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State v. Kirk

Decided: October 11, 1990.


On appeal from the Superior Court of New Jersey, Law Division, Mercer County.

Dreier and Ashbey. The opinion of the court was delivered by Dreier, J.A.D.


[243 NJSuper Page 638] Defendant has appealed from his sentence imposed after the second remand of this case to the Law Division. Defendant had initially been sentenced by the trial judge to a term of 15 years with a five-year parole disqualifier for what the judge determined to be defendant's second Graves Act conviction. His conviction, however, was overturned on an evidence issue, and defendant was thereafter retried. After defendant's reconviction, the court imposed a sentence of eight years with a four-year period of parole ineligibility (with a concurrent 18-month sentence on another count*fn1). The judge imposed the more lenient sentence because of an intervening change in the

law defining which convictions would be considered as subsequent Graves Act offenses under N.J.S.A. 2C:43-6c. This will be discussed in more detail, infra.

After a second appeal, challenging the procedure used to remove an allegedly tainted juror as well as the term of the mandatory minimum sentence imposed, we again remanded the matter, this time to have the trial judge express his reasons for exceeding both the minimum mandatory first offender Graves Act sentence and the presumptive sentence. In our 1988 opinion on this second appeal, we further noted that while the State had not filed any cross-appeal, it had suggested that the mandatory Graves Act second offender sentence should have been imposed. In our remand, we summarized our response to the State's position as stated during its oral argument:

We there stated [at the oral argument] that the State had taken no cross-appeal, nor had the issue been briefed, and directed that the matter be the subject of an appropriate application to the trial judge. Since the sentencing must be reconsidered in any event, the trial court should approach its sentencing duties anew, following the statutory standards. See State v. Kruse, 105 N.J. 354, 359-360, 521 A.2d 836 (1987). (A-1658-86T4, slip opinion of Feb. 24, 1988, at 12).

The trial judge's three sentencing decisions in this case involved the same issue of Graves Act first or second offender status which has now been the subject of three reported opinions. State v. Windsor, 205 N.J. Super. 450, 501 A.2d 194 (Law Div.1985); State v. Lightfoot, 208 N.J. Super. 475, 479, 506 A.2d 363 (App.Div.1986), overruling State v. Windsor; and State v. Hawks, 114 N.J. 359, 554 A.2d 1330 (1989), overruling State v. Lightfoot, and affirming the Appellate Division decision in Hawks reported at 214 N.J. Super. 430, 519 A.2d 922 (App.Div.1986), with the author of Windsor concurring, but with the author of Lightfoot dissenting. The trial judge in the case before us followed the then-existing case law in each of the three sentences he imposed on defendant. The judge initially relied on State v. Windsor in sentencing defendant as a Graves Act second offender. After Windsor was overruled, the judge

properly found himself bound by Lightfoot and imposed a Graves Act first offender sentence.

When we remanded for the second time in 1988, the trial judge was faced with the conflicting Appellate Division decisions in Hawks and Lightfoot . Since defendant's sentence as either a first or second Graves Act offender had already been made consecutive to another sentence defendant was already serving, and thus his incarceration for a considerable period was assured, the trial judge determined to wait until the conflict in the reported decisions was resolved by the pending appeal to the Supreme Court in the Hawks case. This required the resentencing to be continued for a period in excess of a year. Once it became clear from the 1989 Supreme Court decision in Hawks that defendant should have been sentenced as a Graves Act second offender (as he had been after the first trial), the trial judge finally reimposed the sentence of 15 years with a five-year parole disqualifier.

On this appeal defendant raises two points:

Point I

The higher sentence imposed upon defendant is fundamentally unfair and violates defendant's constitutional right to due process under the fourteenth amendment of the Federal Constitution ...

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