On appeal from the Superior Court of New Jersey, Law Division, Union County.
Approved for Publication January 24, 1996. As Corrected January 29, 1996.
Before Judges Stern, Wallace and Newman. The opinion of the court was delivered by Stern, J.A.D.
The opinion of the court was delivered by: Stern
The opinion of the court was delivered by STERN, J.A.D.
On October 28, 1991, defendant pled guilty to two counts of second degree sexual assault by virtue of sexual contact with children under thirteen years of age, contrary to N.J.S.A. 2C:14-2b, in exchange for a recommendation that he receive two consecutive sentences of eight years with three years before parole eligibility on each charge. At the time of plea defendant was told "the maximum the Judge can give you is sixteen years in jail with a six year parole ineligibility" term which might have to be served at the Adult Diagnostic and Treatment Center at Avenel.
Defendant, at age thirty-four, was sentenced on April 3, 1992 to two indeterminate terms at the Adult Diagnostic and TreatmentCenter at Avenel for a period not to exceed eight years each. The terms were made to run consecutively. Defendant appealed, and in our order of May 11, 1994, we stated:
that the sentence is illegal and not one authorized by law for the reasons that the court imposed indeterminate terms to Avenel. The sentence is vacated and the matter is remanded to the trial court for imposition of a proper sentence. R. 2:10-3. Although we find that the imposition of consecutive terms to Avenel does not violate State v. Yarbough, we caution the Judge to explore the consequences of imposing two Avenel terms for a fixed number of years, to determine whether the result is in keeping with the Judge's sentencing goals.
The State did not seek further review of the order and does not question what was said therein.
On June 13, 1994, the trial Judge, in chambers and without any proceedings on the record, imposed two concurrent eight year terms at Avenel. The prosecutor and defense counsel learned about the amended judgment shortly after it was entered when inquiries were made about the date to be set for resentencing.
On October 28, 1994 the State moved for reconsideration of defendant's sentence. In paragraph nine of her affidavit accompanying the motion, the Assistant Prosecutor who represented the State at the time of plea and sentence, stated:
The first time I learned of the involvement of the Appellate Division or any appeal related to Mr. Tavares was when I received a letter from Donna Wrenn, Esq. [defense counsel] dated June 9, 1994 (attached) in which she asked your Honor to conference this matter with herself and the State. I do not know if Your Honor read or was aware of the letter from Ms. Wrenn. However, Your Honor did proceed to resentence Mr. Tavares on June 13, 1994, four days after Ms. Wrenn's letter was, I assume, mailed from her office. Shortly after I received Ms. Wrenn's letter, I telephoned Ms. Wrenn to discuss Mr. Tavares' case and learned, at that time, that she had telephoned your office and discovered that Mr. Tavares had been resentenced. At the present time, the State brings this Motion for Your Honor to reconsider the sentence imposed upon Mr. Tavares on June 13, 1994, and to require Your Honor to resentence Mr. Tavares to consecutive sentences to the ADTC, which was the original sentence imposed upon the defendant by Your Honor on April 3, 1992.
The motion was argued on January 20, 1995 and carried by the Judge so that the parties could "brief the effect of my in-camera action in this matter without the input of the State, the victim, the defendant or defense attorney." In its brief, the State urged that the resentencing was conducted in violation of R. 1:2-1 and was, thus, "null and void." The State therefore asserted that the amended sentence was illegal and could be corrected "at any time."
In her brief in opposition to the State's Motion for Reconsideration, defense counsel argued that the sentence was not "illegal." In the brief counsel also wrote:
On June 13, 1994, Your Honor resentenced Mr. Tavares to two concurrent 8 year flat terms to the Adult Diagnostic Treatment Center. Shortly thereafter, a conference was held with Your Honor, Assistant Prosecutor Regina Caulfield and myself. It is my recollection that at that time, Your Honor indicated that the sentence stands and that if the State objected they would have ...