On certification to the Superior Court, Appellate Division, whose opinion is reported at 212 N.J. Super. 599 (1986).
For reversal and remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Affirmance -- None. The opinion of the Court was delivered by Stein, J.
[107 NJ Page 612] In this appeal, we consider whether a trial court must set bail immediately after sentencing in order to preserve the State's right to appeal a sentence pursuant to N.J.S.A. 2C:44-1f(2). The sentencing court in this case stayed defendants' sentences for ten days as required by the statute, but declined to entertain applications for bail until after the State filed its notice of appeal. The Appellate Division, in dismissing the State's appeal,
concluded that the failure to establish bail resulted in defendants' partial execution of their sentences, and that any increase in their sentences on appeal would therefore violate federal and state double jeopardy protections. State v. Sanders, 212 N.J. Super. 599, 606-07 (1986). In our view, the State's right to contest a sentence under N.J.S.A. 2C:44-1f(2) does not depend on the availability of bail at the time of sentencing. Accordingly, we reverse the judgment of the Appellate Division. Moreover, because the sentences imposed in this case violate the guidelines contained in the Code of Criminal Justice, we remand the matter to the Law Division for resentencing in accordance with this opinion.
In June 1985, defendants entered retraxit pleas of guilty to charges of conspiracy, N.J.S.A. 2C:5-2; theft by deception of property exceeding $75,000 in value, N.J.S.A. 2C:20-4; promoting gambling, N.J.S.A. 2C:37-2; and two counts of making gifts to public servants, N.J.S.A. 2C:27-6b.*fn1 Defendants' indictment on these charges arose out of their involvement in Co-Op Investments, a complex "pyramid" scheme that they operated with several other individuals in California, New Jersey, and Illinois.*fn2 Potential investors paid $625 in order to participate and were promised potential returns of up to $35,000. Through the use of complicated charts and fictionalized names, defendants ensured that they would keep most of the funds invested by the participants. According to defendant Donald Sanders, over 2,000 New Jersey residents "invested"
more than $1,000,000 in Co-Op Investments. See State v. Sanders, supra, 212 N.J. Super. at 602-03.
Defendants were sentenced on August 1, 1985. At the sentencing hearing, the court found as aggravating factors the nature and circumstances of the offense, N.J.S.A. 2C:44-1a(1);*fn3 the fact that defendants' conduct constituted organized criminal activity, N.J.S.A. 2C:44-1a(5); defendants' prior criminal records (both had been convicted of similar offenses in California and Illinois), N.J.S.A. 2C:44-1a(6); and the need to deter defendants and others from violating the law, N.J.S.A. 2C:44-1a(9). In mitigation, the court found that the victims in this case facilitated the crime, N.J.S.A. 2C:44-1b(5); that defendants were willing to perform community service, N.J.S.A. 2C:44-1b(6); that they had led law-abiding lives for a substantial period before commission of the subject crimes, N.J.S.A. 2C:44-1b(7); that they were likely to respond to probationary treatment, N.J.S.A. 2C:44-1b(10); and that they had displayed a willingness to cooperate with law-enforcement authorities, N.J.S.A. 2C:44-1b(12). Noting that the aggravating factors outweighed the mitigating factors, the court sentenced defendants to five years probation with concurrent 364-day county-jail terms as a condition of the probationary sentence. The court also imposed fines totalling $45,000, ordered each defendant to perform 400 hours of community service, and required each to pay $125 in Violent Crimes Compensation Board penalties.
Upon pronouncement of sentence, the trial court stated that the sentences would not become final for ten days to permit the State to file an appeal. Ms. Sanders' attorney then inquired
whether his client would be released from prison during those ten days.*fn4 The court responded:
No. I would say the status quo stays for ten days. * * * And if [the State is] going to appeal, they better do it quickly, before next week, and * * * when they do, you ...