On appeal from Superior Court of New Jersey, Law Division, Hudson County.
J. H. Coleman and Baime. The opinion of the court was delivered by J. H. Coleman, P.J.A.D.
In this appeal, we must decide whether a sex offender convicted under Title 2A and is resentenced under the New Jersey Code of Criminal Justice (Code) may receive a term of parole ineligibility. The Resentencing Panel concluded that any period of parole ineligibility would be an increase in detention, contrary to N.J.S.A. 2C:1-1d(2). We hold that the Panel erred.
In 1976, defendant pleaded guilty to two counts of rape while armed, contrary to N.J.S.A. 2A:138-1, and one count of lewdness, contrary to N.J.S.A. 2A:115-1. Defendant was sentenced on August 5, 1976 to two concurrent indeterminate terms, not to exceed 30 years, to the Adult Diagnostic and Treatment Center in Avenel (ADTC) for the rapes. He was also sentenced to ADTC on the lewdness count. Defendant was paroled from ADTC on July 8, 1980. While on parole, defendant was arrested on January 8, 1981 and charged with aggravated sexual
assault, kidnapping and possession of a sawed-off shotgun. He was returned to the ADTC on January 27, 1981. His parole was revoked on April 3, 1981. On April 19, 1982 defendant was sentenced on the new offenses, but we have not been provided with copies of the judgments of conviction. Defendant was transferred from the ADTC to the general prison population because he either refused treatment or was not amenable to treatment.
On February 1, 1988, defendant moved to be resentenced under the provisions of N.J.S.A. 2C:1-1d(2) and Gerald v. Commissioner, N.J. Dept. of Corr., 102 N.J. 435 (1986). On April 8, 1988, defendant was resentenced on the two rapes to consecutive 15-year custodial terms. It was undisputed that the congruent or equivalent crimes under the Code were aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a(4).
The State has appealed contending that parole disqualifiers should have been imposed. Defendant counters that parole disqualifiers would represent sentence enhancement in violation of N.J.S.A. 2C:1-1d(2) and double jeopardy principles.
Although the issue has not been raised, we note that the State has a right to prosecute this appeal from a resentencing which it deems too lenient. State v. Johnson, 176 N.J. Super. 1, 5-7 (App.Div.1980), aff'd 88 N.J. 26 (1981). R. 2:3-1(b)(4) provides that the State may appeal a post-conviction judgment collaterally attacking a sentence. The State's appeal does not violate principles of double jeopardy because defendant could have no expectation of finality since he initiated the proceedings to change his sentence. State v. Sanders, 107 N.J. 609, 618-621 (1987); State v. Rodriguez, 97 N.J. 263, 270 (1984).
We agree with the State that a defendant who seeks to be resentenced under the Code pursuant to Gerald is eligible to receive a term of parole disqualification. A resentencing under Gerald is intended to achieve parity between Title 2A and Code sex offenders. Gerald is instructive as to what is to be considered relevant at the resentencing:
The sentence now to be imposed should reflect the changes in sentencing policy under the Code of Criminal Justice. See, e.g., State v. Roth, 95 N.J. 334, 340 (1984) (Code establishes 'an entirely new sentencing process'); State v. Hodge, 95 N.J. 369, 375 (1984) ('new sentencing philosophy of the Code'). The sentencing judge is authorized to consider punitive aspects of the sentence, the sentencing term, parole ineligibility, and the overall restructuring of the sentence, including any consecutive feature. State v. Yarbough, 100 N.J. 627, 643-45 (1985), cert. denied, 475 U.S. 1014 [475 U.S. 1014], 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986); State v. Rodriguez, 97 N.J. 263, 276-77 (1984); State v. Chapman, 95 N.J. 582, 591-93 (1984); State v. Hodge, supra, 95 N.J. at 376-77; In re Parole Application of Trantino, 89 N.J. 347, 368-69 (1982). [ Gerald v. Commissioner, 102 N.J. at 438].
In a Gerald resentencing, the court must consider N.J.S.A. 2C:1-1d(2) which provides that "no period of detention or supervision shall be increased as a result of such resentencing." Our task is to interpret the words in the statute in light of the purposes the Legislature sought to further. State v. Maguire, 84 N.J. 508, 517 (1980); State v. Madden, 61 N.J. 377, 389 (1972). One Legislative objective of N.J.S.A. 2C:1-1d(2) was to help alleviate disparity of treatment between persons serving sentences imposed under Title 2A and those sentenced on congruent offenses under the Code. State v. Maguire, supra, 84 N.J. at 527-28. See generally State v. Roth, 95 N.J. 334, 369 (1984). We are persuaded that N.J.S.A. 2C:1-1d(2) does not preclude terms of parole ineligibility. What Judge Goldmann said 35 years ago is worth repeating: "When sentence is imposed upon a defendant, there is no constitutional ...