On appeal from the Superior Court, Law Division, Cumberland County.
Approved for Publication March 23, 1995.
Before Judges Gaulkin, Kestin and A.a. Rodriguez. The opinion of the court was delivered by Gaulkin, P.j.a.d.
The opinion of the court was delivered by: Gaulkin
This sentence appeal comes before us for the third time.
In November 1990, defendant was found guilty by a jury of first-degree aggravated sexual assault (N.J.S.A. 2C:14-2a(3)), simple assault (N.J.S.A. 2C:12-1a(1)) and third-degree terroristic threats (N.J.S.A. 2C:12-3b). He was sentenced as a young adult offender (N.J.S.A. 2C:43-5) to concurrent custodial terms aggregating 28 months. The State appealed, contending that the sentences were illegal; defendant cross-appealed, alleging a number of trial errors. We affirmed the convictions in June 1992, but found that the court "could not lawfully impose less than five-year indeterminate terms on the first- and third-degree convictions." *fn1 The matter was accordingly remanded to the trial court for resentencing.
The original sentencing Judge had died. When the resentencing was moved before another Law Division Judge in July 1992, defense counsel advised the court that defendant had fully served his 28-month sentences and had "maxed out." Counsel arguedthat "double jeopardy bars any additional time" and that in any event "the outer limits of [any additional sentence] ... is five years." The Judge rejected those contentions, finding that defendant "has no vested interest in any illegal sentence." The Judge chose not to sentence defendant as a young adult offender but rather committed him to the custody of the Commissioner of the Department of Corrections for concurrent terms aggregating fifteen years.
Defendant appealed, urging that the sentence "violates double jeopardy" and that "sentence should have been imposed pursuant to the young adult offender statute." This court affirmed in a June 1993 order, determining that "the sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion." In December 1993, on defendant's petition for certification, the Supreme Court summarily remanded the matter to us "for consideration of the double jeopardy issue on the merits."
At the original sentencing, the trial Judge described the first-degree offense as "vicious" and "brutal," but told defendant that he had "a right" to be sentenced as a young adult offender and that he would "extend that statute to you because that's the law and I intend to follow the law." The Judge correctly recited that a five-year indeterminate term was the mandated young adult offender sentence for a crime having a statutory maximum sentence above five years, and that "for good cause shown, the Court can impose a sentence up to the statutory maximum." The Judge stated his intent to impose "the maximum that I can sentence you," which he found to be 28 months, apparently relying on "the primary [parole] eligibility terms available to me under the young adult offender [statute]." At the Conclusion of the sentencing, the Judge stated that the concurrent 28-month indeterminate sentences "are the maximum that the statute provides. If I could do any better, I would, but that's all I can do, I'm helpless."
The State immediately asked the trial Judge to stay the sentence because "the State is exercising its right to appeal that sentence pursuant to N.J.S.A. 2C:44-1f(2)." The Judge found that statute inapplicable and accordingly denied a stay. The State then moved before us for a stay of sentence pending appeal, which we granted. However, neither the prosecutor nor defense counsel took any steps to effectuate the stay and defendant served out his 28-month sentence in full. In the papers before us defendant avers, without objection or contradiction, that he was never given an opportunity to make any election to execute, or not execute, his sentence pending appeal. See R. 2:9-3(d).
We reject the State's argument that, pursuant to R. 2:9-3(d), defendant waived his right to challenge any sentence increase on grounds that execution of the sentence had commenced. As the trial Judge found, the original sentence was not imposed pursuant to N.J.S.A. 2C:44-1f(2): that section provides only that, with respect to first- and second-degree crimes, the State may appeal (1) any noncustodial or probationary sentence and (2) any custodial sentence appropriate to a crime of one degree lower. The mandate that the sentence "shall not become final for 10 days in order to permit the appeal of such sentence by the prosecution," ibid., thus never came into play. The R. 2:9-3(d) waiver provision, which applies only to appeals taken by the State pursuant to N.J.S.A. 2C:44-1f(2), was never implicated. In any event, defendant's uncontradicted showing is that he did not elect to execute the sentence after it had been stayed. The condition fixed by R. 2:9-3(d) for imposing a waiver thus was not satisfied. See State v. Williams, 203 N.J. Super. 513, 497 A.2d 550 (App. Div. 1985). Defendant's double jeopardy challenge to the sentence increase has not been waived.
The double jeopardy provisions of both the United States and New Jersey Constitutions protect against a second prosecution for the same offense after acquittal, against a second prosecutionfor the same offense after conviction, and against multiple punishments for the same offense. United States v. DiFrancesco, 449 U.S. 117, 129, 101 S. Ct. 426, 433, 66 L. Ed. 2d 328, 340 (1980); No Illegal Points v. Florio, 264 N.J. Super. 318, 332, 624 A.2d 981 (App. Div.), certif. ...