On appeal from the Superior Court, Law Division, Somerset County.
Matthews, Gaulkin and Shebell. The opinion of the court was delivered by Gaulkin, J.A.D.
Defendant pleaded guilty to one count of second-degree burglary (N.J.S.A. 2C:18-2), 11 counts of third-degree burglary (N.J.S.A. 2C:18-2), 8 counts of theft (N.J.S.A. 2C:20-3) and one count of escape (N.J.S.A. 2C:29-5). Pursuant to the plea agreement the State agreed to recommend that two weapons possession counts be dismissed and that any custodial sentence not exceed 20 years in the aggregate with 10 years of parole ineligibility. The State successfully moved to have defendant sentenced to an extended term under N.J.S.A. 2C:44-3(a). Defendant was thereupon sentenced to concurrent terms aggregating 15 years with 7 1/2 years of parole ineligibility. On appeal from the judgment of conviction defendant urges that he was erroneously sentenced pursuant to N.J.S.A. 2C:44-3(a) and that there was an "insufficient factual basis" for his second-degree burglary plea. Since we find both contentions to be meritorious, we need not address the other issues raised by defendant.
Under N.J.S.A. 2C:44-3, the court may impose an extended term of imprisonment when:
a. The defendant is a persistent offender. A persistent offender is a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced.
Defendant's status as a persistent offender was based on two prior convictions, one state and one federal. On the federal offense defendant had been sentenced to 3 years probation pursuant to the Federal Youth Corrections Act of 1950 (YCA), 18 U.S.C.A. § 5005 et seq. That probationary term commenced on July 9, 1976; defendant was early discharged from probation
on April 16, 1979. The State stipulated that the federal conviction had been "set aside" pursuant to 18 U.S.C.A. § 5021:
5021. Certificate setting aside conviction. -- (a) Upon the unconditional discharge by the Commission of a committed youth offender before the expiration of the maximum sentence imposed upon him, the conviction shall be automatically set aside and the Commission shall issue to the youth offender a certificate to that effect.
(b) Where a youth offender has been placed on probation by the court, the court may thereafter, in its discretion, unconditionally discharge such youth offender from probation prior to the expiration of the maximum period of probation theretofore fixed by the court, which discharge shall automatically set aside the conviction, and the court shall issue to the youth offender a certificate to that effect.
Since defendant was unconditionally discharged from probation "prior to the expiration of the maximum period of probation" his conviction was automatically set aside. See Tuten v. United States, 460 U.S. 660, 103 S. Ct. 1412, 75 L. Ed. 2d 359 (1983).
A conviction, once set aside pursuant to the YCA, should not constitute a predicate basis for sentencing pursuant to a recidivist statute. A conviction "set aside by the court is vacated and can have no further operative effect." United States v. Purgason, 565 F.2d 1279, 1280 (4th Cir.1977). This is consistent with federal court interpretations of the language of the YCA as well as its rehabilitative purposes and policies. See United States v. Arrington, 618 F.2d 1119, 1124 (5th Cir.1980), cert. den. 449 U.S. 1086, 101 S. Ct. 876, 66 L. Ed. 2d 812 (1981); United States v. Fryer, 545 F.2d 11, 13 (6th Cir.1976). Those states to consider the question have determined that using a conviction already set aside under the YCA as a basis for enhanced punishment would offend the YCA's second chance policy for youth offenders. State v. Pacheco, 121 Ariz. 88, 588 P.2d 830, 833 (1978); People v. Wunnenberg, 85 Ill. 2d 188, 52 Ill. Dec. 42, 46, 421 N.E. 2d 905, 909 (1981); Smith v. State, 50 Md.App. 638, 440 A.2d 406, 407-10 (1982); People v. ...