the merits of petitioner's exhausted claims in Grounds Four and Five.
In Ground Four, petitioner contends that his sentence is manifestly excessive in violation of his federal constitutional rights. In opposition to this, the state Attorney General contends that "sentencing is a matter of state criminal procedure and so long as the sentence imposed falls within statutory bounds does not implicate federal constitutional issues." Answer to Petition for Writ of Habeas corpus at 11-12 (citing Jones v. Superintendent, Rahway State Prison, 725 F.2d 40 (3d Cir. 1984)). While there is some support for this view, see e.g., Grecco v. O'Lone, 661 F. Supp. 408, 415 (D.N.J. 1987), "no sentence is per se constitutional and thus immune from review." Jackson v. Beyer, 750 F. Supp. 153, 154 (D.N.J. 1990) (citing Solem v. Helm, 463 U.S. 277, 290, 77 L. Ed. 2d 637, 103 S. Ct. 3001 (1983)). "Moreover, Congress has determined that habeas corpus is the appropriate remedy for state prisoners challenging the validity of or length of their confinement." Id. (citing Preiser v. Rodriguez, 411 U.S. 475, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973)). This court, therefore can review petitioner's sentence for constitutional violations.
The sentences for each of petitioner's charges fall within the statutory limits as defined by N.J. Stat. Ann. 2C:44-5 and 2C:43-6. A question arises as to whether the sentencing court was correct in its refusal to merge the aggravated assault count with the count charging attempted armed robbery while threatening with a gun. An argument can be made that these two offenses arose out of the same transaction and punishing both would violate the rule against double punishment. In this case however, that argument fails. The New Jersey Appellate Division has addressed this question, and held in a situation similar to this that a first degree robbery count and an aggravated assault count need not be merged where the robbery count was based on an attempt to rob while threatening with a gun, and the aggravated assault count was based on shooting the victim in the thigh moments later. State v. Carlos, 187 N.J. Super. 406, 418, 455 A.2d 89 (App. Div. 1982); see also, Jackson v. Beyer, 750 F. Supp. 153 (D.N.J. 1990) (discussion of merger of offenses). In this case, the aggravated assault occurred moments after the attempted armed robbery was foiled. See Reasons for Sentence: Troy Toulson ("Sentencing Memo") at Da-9-10.
In Ground Five, Petitioner argues that the trial court improperly penalized him by attributing to him an intent to rob the elderly residents of the nursing home when in fact he only intended to hold up the nursing home's office. He reasons that he could not have intended to hold up the residents since it is unlikely that they would have cash on hand to steal while on the other hand, the office would probably have lots of cash. This court need not consider petitioner's claim because the testimony in the trial record about the defendant and his coconspirators' plans to hold up the nursing home could reasonably be interpreted to indicate an intent to rob its residents, and not just the money that might he held in the office. See Brief in support of Petition for Writ of Habeas Corpus at 22-23. Indeed, as likely as petitioner's speculative logic is the possibility that a nursing home may well do all its business by check and invoice and keep no money on the premises, while the residents keep cash on hand, in pocket, and under their mattresses. Id.
Petitioner's claim that the sentencing judge based his sentence on other facts not in the record does merit scrutiny. At his sentencing and in the Sentencing Memo, the judge noted that "at the trial defendant's two juvenile confederates testified for the prosecution. Prior thereto defendant made certain threats of harm to dissuade them from testifying. After the testimony of one of them defendant spit in his face and threatened to kill him." Sentencing Memo at Da-10; see also, Stenographic Transcript of Sentence ("T-II") at 9.
There is testimony in the trial record tending to show that petitioner did threaten one of his confederates prior to the trial. Stenographic Transcript of Trial by Jury ("T-I") at 138-39. There is also testimony from the petitioner denying that he threatened either of the witnesses. T-I at 157-61. It is not clear from the record whether this fact was established. Moreover, there is absolutely nothing in the record to support the judge's statement that "after the testimony of one [of the unindicted coconspirators] defendant spit in his face and threatened to kill him." T-II at 9; see also, T-I at 109 and 141 (where unindicted coconspirators step down from witness stand). There is also nothing in the Presentence Report about these allegations.
The sentencing judge relied on these assertions to support his conclusion that petitioner is a "violent person with a long history of lawlessness," which in turn supported the petitioner's sentence. T-II at 9; Da-10-11. The Court of Appeals in this Circuit has recently held that a sentencing court violates a defendant's federal due process rights when it relies on disputed information in rendering a sentence and emphasized that this is a violation even where there is other undisputed information on which the sentence could be based. United States v. Cifuentes, 863 F.2d 1149 (3d Cir. 1988); accord, State v. Gattling, 95 N.J. Super. 103, 111, 230 A.2d 157 (App. Div. 1967) and State v. Leckis, 79 N.J. Super. 479, 487, 192 A.2d 161 (App. Div. 1963). Therefore, this court holds that the state court violated petitioner's federal constitutional right to due process of law when it relied on facts not in the record to justify petitioner's sentence.
Petitioner's request for habeas corpus relief must be denied with respect to his conviction, but is granted with respect to his sentence. Petitioner's case is remanded for resentencing. His sentence must be based on facts undisputably established. Before the court can rely on disputed facts, the State has the burden to establish them and petitioner must have an opportunity to rebut them. If the State fails to establish the disputed facts or chooses in any event not to rely on them, then, upon resentencing, the court would have to consider (if it finds upon resentencing that the maximum term is again appropriate) whether, pursuant to the New Jersey Supreme Court's opinion in State v. Miller, 108 N.J. 112, 122, 527 A.2d 1362 (1987), the factors used to justify sentencing petitioner to the maximum term for each offense can properly be used to justify consecutive sentences as well.
WILLIAM G. BASSLER
UNITED STATES DISTRICT JUDGE
DATED: May 13, 1992