On appeal from the Superior Court of New Jersey, Law Division, Camden County.
O'Brien, Havey and Stern. The opinion of the court was delivered by Stern, J.A.D.
[241 NJSuper Page 461] This case requires us to consider defendant's principal argument that he, after being placed on probation, could not be resentenced to a maximum above that embodied in his original negotiated disposition. While we reject that argument, we nevertheless remand for resentencing consistent with the Supreme Court's recent holdings in State v. Molina, 114 N.J. 181, 553 A.2d 332 (1989) and State v. Baylass, 114 N.J. 169, 553 A.2d 326 (1989).
Defendant was charged with various offenses embodied in multiple indictments. Pursuant to a negotiated plea, he pled guilty in 1982 to second degree robbery, N.J.S.A. 2C:15-1, fourth degree theft, N.J.S.A. 2C:20-3, and third degree attempted burglary, N.J.S.A. 2C:5-1 and 2C:18-2. In exchange, the State recommended dismissal of various charges and that the sentences run concurrently. As a result of the recommendation for concurrent sentences, defendant was exposed to a ten year maximum sentence -- the maximum for the second degree robbery -- as well as a presumption of imprisonment for that offense. See N.J.S.A. 2C:44-1d. At the time of plea, the defendant was advised of the maximum for each offense to which he was pleading guilty and indicated that he understood the recommendation for concurrent sentences and the potential of a maximum ten year term of incarceration. He was not specifically advised about a potential parole ineligibility term.*fn1
On November 4, 1982 defendant was placed on probation conditioned upon his remaining in the Turning Point Drug Program, a rehabilitation program in which he was then enrolled. During the course of the sentence, the judge stated:
Now, the reason you're getting this sentence is because if I pull [you] out of Turning Point the likelihood is you will go back to drugs and that would not be good for you or the community. However, I put you on probation for five years. If you ever go back to drugs, it's a violation of probation and then you can be assured of the fact you will go away to prison for as long as a time I can possibly sentence you.
Defendant spent considerable time thereafter in a drug treatment program. However, on June 6, 1985 defendant admitted violating his probation by not completing the program, being convicted in municipal court for a subsequent theft, being in possession of CDS on February 22, 1985 and having begun
to steal for drugs. After reviewing an updated presentence report, the judge who accepted the guilty plea to the violation resentenced the defendant.
After noting that defendant "had every opportunity . . . to rehabilitate himself," and that he had been "sentenced to probation at least six different times, all to no avail," and that "defendant [is] a repeat offender who has committed crimes against society," id., including second degree robbery with a presumption of imprisonment, the judge reviewed the facts relating to the offenses and defendant's record and concluded that "the public must be protected against him now and in the future" and that "he must now be seriously punished". The judge announced his "intention . . . to protect society for as long a period as possible from the likes of this defendant, . . . [as] there is every probability that he will continue with his criminal ways unless sufficiently punished." Finding "that the aggravating circumstances substantially outweigh the mitigating circumstances" and that "no mitigating circumstances apply", the judge reached
the inescapable conclusion that not only do the aggravating circumstances preponderate in favor of a greater sentence than the presumptive sentence, [but also] that the court is clearly convinced that the aggravating circumstances so substantially outweigh the mitigating circumstances that a period of parole ineligibility must of necessity be imposed to penalize the defendant for his criminal activity hopefully to deter others and more importantly to protect society for as long a period as possible from this particular defendant.
The court thereupon imposed maximum consecutive sentences with maximum parole ineligibility terms -- a ten year sentence with five years parole ineligibility for the robbery, a five year sentence with two and one-half years before parole eligibility on the burglary and an eighteen month sentence with nine months before parole eligibility for the fourth degree theft. The aggregate sentence was therefore sixteen and one-half years with eight and one-quarter years of parole ineligibility.
Defendant appealed and we affirmed the sentence after argument on the Excessive Sentence calendar. Only the issue of excessiveness was considered on the appeal from the violation
of probation proceedings, as evidenced by our order noting that "the sole issue on appeal is the alleged excessiveness of sentence." Defendant subsequently moved for reargument of the appeal. In his accompanying certification counsel stated "[i]n arguing defendant's appeal, it was not urged on his behalf that the rule of law announced in State v. Kovac [ sic ], 91 N.J. 476 [453 A.2d 521] (1982) was applicable to the facts of this case." The motion sought to raise that issue, but the motion was denied.*fn2
Subsequently, defendant filed a petition for post-conviction relief contending that the sentence imposed on the violation of probation was illegal because defendant was "never fully advised of the consequences of his plea", and because a parole ineligibility term was imposed in violation of State v. Kovack, 91 N.J. 476, 453 A.2d 521 (1982). Defendant also argued that the sentence violated the guidelines embodied in State v. Yarbough, 100 N.J. 627, 498 A.2d 1239 (1985). cert. den., 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), and that there was no procedural bar to his post-conviction claims because he had been denied effective assistance of counsel and such a bar would constitute a "fundamental injustice." R. 3:22-4(b). These arguments were made at a hearing on our remand conducted after we reversed the initial summary denial of the petition for post-conviction relief without assignment of counsel. See State v. King, 117 N.J. Super. 109, 283 A.2d 757 (App.Div.1971); R. 3:22-6(a). The petition was denied on September 16, 1988.
We are, of course, precluded from reconsidering the issue of excessiveness decided on the prior appeal. R. 3:22-5. The claims of illegality, however, were not raised on that appeal, and given the motion for reconsideration and the fact that State v. Molina, supra, and State v. Baylass, supra, were
decided while this appeal from the denial of post-conviction relief was pending, we have determined to consider the issues presented to us, see R. 3:22-4(a), (b); cf. State v. Nash, 64 N.J. 464, 474-475, 317 A.2d 689 (1974) (permitting consideration of new case decision); State v. Clark, 65 N.J. 426, 437, 323 A.2d 470 (1974) (relaxing procedural bar in "egregious circumstances"), to the extent that they deal with ...