On appeal from Superior Court of New Jersey, Law Division, Middlesex County.
Antell, Skillman and Villanueva. The opinion of the court was delivered by Skillman, J.A.D.
The primary issue presented by this appeal is whether a defendant whose sentence has been vacated on appeal may be resentenced to a longer term on one of a related group of convictions provided there is no increase in his aggregate sentence.
Defendant was an inmate at the Middlesex County Correctional Center. Shortly after midnight on September 28, 1986, he and two other inmates attempted to escape. One of the other inmates told Steven Szajko, a correction officer who was manning a control booth, that the electronic device used to open the inmate's cell was not working, and requested Szajko to open the door manually with his key. As Szajko got out his key, defendant hit him on the head with a hard object. Szajko fell to the floor and was jumped by defendant and his confederates, who punched and kicked him. Defendant then handcuffed Szajko's hands behind his back, dragged him into a counselor's office and closed the door. Shortly thereafter, other guards entered the cell area, assumed control of the situation and released Szajko. Szajko was taken to the hospital, where he was treated for injuries to his head, wrist, eye, neck and ribs.
A jury found defendant guilty of criminal restraint, contrary to N.J.S.A. 2C:13-2; robbery, contrary to N.J.S.A. 2C:15-1; attempted escape, contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:29-5; two counts of simple assault, contrary to N.J.S.A. 2C:12-1a; two counts of aggravated assault, contrary to N.J.S.A. 2C:12-1b(5); possession of implements for escape, contrary to N.J.S.A. 2C:29-6a(2); disorderly conduct, contrary to N.J.S.A. 2C:33-2; conspiracy, contrary to N.J.S.A. 2C:5-2; and possession of a weapon for unlawful purposes, contrary to N.J.S.A. 2C:39-4d.
The trial court sentenced defendant to consecutive ten year terms of imprisonment, with five years of parole ineligibility, for attempted escape and robbery. In addition, the court sentenced defendant to concurrent five year terms for criminal restraint, possession of implements for escape, aggravated assault and possession of a weapon for an unlawful purpose, and a concurrent six month term for disorderly conduct. Defendant's conviction for conspiracy was merged into his convictions for robbery, attempted escape, criminal restraint and aggravated assault, and his convictions for simple assault were merged into his convictions for aggravated assault. Thus, defendant was sentenced to an aggregate term of twenty years imprisonment, with ten years of parole ineligibility, which was made consecutive to the sentence defendant was serving at the time of the attempted escape.
We affirmed defendant's conviction and the convictions of two codefendants in an unreported opinion filed April 9, 1991. State v. Seau, Espino and Rosa, A-1159-88T4, A-1193-88T4, A-1416-88T4. We also concluded that the aggravating sentencing factors identified by the trial court were adequately supported by the record, at least as pertains to the offense of attempted escape, and thus there was an adequate basis for imposition of the maximum term and period of parole ineligibility for that offense. However, we further concluded that the trial court had failed to provide a separate statement of reasons for the imposition of a consecutive sentence for robbery. Therefore, we remanded to the trial court to reconsider whether consecutive sentences should be imposed in light of the sentencing guidelines set forth in State v. Yarbough, 100 N.J. 627, 643-44, 498 A.2d 1239 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). In addition, we made the following observation regarding the consecutive sentences which the trial court had imposed at the original sentencing:
[E]ven if consecutive sentences are found to be warranted, the court should not automatically impose such sentences with respect to the two most serious offenses. Rather, the court should consider whether a lesser degree offense, such as aggravated assault upon a law enforcement officer, more directly reflects the infliction of a harm independent of the attempted escape than the higher degree offense of robbery.
On remand, the trial court reimposed a ten year sentence for robbery, but eliminated the period of parole ineligibility and made the sentence concurrent with the sentence for attempted escape. The court also modified defendant's sentence for one of his convictions of aggravated assault upon a law enforcement officer, by adding a two and a half year period of parole ineligibility and requiring the sentence to be served consecutively to the sentence for attempted escape. The court reimposed the same sentences with respect to defendant's other convictions, including the ten year term of imprisonment, with five years parole ineligibility, for attempted escape. Thus, the court on remand imposed an aggregate sentence of fifteen years imprisonment, with seven and a half years parole ineligibility, which was less than defendant's original aggregate sentence of twenty years imprisonment, with ten years of parole ineligibility. The court also again made defendant's sentence consecutive to the sentence he was serving at the time of the attempted escape.
On appeal, defendant argues that the trial court violated his rights under the Double Jeopardy and Due Process Clauses of the federal and state constitutions by increasing his sentence for one count of aggravated assault through the imposition of a period of parole ineligibility which was not part of the original sentence and making this sentence consecutive rather than concurrent. Defendant also argues that even if this change in his sentence was constitutional, the court violated the Yarbough sentencing guidelines by imposing consecutive sentences for an attempted escape and aggravated assault which were part of the same criminal episode. We reject these arguments and affirm.
(1981). Consequently, a defendant who has begun to serve a sentence ordinarily may not be resentenced to an increased term. Ibid. Moreover, a change in a sentence from concurrent to consecutive or the imposition of a period of parole ineligibility which was not part of the original sentence would constitute an increased term. State v. Cruz, 125 N.J. 550, 593 A.2d 1169 (1991); State v. Corbitt, 147 N.J. Super. 195, 200, 370 A.2d 916 (Law Div.1977).
But if a defendant prevails on appeal, an increased term for a particular offense may be imposed under some circumstances without violating due process or double jeopardy guarantees. Thus, in State v. Rodriguez, 97 N.J. 263, 478 A.2d 408 (1984), a defendant was convicted of multiple offenses, including felony murder, for which the court imposed a sentence of twenty years imprisonment, with ten years of parole ineligibility, and robbery, for which the court imposed a consecutive sentence of ten years imprisonment, with five years of parole ineligibility, for an aggregate term of thirty years imprisonment, with fifteen years of parole ineligibility. After this court concluded that defendant's conviction for robbery should have been merged into his conviction for felony murder, the Supreme Court held that the defendant could be resentenced to an increased term for felony murder, so long as his sentence did not exceed the aggregate consecutive term originally imposed for felony murder and robbery. In the course of its opinion the Court stated:
[W]e do not perceive any unfairness to defendant if he were resentenced in this case to a term not in excess of that originally imposed. . . . It is evident that the sentencing court structured its original sentence so that for these related offenses defendant would serve in the aggregate a term of thirty years with fifteen years of parole ineligibility . . . .
We do not believe that other constitutional or policy concerns are compromised by authorizing defendant to be resentenced in conformity to the sentences originally imposed. Many courts have recognized that when a defendant challenges the imposition of one or more sentences and demands that the sentence be vacated, a reviewing court has the power to vacate other sentences imposed by the same judgment that are interdependent with the challenged sentences. . . . Further, courts have recognized that on remand ...