On certification to the Superior Court, Appellate Division, whose opinion is reported at 232 N.J. Super. 294 (1989).
For reversal and reinstatement -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Clifford, J. O'Hern, J., concurring in result. Garibaldi, J., joins in this opinion. Garibaldi and O'Hern, JJ., concurring in the result.
We granted defendant's petition for certification, 118 N.J. 229, 570 A.2d 981 (1989), to review the Appellate Division's determination that a sex offender convicted and sentenced under Title 2A, the predecessor of Title 2C, the New Jersey Code of Criminal Justice (Code), and thereafter resentenced under the Code, may receive a custodial term that includes a period of parole ineligibility. The Resentencing Panel had concluded that N.J.S.A. 2C:1-1d foreclosed the imposition of a parole disqualifier. The Appellate Division, holding that the Resentencing Panel had erred, remanded to the Panel for entry of amended judgments that included an aggregate term of fifteen years parole ineligibility. State v. Cruz, 232 N.J. Super. 294, 300, 556 A.2d 1295 (1989). We reverse the judgment of the Appellate Division and reinstate the judgment of the Resentencing Panel.
In 1976 defendant, Eric Cruz, pleaded guilty to two counts of rape, N.J.S.A. 2A:138-1, and one count of lewdness, N.J.S.A. 2A:115-1. The court sentenced him under the pre-Code Sex Offender Act, N.J.S.A. 2A:164-3 to -28, on the rape convictions to two concurrent indeterminate terms, not to exceed thirty years, at the Adult Diagnostic and Treatment Center (ADTC), and imposed a five-year concurrent term on the lewdness count. Paroled in 1980, Cruz committed additional offenses in 1981 that resulted in revocation of parole, his return to ADTC, and his conviction and sentence on the new offenses. That same year the Commissioner of Corrections, acting under the authority of N.J.S.A. 2C:47-4b, transferred Cruz from ADTC to the New Jersey State Prison, apparently because defendant had refused treatment (he had escaped after his return to ADTC following his arrest on the 1981 offense) or was not amenable
to treatment. See State v. Cruz, supra, 232 N.J. Super. at 297, 556 A.2d 1295.
Defendant's removal from ADTC and transfer to State Prison required that the court resentence him under the Code. See Gerald v. Commissioner, N.J. Dep't of Corrections, 102 N.J. 435, 508 A.2d 1113 (1986). (Although the Appellate Division opinion states, as do the parties' briefs both below and in this Court, that defendant "moved to be resentenced" following his transfer, see 232 N.J. Super. at 297, 556 A.2d 1295, there is no record support for the assertion that the resentencing process originated with defendant. The point of this digression is that resentencing on transfer from ADTC is not a matter of choice. "[W]hether or not requested by the prisoner, he must, under the mandate of Gerald, be resentenced under the Code." State v. Bowen, 224 N.J. Super. 263, 276, 540 A.2d 218 (App.Div.), certif. denied, 113 N.J. 323, 550 A.2d 442 (1988).) Accordingly, the Resentencing Panel, constrained by its understanding that the law prohibited the imposition of a Code sentence that would include a period of parole ineligibility (an understanding shared by the assistant prosecutor), resentenced defendant on the two rapes to the custody of the Commissioner of Corrections for consecutive fifteen-year custodial terms with no parole disqualifier. (The congruent or equivalent crime under the Code is aggravated sexual assault, N.J.S.A. 2C:14-2a, a first-degree offense.) The Panel reached that result despite the imbalance it perceived in favor of aggravating factors over mitigating (there were none) because it read N.J.S.A. 2C:1-1d to require that the resentence not result in any increase in defendant's period of detention or supervision.
On the State's appeal the Appellate Division held that a defendant who is resentenced under the Code "is eligible to receive a term of parole disqualification." 232 N.J. Super. at 297, 556 A.2d 1295. That court, rejecting defendant's argument that parole disqualifiers would represent sentence enhancement
in violation of 2C:1-1d and of double-jeopardy principles, ibid., reasoned that
[a] determination of whether there has been an increase in the period of detention should be made by comparing defendant's existing aggregate maximum sentence with the maximum base determinate sentence imposed at resentencing. It is the outer limit of the aggregate term of imprisonment or supervision imposed at the resentencing which determines whether the Code sentence exceeds the 2A sentence. This is so because in a Gerald resentencing, the prior (Title 2A) sentencing slate is wiped clean except for the outer limit fixed by the maximum range of the Title 2A sentence. [ Id. at 299, 556 A.2d 1295.]
The court thus held that "a determinate aggregate sentence of 30 years with as much as 15 years of parole ineligibility is not a longer sentence than an indeterminate 30 years." Ibid.
The single question raised in defendant's appeal is whether the imposition of a parole-ineligibility period impermissibly increases the aggregate term of defendant's imprisonment. We hold that it does.
Hovering in the background of this appeal are the differing statutory frameworks for the detention and supervision of sex offenders under the former Sex Offender Act and under the Code.
Under the Sex Offender Act, when a court committed an offender to ADTC for treatment, it sentenced him or her to an indeterminate term. The pertinent statute, N.J.S.A. 2A:164-6, provided that "such order of commitment shall not specify a minimum period of detention, but in no event shall the person be confined or subject to parole supervision for a period of time greater than that provided by law for the crime of which such person was convicted." Hence, the sentencing court could not fix a minimum term, and the indeterminate term was subject only to the maximum term imposable for the crime. Significantly, parole was governed by the psychiatrically-oriented treatment-success standard of N.J.S.A. 2A:164-8, which read:
Any person committed to confinement, as provided for in section 2A:164-6 of this title, may be released under parole supervision when it shall appear to the
satisfaction of the state parole board, after recommendation by a special classification review board appointed by the state board of control of institutions and agencies, that such person is capable of making an acceptable social adjustment in the community.
Under the former sentencing scheme the treatment and rehabilitative purposes of the sex offender's sentence remained unaltered and unaffected by the failure of ADTC to meet those purposes. So even when a defendant was transferred from the diagnostic facility to the general prison population pursuant to the Commissioner's discretionary power under former N.J.S.A. 2A:164-7, ADTC nevertheless had to continue treatment for the offender's psychiatric problems in whatever institution housed that offender. Gerald v. Commissioner, N.J. Dep't of Corrections, 201 N.J. Super. 438, 445, 493 A.2d 556 (App.Div.1985), modified and aff'd, 102 N.J. 435, 508 A.2d 1113 (1986). As the Appellate Division put it in Gerald:
In short, a defendant sentenced as a sex offender remained confined as a sex offender and subject to the conditions of confinement as a sex offender during the entire period of his imprisonment irrespective of his actual amenability to treatment and the institution in which he was confined. One of these conditions was the continued exercise by the Special Classification Review Board of its parole recommendation ...