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State v. Haliski

April 20, 1995

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSEPH LEON HALISKI, DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 273 N.J. Super. 157 (1994).

The opinion of the Court was delivered by Coleman, J. Chief Justice Wilentz and Justices Handler, Pollock, and Garibaldi joins in this opinion. Justice O'Hern has filed a separate Dissenting opinion in which Justice Stein joins. Justice Stein has filed a separate Dissenting opinion in which Justice O'Hern joins.

The opinion of the court was delivered by: Coleman

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

STATE OF NEW JERSEY V. JOSEPH LEON HALISKI (A-59-94)

Argued January 4, 1995 -- Decided April 20, 1995

COLEMAN, J., writing for a majority of the Court.

There are two issues before the Court: 1) whether a second Graves Act offender may be sentenced to a mandatory extended term of imprisonment while the first Graves Act conviction is pending on appeal or the time to appeal that conviction has not expired; and 2) whether a defendant may have his or her sentence increased to an extended sentence following affirmance of the first Graves Act conviction without violating principles of fundamental fairness.

Joseph Leon Haliski was convicted of first-degree robbery. Because he was armed with a firearm during the commission of the crime, Haliski was subject to the mandatory extended-term sentence under the Graves Act. The trial court found that a mandatory extended prison term was required because Haliski previously had been convicted of another armed robbery with a firearm. Haliski was sentenced on June 22, 1990 to a mandatory extended term of fifty years with seventeen years of parole ineligibility. That extended sentence was to run consecutive to a fifteen-year prison term with five years of parole ineligibility imposed for his first Graves Act conviction, which was on appeal at the time of June 22, 1990 sentencing. The Appellate Division affirmed Haliski's conviction but vacated the sentence and remanded the matter for resentencing because Haliski was sentenced as a second Graves Act offender before the time to appeal his prior Graves Act conviction had expired. The Supreme Court denied Haliski's petition for certification.

On remand, the trial court resentenced Haliski to an ordinary prison term of fifteen years with a five-year period of parole ineligibility. That sentence was to run consecutive to the sentence imposed for the first Graves Act robbery. At the time of resentencing, the trial Judge was not aware that the Appellate Division recently had affirmed the first Graves Act conviction. Thereafter, the State filed a motion to vacate the ordinary term sentence on the second Graves Act robbery, alleging that the sentence was illegal at the time it was imposed because the Appellate Division already had affirmed the first Graves Act conviction and no petition for certification had been filed. The trial court granted the State's motion and reimposed the original mandatory extended term.

The Appellate Division affirmed the reimposition of the mandatory extended term. A majority of the panel ruled that in sentencing a second Graves Act offender whose prior Graves Act conviction is pending on appeal, the court must impose initially an ordinary prison term because N.J.S.A. 2C:44-4b (section 44Ab) directs that a conviction is not to be considered "prior" before "the time to appeal has expired." The court also found that once the Graves Act conviction is affirmed, the State is entitled to have the sentence increased to an extended term, and that correcting the illegal sentence did not violate considerations of fundamental fairness in view of the legislative mandate. In a Concurring opinion, one Judge disagreed with the majority's rule of law finding that there was no authority for it but concurred in the judgment based on his Conclusion that the imposition of the Graves Act extended term under the circumstances presented did not violate Haliski's due-process or double-jeopardy rights.

The Supreme Court granted certification.

HELD: A second Graves Act offender may be sentenced to a mandatory extended term of imprisonment while the first Graves Act conviction either is pending on appeal or the time to appeal that conviction has not yet expired. In addition, a defendant may have his or her sentence increased to an extended sentence following affirmance of the first Graves Act conviction without violating principles of fundamental fairness.

1. The Graves Act reflects the clear legislative intent to impose mandatory prison terms on those who we firearms during the commission of certain offenses. The Graves Act is concerned with deterrence, not rehabilitation. A majority of courts in other jurisdictions have concluded that a pending appeal on a prior conviction does not preclude its use for enhancement of sentence. These jurisdictions also allow the defendant to petition for modification of sentence if the prior conviction is reversed. The reasoning of a number of courts espousing the majority position is persuasive. (pp. 5-14)

2. Legislative silence or inaction following State v. Mangrella does not justify the Conclusion that the legislature approves of the Mangrella court's reading of section 44-4b. Mangrella involves discretionary sentence enhancement of persistent offenders rather than mandatory enhancement of a sentence under the Graves Act; therefore, the legislature might not have found Mangrella inconsistent with the overall policy of the Code. Insofar as the Graves Act is concerned, the purpose of section 44-4b is to prevent the enhanced sentence from becoming final before completion of the direct appeal in the prior Graves Act conviction or before the time for that appeal has expired. That interpretation is consistent with the policies underlying the Code. As such, Mangrella is inapplicable to an inquiry concerning the mandatory sentencing provisions of the Graves Act. (pp. 15-19)

3. Based on its power to administer the criminal Justice system, the Court has the power to establish provisional sentencing of subsequent Graves Act offenders regardless of the appeal status of the prior Graves Act conviction. Thus, when a defendant is exposed to a Graves Act mandatory extended term, that extended term should be imposed by the court. Should the prior conviction subsequently be reversed on appeal, the trial court shall amend the extended-term sentence to an ordinary Graves Act sentence. Thus, the imposition of the mandatory extended term in Haliski's first sentencing was legal. (pp. 19-22)

4. Due process and double jeopardy bar the imposition of a sentence greater than the one initially imposed in cases where the defendant maintains a "legitimate expectation of finality" in respect of the sentence. Here, Haliski has suffered no deprivation of his constitutional rights as a result of the imposition of the mandatory extended term on his second resentencing. Because Haliski challenged his underlying conviction as well as the sentence on direct appeal, he had no legitimate expectation of finality with respect to either the conviction or the sentence. It is what is sought on appeal, rather than the relief granted, that defines what constitutes a legitimate expectation of finality. (pp. 22-27)

5. The rule adopted today will have limited retroactive application. It shall apply to this case, to all cases in which sentencing on the second Graves Act conviction has not yet occurred, and to all cases where the defendant has been sentenced on the second Graves Act conviction, but as of the date of this decision, the parties have not exhausted all avenues of direct review. The trial court must decide on a case-by-case basis whether today's ruling has altered a defendant's legitimate sentence expectation when negotiated pleas are involved and, if necessary, the court must fashion the appropriate relief. (pp. 27-28)

Judgment of the Appellate Division is AFFIRMED.

Justice O'HERN, Dissenting, in which JUSTICE STEIN joins, is of the view that the Court has designed a system of temporary sentencing that is neither authorized by law nor realistically required to impose a sentence that is appropriate for Haliski. The law need not have been changed in order to accommodate the chronology of events that occurred here because Haliski could have been appropriately sentenced as a persistent offender. Any change to the Code properly should have been left to the legislature.

JUSTICE STEIN, Dissenting, in which JUSTICE O'HERN joins, is of the view that the Court amended the Code to authorize a sentencing procedure nowhere to be found within the Code's provisions. While that amendment makes good sense and will not likely be disturbed by the legislature, the Court usurped the function of the legislature.

CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK and GARIBALDI join in JUSTICE COLEMAN'S opinion. JUSTICE O'HERN has filed a separate Dissenting opinion in which JUSTICE STEIN joins. JUSTICE STEIN has filed a separate Dissenting opinion in which JUSTICE O'HERN joins.

COLEMAN, J.

The central issue in this appeal is whether a second Graves Act offender may be sentenced to a mandatory extended term of imprisonment while the first Graves Act conviction is pending on appeal or the time to appeal that conviction has not expired. A second issue is whether defendant may have his sentence increased to an extended sentence following affirmance of the first Graves Act conviction without violating principles of fundamental fairness.

I

A jury found defendant guilty of first-degree robbery, a violation of N.J.S.A. 2C:15-1. In a presentence hearing conducted pursuant to N.J.S.A. 2C:43-6d, the trial court found that defendant was armed with a firearm during the commission of the robbery and was therefore subject to a mandatory extended-term sentence under the Graves Act, N.J.S.A. 2C:43-6c. The court found that a mandatory extended prison term was required because defendant previously had been convicted of another armed robbery with a firearm. The trial Judge sentenced defendant on June 22, 1990, to a mandatory extended term of fifty years with seventeen years of parole ineligibility. The extended sentence was to run consecutive to a fifteen-year prison term with five years of parole ineligibility imposed for his first Graves Act conviction. The first Graves Act offense, which made defendant eligible for the mandatory extended term, was on appeal when defendant was sentenced on June 22, 1990.

In an unpublished opinion dated April 15, 1992, the Appellate Division affirmed defendant's second robbery conviction. The court, however, vacated the sentence and remanded the matter for resentencing based on the Deputy Attorney General's impression that defendant "must be resentenced because he was sentenced as a second Graves Act offender before the time to appeal his prior Graves Act conviction had expired." We denied defendant's petition for certification. 130 N.J. 393 (1992).

On remand, the trial court resentenced defendant on July 10, 1992, to an ordinary prison term of fifteen years with a five-year term of parole ineligibility. The sentence was made to run consecutive to the sentence imposed for the first Graves Act robbery. At the time of the resentencing, the trial Judge apparently was unaware the Appellate Division had affirmed the first Graves Act conviction eighty-seven days earlier in an unreported decision dated April 14, 1992. Indeed, counsel for defendant informed the Judge, "I believe that appeal is still pending even as we speak." Without intending any criticism, we note that this oversight may have been caused by the fact that neither of the Appellate Division decisions mentioned the other, even though both were decided by the same Judges and filed one day apart.

On October 9, 1992, the State filed a motion pursuant to Rule 3:21-10(b)(4) to vacate the ordinary term sentence on the second Graves Act robbery. The State alleged the sentence was illegal at the time it was imposed because the Appellate Division already had affirmed the first Graves Act conviction and no petition for certification had been filed. The State relied on State v. Paladino, 203 N.J. Super. 537, 549 (App. Div. 1985), for its assertion that an illegal sentence is correctable at any time. Defendant concedes that he could have no legitimate expectations of finality in an illegal sentence. The trial court granted the State's motion and imposed the original mandatory extended term. Defendant also concedes that the only legal sentence as of the time of that second resentencing was the one imposed based on the State's October 9 motion.

The Appellate Division affirmed the reimposition of the mandatory extended term. 273 N.J. Super. 157 (1994). The majority opinion ruled that in sentencing a second Graves Act offender whose prior Graves Act conviction is pending on appeal, the court must impose initially an ordinary prison term because N.J.S.A. 2C:44-4b directs that a conviction is not to be considered "prior" before "the time to appeal has expired." Id. at 160. The majority further held that once the prior Graves Act conviction is affirmed, the State is entitled to have the sentence increased to an extended term. Ibid. The court reasoned that the ordinary sentence is rendered illegal by the affirmance of the prior Graves Act conviction, and an illegal sentence may be corrected at any time. Ibid. (citing Rule 3:22-2(c)); State v. Kirk, 243 N.J. Super. 636 (App. Div. 1990)). The court found that correcting the illegal sentence did not violate considerations of fundamental fairness in view of the legislative mandate.

In a Concurring opinion, Judge Stern disagreed with the rule of law announced by the majority. 273 N.J. Super. at 161. He found no statutory authority for the proposition that a legal ordinary Graves Act sentence may later be increased to an extended term following an affirmance of a prior Graves Act conviction. Nor did he find any authority for concluding that an extended term may be imposed subject to a subsequent decrease should the prior conviction be reversed on appeal. Id. at 162. He was persuaded that the clear language of N.J.S.A. 2C:44-4b prohibits a court from considering a prior judgment as a conviction for Graves Act extended-term purposes if there is an appeal pending, or the time to appeal has not expired. He expressed the view that the Legislature, not the Judiciary, should address the apparent ambiguity in the statutory scheme. Id. at 163.

Even though Judge Stern disagreed with the rule announced in the majority decision, he concurred in the judgment of the court based on his Conclusion that the imposition of the Graves Act extended term under the circumstances presented did not violate defendant's due-process or double-jeopardy rights. Id. at 164. Relying on State v. Rodriguez, 97 N.J. 263, 271 (1984), he reasoned that because defendant's initial appeal challenged the conviction itself as well as the sentence, defendant had no legitimate expectation of finality with respect to his sentence. 273 N.J. Super. at 164. Hence, the majority and Concurring opinions agreed that imposition of the mandatory extended term, once the prior conviction had been affirmed, did not infringe defendant's constitutional rights. Id. at 165. We granted certification, 137 N.J. 310 (1994). We affirm the sentence imposed, but we reject the sentencing procedure approved by the Appellate Division.

II

This case requires us to resolve the tension between two statutes, N.J.S.A. 2C:43-6c and N.J.S.A. 2C:44-4b, which touch upon the legislative intent to require mandatory terms of imprisonment for some repeat offenders who use or possess firearms during the commission of certain offenses. Those statutes must be analyzed against the backdrop of the well-established principle that instead of rehabilitation, "the Graves Act approach is deterrence through the promise of imprisonment." State v. Des Marets, 92 N.J. 62, 71 (1983); see also State v. Stewart, 96 N.J. 596, 601 (1984) (stating that Graves Act "seeks to deter crime, not to rehabilitate criminals").

The Graves Act directs that under some circumstances a defendant who has a prior Graves Act conviction must be required to serve an extended sentence. The Graves Act mandatory extended-sentence provision, N.J.S.A. 2C:43-6c, provides:

A person who has been convicted of an offense enumerated by this subsection and who used or possessed a firearm during its commission, attempted commission or flight therefrom and who has been previously convicted of an offense involving the use or possession of a firearm as defined in 2C:44-3d., shall be sentenced by the court to an extended term as authorized by 2C:43-7c., notwithstanding that extended terms are ordinarily discretionary with the court.

N.J.S.A. 2C:44-4b defines "prior conviction of a crime" as follows:

An adjudication by a court of competent jurisdiction that the defendant committed a crime constitutes a prior conviction, although sentence or the execution thereof was suspended, provided that the time to appeal has expired and ...


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