On appeal from the Superior Court of New Jersey, Law Division, Somerset County.
Michels, Gaulkin and Stern. The opinion of the Court was delivered by Michels, P.J.A.D.
Defendant Federico R. Fernandez appeals from an order of the Law Division denying his petition for post-conviction relief.
Following plea negotiations, in December 1977, defendant pleaded guilty to (1) rape, a violation of N.J.S.A. 2A:138-1 (Third Count of Indictment No. 525-74-M); (2) rape while armed, a violation of N.J.S.A. 2A:138-1 and N.J.S.A. 2A:151-5; and (3) sodomy while armed, a violation of N.J.S.A. 2A:143-1 and N.J.S.A. 2A:151-5 (First and Second Counts of Indictment No. 95-77-S). The State, for its part of the plea agreement, recommended the dismissal of the remaining counts of both indictments.
In April 1978, defendant was sentenced to the Adult Diagnostic and Treatment Center in Avenel for indeterminate terms, not to exceed 30 years, for the two rape charges (Third Count of Indictment No. 525-74-M and First Count of Indictment No. 95-77-S), and to the State Prison in Trenton for 3 to 5 years for being armed while committing the rape, as charged in Indictment No. 95-77-S. These sentences were to run concurrently with each other. In addition, defendant was sentenced to Avenel for an indeterminate term, not to exceed 20 years, for sodomy (Second Count of Indictment No. 95-77-S) and to State
Prison for 3 to 5 years, for being armed while committing the sodomy. These sentences were to run concurrently with each other and also concurrently with the sentences imposed for the rape and the rape while armed charges in Indictment Nos. 525-74-M and 95-77-S.
In May 1983, defendant moved to be resentenced pursuant to the provisions of N.J.S.A. 2C:1-1d(2) of the New Jersey Code of Criminal Justice (Code). Defendant claimed that he qualified for a 10 year sentence reduction based upon "good cause." He specifically asserted that such resentencing was warranted to reduce the disparity in punishment between him and those who had been sentenced for similar crimes under the provisions of Title 2C. The resentencing panel, concluding that there was not the requisite good cause for resentencing under the Code, denied defendant's application.
Thereafter, in June 1983, defendant filed a petition for post-conviction relief pursuant to R. 3:22-1, alleging that because he was sentenced under the provisions of Title 2A, and therefore could not receive good time and work credits which those sentenced under Title 2C are able to receive, his right to equal protection had been violated. Defendant claimed that, under these circumstances, his sentences were illegal and, therefore, he should be resentenced to a determinate term so that he would be able to receive commutation time for good behavior and work performed. The trial court denied the motion because (1) defendant had not exhausted his right to appeal from the resentencing panel's decision under R. 3:22-3; and (2) the sentences were not violative of defendant's constitutionally guaranteed equal protection rights. This appeal followed.
Defendant now seeks an order granting him the right to earn commutation time for good behavior and work performed on the following grounds set forth in his brief:
POINT I N.J.S.A. 2C:1-1d(1) MANDATES THAT DEFENDANT, COMMITTED TO THE ADULT DIAGNOSTIC AND TREATMENT CENTER FOR AN INDETERMINATE THIRTY YEAR TERM, BE GIVEN THE OPPORTUNITY
TO EARN COMMUTATION CREDITS FOR GOOD BEHAVIOR AND WORK PERFORMED.
POINT II THE FAILURE TO PROVIDE DEFENDANT WITH THE SAME RIGHT TO EARN COMMUTATION CREDITS AS HAS BEEN CONFERRED, SINCE THE EFFECTIVE DATE OF THE CODE, ON THOSE INMATES SERVING SIMILAR SENTENCES FOR SIMILAR CRIMES DEPRIVES HIM OF HIS RIGHT TO EQUAL PROTECTION OF THE LAW UNDER THE FEDERAL AND STATE CONSTITUTIONS.
POINT III DEFENDANT WHO SEEKS TO CHALLENGE THE DENIAL OF THE OPPORTUNITY TO EARN COMMUTATION CREDITS FOR GOOD BEHAVIOR AND WORK PERFORMED PROPERLY SOUGHT A REMEDY BY WAY OF MOTION FOR POST CONVICTION RELIEF.
We have carefully considered these contentions and all of the arguments advanced by defendant in support of them and find that they are clearly without merit.*fn1 R. 2:11-3(e)(2). However, some further comment is necessary with respect to the arguments raised by defendant in Points I and II.
In April 1978, defendant was sentenced to a 30 year indeterminate term at the Adult Diagnostic and Treatment Center at Avenel, pursuant to N.J.S.A. 2A:164-6 of the now repealed Sex Offender Act, N.J.S.A. 2A:164-3 et seq. This act specifically addressed the possibility of remission of sentence in N.J.S.A. 2A:164-10, which provided:
No statute relating to remission of sentence by way of commutation time for good behavior and for work performed shall apply to any such person committed pursuant to section 2A:164-6 of this title, but provision may be made for monetary compensation in [an] amount to be prescribed by the state board of control of institutions and agencies, in lieu of remission of sentence for work performed. [Emphasis supplied].
In August 1978, the Legislature enacted a comprehensive revision of the criminal laws of this State, known as the New Jersey Code of Criminal ...