criminal Appeals (1978), commentary to standard 21-3.1 at 21.38. Handling of appeals through creating different procedures depending on the complexity of the case is deemed desirable, so long as the appellate panel is informed of the facts, understands the arguments of the party and collegially reaches a reasoned conclusion. Id., standard 21-3.4 at 21.47.

Professors Carrington, Meador and Rosenberg in their wellknown book Justice on Appeal (1976), have stated this with respect to the elimination of briefs in certain types of appeals:

The idea of dispensing with briefs derives from the realization that close study of the written arguments and of cases and statutes is not called for in all cases. The special advantages of written argumentation are not always useful. Many appeals turn upon matters that can be resolved by oral presentation of the issues and references to the record or papers on appeal. This is especially so where the issues are simple or routine, involving only well settled issues of law and their application to relatively uncomplicated factual situations. In such cases it may be that written briefs simply complicate the judge's task by encouraging the parties to conceive and develop arguments that may not be central to disposition of the appeal. An experiment conducted with a group of state appellate judges confirms that it is entirely possible to decide a case without briefs, at least where the issues are relatively few and simple. This has always been done in English appeals.

Under the program, the court is supplied in each case with a copy of the indictment, a copy of the plea transcript, the sentencing transcript, the presentence report and the judgment of conviction which contains the sentence and also the reasons given by the sentencing judge. These documents are reviewed by the judges hearing the appeal before oral argument. At argument, counsel is not restricted as to his time, except as it is restricted under the rules of court. He has the opportunity to present the specifics with respect to his client in an effort to demonstrate that the sentence imposed is manifestly excessive or harsh, otherwise illegal or not in accord with the plea bargain. The judges have an opportunity to question counsel about anything in the documents before them which might conflict with or support the argument being advanced by counsel. The experience of the judges who have participated in the program is positive. It has shown that the judges, after reading the documents submitted and hearing the argument of counsel, fully understand the nature of the complaint that is being brought to them and are fully prepared to deal intelligently with it.

Since the commencement of the present term of court, the presiding judge for administration has directed that all oral arguments in excessive sentence appeals be recorded by tape-recorder. This directive came about after a request was made for such recordation of arguments by the Public Defender, whose clients sought information as to the substance of the

appellate proceedings waged in their behalf. The record which is transcribed contains the argument of counsel and the colloquy of the court but does not indicate the decision which is reached later by the judges in conference.

Defendant argues also that the use of a summary order rather than an opinion containing a full statement of reasons for the court's decision also deprives him of an opportunity for further meaningful review. Again we must disagree. Under the old procedure, the opinion issued by the court was in most cases, a summary affirmance citing R. 2:11-3.

There is no requirement in law or rule of court dictating that an appellate court must accompany its decision by a written opinion, except in the case of a judge dissenting in the Appellate Division. See R. 2:11-3. Nor does the fact that the disposition of a case is by a summary order, rather than a formal published opinion, indicate that less than adequate consideration has been given to the claims raised on the appeal. As we have noted, the judges have reviewed the documents submitted and thereafter heard oral argument with respect to each appellant. Subsequent to argument, the judges confer, and after that procedure, the order is entered. The fact that an order is entered should assure the appellant that the judges have viewed his claim in light of existing precedents, and have concluded that there is nothing in the case that would add to the jurisprudence existing by the publication of an opinion. Where a reduction or modification of a sentence is recommended, it is usually accompanied with a brief statement of the reason and the cause remanded to the sentencing court for further proceedings consistent with the direction. On few occasions, the court has modified a sentence or vacated a sentence on its own, and when it does so, it invariably states the reasons for the action taken. We find no merit in this argument. See United States v. Baynes, 548 F.2d 481 (3 Cir.1977), United States v. Marines, 535 F.2d 552 (10 Cir.1976) and Furman v. United States, 720 F.2d 263 (2 Cir.1983).

Defendant is also mistaken when he contends that his sentence, as well as all of the sentences reviewed in the Program, was chosen by lottery and therefore created a class among the class of defendants eligible for the Program. Assuming legitimacy to this argument, we need only note that a lottery system was never employed in choosing the appeals. In some instances, an older case could not be placed on a calendar because documents necessary for review by the judges had not yet been filed with the court. Such a case was skipped over and a newer complete case was placed on the calendar for review.


Nor do we find any merit in defendant's argument that the procedures employed in the Program violated his due process rights.

At the outset we note that the United States Supreme Court has held that the due process clause of the Fourteenth Amendment does not require a state to provide appellate review. Ohio ex rel. Bryant v. Akron Metropolitan Park Dist., 281 U.S. 74, 80, 50 S. Ct. 228, 230, 74 L. Ed. 710 (1930). Accord, Lindsey v. Normet, 405 U.S. 56, 77, 92 S. Ct. 862, 876, 31 L. Ed. 2d 36 (1972); Griffin v. Illinois, 351 U.S. 12, 18, 76 S. Ct. 585, 590, 100 L. Ed. 891 (1956), reh. den. 351 U.S. 958, 76 S. Ct. 844, 100 L. Ed. 1480 (1956). The Court recently reaffirmed this proposition, stating "[t]here is, of course, no constitutional right to an appeal. . . .' Jones v. Barnes, 463 U.S. 745, 103 S. Ct. 3308, 77 L. Ed. 2d 987, 993 (1983).

Of course, if a state does provide an avenue of appeal, it must be implemented fairly. The State must provide an indigent criminal defendant with the means necessary to prosecute an appeal, such as a free transcript and effective assistance of counsel. Otherwise the indigent would be denied appellate review by reason of poverty. Jones v. Barnes, 463 U.S. at 752, 103 S. Ct. at 3312, 77 L. Ed. 2d at 993; Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967)

reh. den. 338 U.S. 924, 87 S. Ct. 2094, 18 L. Ed. 2d 1377 (1956); Griffin v. Illinois, 351 U.S. at 17-18, 76 S. Ct. at 589-90.

Our State Constitution, however, does provide for the appellate review of criminal convictions. N.J. Const. (1947), Art. VI, ยง 5, par. 2. Since appellate review of a final judgment by a state court in a criminal matter is not a necessary element of due process of law, such review may be granted upon such terms as the state deems proper.*fn4 Application of Boyer, 226 F. Supp. 888, 891 (D.N.J.1963), aff'd o.b. 328 F.2d 620 (3 Cir.1964), cert. den. 377 U.S. 937, 84 S. Ct. 1342, 12 L. Ed. 2d 300 (1964). A state can, consistently with the Fourteenth Amendment, provide for differences so long as the result does not amount to a denial of due process or an invidious discrimination. Ross v. Moffitt, 417 U.S. 600, 608, 94 S. Ct. 2437, 2442, 41 L. Ed. 2d 341 (1974); Douglas v. California, 372 U.S. 353, 356, 83 S. Ct. 814, 816, 9 L. Ed. 2d 811 (1963).

The Fourteenth Amendment does not require absolute equality or precisely equal advantages. Ross v. Moffitt, 417 U.S. at 612, 94 S. Ct. at 2444; Douglas v. California, 372 U.S. at 357, 83 S. Ct. at 816. It does require that the state appellate system be free of unreasoned distinctions, and that indigents have an adequate opportunity to present their claims fairly within the adversary system. Ross v. Moffitt, 417 U.S. at 612 and 616, 94 S. Ct. at 2446; United States v. MacCollom, 426 U.S. 317, 325-326, 96 S. Ct. 2086, 2091-92, 48 L. Ed. 2d 666 (1976). Unfairness results only if indigents are singled out by the state and denied meaningful access to the appellate system because of their poverty. Ross v. Moffitt, 417 U.S. at 611, 94 S. Ct. at 2444.

We find no arbitrariness in the Program as we have described it. All excessive sentence cases are disposed of in the

Program; each case is fully and fairly heard, considered and decided; the fact that excessive sentence appeals are disposed of without briefs is not arbitrary in fact or in theory.


For the reasons we have stated, we find no legal infirmities in this defendant's appeal under the excessive sentence program, nor do we find any such infirmities in the Program as a whole.

Defendant once again claims that his sentence is manifestly excessive. He raises this claim both in a supplemental pro se brief and the brief filed on his behalf by the Public Defender. We again have reviewed the arguments advanced in this vein and find them totally without merit. R. 2:11-3(e)(2).






I, WESLEY R. LA BAR, of full age, being duly sworn, according to law, upon my oath, depose and say:

1. I am Deputy Clerk of the Appellate Division of the Superior Court of the State of New Jersey.

2. In my capacity as Deputy Clerk, I served as staff person to the Criminal Appeals Expediting Committee from which the recommendation for the excessive sentence oral argument without

out brief procedure emanated last year. As such, I am thoroughly familiar with the establishment of the program and with its practices and procedures.

3. In my capacity as Deputy Clerk, I am also thoroughly familiar with the practices and procedures within the Clerk's office and with Appellate Division case processing statistics.

4. During the court year, September 1, 1982 to August 31, 1983 the Appellate Division of Superior Court of the State of New Jersey entered final dispositions in nearly 6400 appeals. Dispositions outnumbered new filings by three. This was the largest number of filings and dispositions in the history of the court.

5. Criminal appeals comprised approximately 42.5% of all new filings during the 1982-83 court year. For the past several years, criminal appeals were perfected more slowly than civil appeals, and therefore, were disposed of at a slower rate. During this court year, slightly more than 600 more criminal appeals were filed than were disposed. Thus, at the end of this court year, criminal appeals accounted for 54.8% of all pending appeals.

6. In the summer of 1982, Chief Justice Robert N. Wilentz took several steps to address the increasing backlog and increasing delays in the processing and perfecting of criminal appeals. First, he established an experimental 5-judge criminal part of the Appellate Division to hear all criminal appeals during the 1983-1984 court year. This experimental part was headed by the Honorable Robert A. Matthews, Presiding Judge for Administration of the Appellate Division. Second, he established the Criminal Appeals Expediting Committee to examine criminal appeals case processing, and to monitor the work of the Office of the Public Defender and the Division of Criminal Justice of the Attorney General's office. Members of the 5-judge criminal part served on the Criminal Appeals Expediting Committee and served as liaison with the Offices of the Public Defender and the Attorney General. The Committee

was staffed by the Administrative Office of the Courts and by ...

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