On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
King and Bilder. The opinion of the court was delivered by King, P.J.A.D.
[204 NJSuper Page 497] This case presents a claim that defendant's resentencing at his own option resulted in an enhancement of punishment in violation of principles of double jeopardy. Defendant McMeekin was indicted in four counts in August 1979 for the murder
of his wife, N.J.S.A. 2A:113-1, 2; assault with intent to kill John Taylor, N.J.S.A. 2A:90-2; atrocious assault and battery upon John Taylor, N.J.S.A. 2A:90-1, and for committing these crimes while armed, N.J.S.A. 2A:151-1. In a jury trial before Judge Huber he was found guilty of manslaughter of his wife and also was found guilty on the other three charges.
He was originally sentenced by Judge Huber in July of 1980 after electing to be sentenced under Title 2C, the then-new Code of Criminal Justice, effective date September 1, 1979. N.J.S.A. 2C:98-4. For sentencing purposes, the judge merged the three counts dealing with Taylor's shooting into one count of aggravated assault. At sentencing Judge Huber said
I presided at your trial, but you didn't give your wife and John Taylor any trial at all. You charged them; you judged them; and you executed them in a very short period of time. They never had a chance to explain, ask you for mercy. You took your wife's life and you also intended to take Taylor's life, and it was only, I think, his natural bodily vigor which sustained him and enabled him to survive.
These are very serious crimes. You killed your wife and you intended to kill your best friend and you shot and severely injured him.
I find that the aggravating factors exceed the mitigating factors. I find that the second degree offense is between five and ten years and it has to be a definite term of years. For the crime of manslaughter of Susan McMeekin I sentence you to ten years in a New Jersey state prison and order that you not be eligible for parole for a period of five years. The crime of assault with intent to kill John Taylor, I sentence you to seven years in New Jersey state prison and order that you not be eligible for parole on that sentence for three years. The sentence for the crime of assault on John Taylor is to run consecutive with the sentence of manslaughter.
Thus the aggregate Title 2C sentence was a maximum of 17 years and a mandatory term of eight years before parole eligibility. N.J.S.A. 2C:43-6(b). The judge also imposed a $1,000 penalty on each of the two counts. In his statement of reasons, the judge repeated that the aggravating factors exceeded the mitigating factors and noted that "defendant who is asking for mercy from the court, showed none to his wife and friend when he discharged the gun at both."
Defendant then appealed his conviction to this court. He made a number of contentions of error, including the assertion
that his sentence was excessive. The appeal was decided by affirmance on July 13, 1982. We made these observations at that time as to the sentence
The defendant's aggregate jail sentence was 17 years, with a minimum of eight years to be served before becoming eligible for parole. N.J.S.A. 2C:43-6(b). This sentence was imposed pursuant to defendant's election to be sentenced under the Code. Defendant contends that he was deprived of the effective assistance of counsel because he was not properly advised with regard to the potential sentences that could have been imposed, particularly with respect to the imposition of a period of parole ineligibility. On a motion to reduce the sentence made prior to this appeal, defendant's trial attorney stated that he had recommended to defendant to elect to be sentenced under the Code. Subsequent to oral argument, in response to our inquiry, designated counsel has now advised this court that if given an election at this time defendant would prefer to be sentenced under Title 2A rather than under Title 2C (the Code). A letter to this effect signed by defendant has also been submitted to us.
Under Title 2A defendant could have been sentenced to a maximum term of ten years for manslaughter, 12 years for assault with intent to kill and ten years for committing the assault while armed as charged under count four of the indictment. N.J.S.A. 2A:113-2; N.J.S.A. 2A:90-2; N.J.S.A. 2A:151-5. The potential maximum aggregate sentence under Title 2A was, therefore, 32 years. The maximum sentence for atrocious assault and battery under N.J.S.A. 2A:90-1 was seven years. However, the trial judge merged the conviction for atrocious assault and battery into the more serious conviction for assault with intent to kill. Because defendant elected to be sentenced under the Code, and the armed feature would play no role in such a sentence, the trial judge also merged and vacated the conviction on count four. The crimes of assault with intent to kill and atrocious assault and battery both constituted aggravated assault under the Code, N.J.S.A. 2C:12-1(b), which is a crime of the second degree for which a maximum prison term of ten years can be imposed. Manslaughter committed in the heat of passion resulting from a reasonable provocation is also a crime of the second degree under the Code, N.J.S.A. 2C:11-4(c), carrying a maximum of ten years. Accordingly, the maximum sentence that could have been imposed on defendant under the Code was 20 years. A parole ineligibility period of up to one half of the maximum or ten years could also have been imposed. N.J.S.A. 2C:43-6(b).
Thus, it cannot be said that defense counsel committed a grave error in recommending that defendant be sentenced under the Code. The worst sentence that could have been imposed was 20 years with a ten year parole ineligibility period. Under Title 2A defendant could have been sentenced to 32 years without a period of parole ineligibility. While defendant might have become eligible for parole earlier with a Title 2A sentence than the eight year minimum parole ineligibility period that was actually imposed, this could not have been predicted at the time sentence was imposed. Moreover, there was no guaranty that defendant would be paroled as soon as he became eligible. Thus,
the maximum term that he could have been required to serve under a Title 2A sentence could have exceeded the time to be served under a Title 2C sentence.
The record is not entirely clear as to the advice defendant received prior to sentencing. No motion was made to the trial court to withdraw his election for sentencing under the Code, and until we raised the issue at oral argument, defendant never clearly asserted that he would elect to be sentenced under Title 2A. The brief for defendant on appeal asserts that the maximum sentence that could have been imposed under Title 2A was 22 years. This was written under the assumption that the armed feature conviction under N.J.S.A. 2A:151-5 was merged and vacated. However, had defendant been sentenced under Title 2A, the armed feature ...