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State v. Dillihay

Decided: January 27, 1992.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
DAVID DILLIHAY, DEFENDANT-RESPONDENT



On appeal from the Superior Court, Appellate Division, whose opinion is reported at 241 N.J. Super. 553 (1990).

For affirmance -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock and Stein. For reversal -- Justices O'Hern and Garibaldi. The opinion of the Court was delivered by Stein, J. Garibaldi, J., Dissenting. Justice O'Hern joins in this opinion.

Stein

In this case, as in State v. Brana, 127 N.J. 64, 601 A.2d 1160 (1992), also decided today, we consider the validity of the antimerger provision of N.J.S.A. 2C:35-7, which prohibits distribution of controlled dangerous substances within a school zone, as applied to a defendant who committed first- and second-degree violations of N.J.S.A. 2C:35-5, the provision of New Jersey's Controlled Dangerous Substances Act (the Act) that generally prohibits the manufacturing, distribution, or dispensing of controlled dangerous substances.

Violations of N.J.S.A. 2C:35-5 (Section 5 of the Act) range from first-to fourth-degree crimes; only first-degree violations carry a period of parole ineligibility. N.J.S.A. 2C:35-5(b)(1); 2C:35-5(b)(6). N.J.S.A. 2C:35-7 (Section 7 of the Act) provides that any violation of Section 5 committed within 1,000 feet of a school zone constitutes a separate third-degree offense requiring imposition of a term of parole ineligibility. In addition, Section 7 bars merger of school-zone convictions with convictions under Section 5.

In State v. Gonzalez, 123 N.J. 462, 588 A.2d 816 (1991), we held that principles of statutory construction require third- and fourth-degree Section 5 offenses to merge into Section 7 (school-zone offenses), but explicitly reserved decision regarding whether first- or second-degree Section 5 convictions merge with school-zone offenses. Id. at 464, 588 A.2d 816.

Here, we decide the constitutional issues not reached in Gonzalez, and conclude that subjecting a defendant to punishment for both first- or second-degree Section 5 offenses and a related school-zone offense would violate federal double-jeopardy principles. We therefore construe the statute in order both to preserve its constitutionality and to fulfill the apparent intent of the Legislature. State v. LeFurge, 101 N.J. 404, 423, 502 A.2d 35 (1986); State v. Profaci, 56 N.J. 346, 350, 266 A.2d 579 (1970). We hold that convictions for school-zone offenses must merge into convictions for related first- or second-degree Section 5 offenses, but that in such cases a mandatory minimum sentence no less severe than that required by the school-zone statute should nevertheless be imposed on defendants convicted of a Section 5 offense.

I

The parties do not contest the relevant facts. David Dillihay was arrested by undercover detectives investigating possible narcotics activity at an Atlantic City bar located within 1,000 feet of a school zone. The detectives observed Dillihay drop a film container as one of the detectives approached him. The five tin foil packets that were in the container held phencyclidine-coated marijuana. Dillihay was charged with and convicted of the following offenses:

1. possession of less than one ounce of marijuana with intent to distribute (N.J.S.A. 2C:35-5a(1) and -5b(12)) (fourth degree);

2. possession of marijuana with intent to distribute within a school zone (N.J.S.A. 2C:35-7) (third degree);

3. possession of phencyclidine (N.J.S.A. 2C:35-10a(1)) (third degree);

4. possession of phencyclidine with intent to distribute (N.J.S.A. 2C:35-5a(1) and -5b(7)) (second degree);

5. possession of phencyclidine with intent to distribute within a school zone (N.J.S.A. 2C:35-7) (third degree).

Observing that Dillihay's Section 5 and Section 7 offenses constituted only a single criminal transaction, the Law Division merged the school-zone convictions with the Section 5 convictions. The court determined that to uphold both convictions

would violate fundamental principles of due process, if not federal or state guarantees against double jeopardy, but observed that the Legislature intended that defendants convicted of a school-zone offense be required to serve sentences with a period of parole ineligibility. In accordance with Section 5, the trial court sentenced Dillihay to concurrent terms of seven years and fifteen months for his convictions arising from possession of phencyclidine and marijuana, and also imposed the mandatory minimum term required by Section 7. Dillihay's aggregate sentence was seven years, with two years of parole ineligibility.

The Appellate Division affirmed, 241 N.J. Super. 553, 556, 575 A.2d 876 (1990), relying in part on Judge Skillman's Dissent in State v. Gonzalez, 241 N.J. Super. 92, 99, 574 A.2d 487 (App.Div.1990). The majority of the Dillihay panel concluded that the Section 5 and Section 7 offenses must merge, but that the mandatory minimum sentence required by Section 7 should be imposed. 241 N.J. Super. at 556, 575 A.2d 876. The Dissenting member was of the view that the Legislature had intended to create two separate crimes that would not merge. Ibid. The State appeals as of right to this Court.

II

In addressing questions of merger, we have recognized that merger is rooted in the established principle that "'an accused [who] has committed only one offense * * * cannot be punished as if for two.'" State v. Cole, 120 N.J. 321, 325-26, 576 A.2d 864 (1990) (citing State v. Miller, 108 N.J. 112, 116, 527 A.2d 1362 (1987); State v. Davis, 68 N.J. 69, 342 A.2d 841 (1975)). We have acknowledged that the question whether to merge convictions implicates a defendant's substantive constitutional rights, although we have not specified whether those rights are rooted in principles of double jeopardy, due process, or some other legal tenet. Cole, supra, 120 N.J. at 327, 576 A.2d 864; State v. Truglia, 97 N.J. 513, 522, 480 A.2d 912

(1984); State v. Best, 70 N.J. 56, 61, 356 A.2d 385 (1976); State v. Davis, supra, 68 N.J. at 77, 342 A.2d 841 (1975). We have eschewed a mechanical approach to merger issues in favor of the flexible approach advocated in State v. Davis, id. at 81, 342 A.2d 841, in which a court considering whether to merge convictions should focus on the elements of the crime, the Legislature's intent in enacting the statutes, and the specific facts of each case. Cole, supra, 120 N.J. at 327, 576 A.2d 864. Nonetheless, multiple convictions for related offenses cannot stand in contravention of constitutional principles. Therefore, we examine defendant's claim that to allow separate convictions under both Section 5 and the school-zone statute would violate double-jeopardy principles.

We have consistently interpreted New Jersey's constitutional double-jeopardy protection, N.J. Constitution, article I, paragraph 11, as co-extensive with the guarantee of the federal constitution. U.S. Const. amend. V; State v. Churchdale Leasing, 115 N.J. 83, 107-08, 557 A.2d 277 (1989); State v. DeLuca, 108 N.J. 98, 102, 527 A.2d 1355 (1987); State v. Soto, 241 N.J. Super. 476, 479, 575 A.2d 501 (App.Div.1990). We have not determined, nor need we do so here, whether or to what extent New Jersey's constitutional guarantee affords greater protection than does the federal constitution. Churchdale Leasing, supra, 115 N.J. at 108, 557 A.2d 277. To evaluate whether to convict a defendant for violating both Section 5 and the school-zone statute by the same conduct is permissible, we first examine the federal law of double jeopardy.

Federal double-jeopardy principles require a two-step analysis to determine whether multiple punishment violates double jeopardy. Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S. Ct. 673, 679, 74 L. Ed. 2d 535, 543-44 (1983); Albernaz v. United States, 450 U.S. 333, 344, 101 S. Ct. 1137, 1145, 67 L. Ed. 2d 275, 285 (1981); Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306, 309 (1932). The first step requires the court to consider whether the legislature

intended to impose multiple punishments. Albernaz, supra, 450 U.S. at 344, 101 S. Ct. at 1145, 67 L. Ed. 2d at 285. The federal double-jeopardy guarantee "serves principally as a restraint on courts and prosecutors." Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 2225, 53 L. Ed. 2d 187, 193 (1977). Therefore, "[w]here * * * a legislature specifically authorizes cumulative punishment under two statutes, * * * a court's task of statutory construction is at an end * * * and the trial court or jury may impose cumulative punishment." Missouri v. Hunter, supra, 459 U.S. at 368-69, 103 S. Ct. at 679, 74 L. Ed. 2d at 544.

If, however, the legislative intent to allow multiple punishment is not clear, the Court must then apply the test articulated in Blockburger, supra, 284 U.S. at 304, 52 S. Ct. at 182, 76 L. Ed. at 309, to determine whether the defendant is unconstitutionally faced with multiple punishment for the "same" offense. In the absence of legislative intent to authorize cumulative punishment, to punish a defendant twice for the same offense is unconstitutional. Missouri v. Hunter, supra, 459 U.S. at 366, 103 S. Ct. at 678, 74 L. Ed. 2d at 542 (citing Whalen v. United States, 445 U.S. 684, 691, 100 S. Ct. 1432, 1437, 63 L. Ed. 2d 715, 723 (1980)). Under Blockburger, two offenses are the same unless "each [offense] requires proof of an additional fact which the other does not." 284 U.S. at 304, 52 S. Ct. at 182, 76 L. Ed. at 309.

In New Jersey, we have applied the analysis set forth in Missouri v. Hunter and Blockburger v. United States to cases involving double-jeopardy questions. See Churchdale Leasing, supra, 115 N.J. at 103-07, 557 A.2d 277; State v. DeLuca, 108 N.J. 98, 527 A.2d 1355 (1987); State v. Dively, 92 N.J. 573, 578-83, 458 A.2d 502 (1983). To determine whether the non-merger provision of the school-zone statute violates double jeopardy, we first inquire whether the Legislature clearly intended to permit multiple punishment for violations of both Section 5 and the school-zone statute.

The language of the school-zone statute that controls merger states that

notwithstanding the provisions of N.J.S. 2C:1-8 or any other provisions of law, a conviction arising under this section shall not merge with a conviction for a violation of * * * N.J.S. 2C:35-5 * * * or N.J.S. 2C:35-6. [ N.J.S.A. 2C:35-7 (emphasis added).]

On its face, that provision prohibits merger of a school-zone conviction with any other violation of Section 5. Nevertheless, whether the statutory language contemplates multiple punishments for convictions under both Section 5 and Section 7, or whether it serves only to prohibit merger for sentencing purposes in order that the mandatory minimum sentence authorized in Section 7 be preserved is unclear.

Had the Legislature intended multiple punishment, it could have explicitly authorized consecutive sentencing for related Section 5 and Section 7 offenses. However, Section 7's non-merger provision neither mandates nor refers to consecutive sentencing, leaving to the discretion of the sentencing court whether to impose single or multiple punishment for convictions of related Section 5 and Section 7 offenses. In such cases courts typically have imposed concurrent rather than consecutive sentences. See State v. Graham, 245 N.J. Super. 257, 259, 584 A.2d 878 (App.Div.1991); State v. Gonzalez, supra, 241 N.J. Super. at 95, 574 A.2d 487; State v. Anaya, 238 N.J. Super. 31, 33, 568 A.2d 1208 (App.Div.1990); State v. Blow, 237 N.J. Super. 184, 186, 567 A.2d 253 (App.Div.1989). But see State v. Soto, 241 N.J. Super. 476, 477, 575 A.2d 501 (App.Div.1990) (imposing consecutive sentencing). The normative choice of concurrent rather than consecutive sentences suggests that related violations of Section 5 and Section 7 do not ordinarily justify consecutive sentences, see State v. Yarbough, 100 N.J. 627, 643-44, 498 A.2d 1239 (1985), and that the Legislature has not expressed a clear preference for consecutive sentences.

In determining whether the language of Section 7 clearly authorizes multiple punishment for violations of Section 5 within a school zone, we also ...


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