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State v. Eisenman

May 14, 1998

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAVID EISENMAN, DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division.

The opinion of the court was delivered by: Stein, J.

Argued November 17, 1997

This appeal presents two issues for resolution. The first, whether defendant's criminal prosecution for absconding from parole is barred by principles of double jeopardy and fundamental fairness because of the Parole Board's prior revocation of his parole for substantially the same conduct, is virtually indistinguishable from the issue raised and resolved in State v. Black, ___ N.J. ___, ___ - ___ (1998)(slip op. at 16-18, 21-22), also decided today. The second question is whether the trial court, which sentenced defendant on the same date for multiple auto thefts, properly ordered consecutive suspensions of driving privileges for each theft pursuant to N.J.S.A. 2C:20-2.1.

I.

In September 1987, defendant received a five-year sentence for theft and burglary. Two and one-half months later, he received a five- year sentence for receiving stolen property. In November 1988, defendant was sentenced to a four-year custodial term for theft. Those sentences were ordered to run concurrently. Defendant was paroled in July 1990, but was returned to prison for committing a new offense while on supervised release. In February 1993, defendant was re-paroled on the condition that he remain at the Institute of Human Development, a nonprofit substance abuse treatment center in Atlantic County, for a minimum period of one year. Defendant left that facility without authorization on March 26, 1993, and thereafter had no contact with parole authorities until his arrest on May 12, 1993. On April 1, 1993, defendant was classified as an absconder and a parole warrant issued for his arrest. That warrant was executed on May 13, 1993, the day after defendant's arrest. In September 1993, the Parole Board issued a Notice of Decision revoking defendant's parole on the basis that he had absconded from supervision and had not stayed in drug counseling, and ordering him to serve nine months in prison on the parole violation, retroactive to May 13, 1993.

In July 1994, defendant pleaded guilty to absconding from parole, N.J.S.A. 2C:29-5b, and admitted to several crimes committed both prior to his May 1993 arrest and subsequent to his re-release in February 1994. In April 1993, defendant stole a 1983 Chrysler van from a residential garage in Spring Lake, New Jersey. He explained that he walked up the driveway, entered the unlocked garage with the intent to steal a car, and discovered the unlocked van with the keys in the ignition. Defendant started the van, opened the garage bay door and drove away. The next month, defendant was driving the van through Fair Haven when a police officer attempted to pull him over for speeding. Defendant pulled over, exited the vehicle and fled. As he ran, defendant was checking parked cars in the hope of securing a getaway vehicle. After several minutes, he spotted a 1992 Isuzu Trooper in a residential driveway with the keys in the ignition. Defendant entered and started the vehicle and drove away. Defendant was driving the stolen Isuzu on May 12, 1993, when he was pulled over on the Garden State Parkway by a New Jersey State Trooper. Conducting a roadside search of the vehicle, the State Trooper discovered a marijuana pipe that was later determined to contain trace amounts of marijuana. Defendant admitted to the Trooper that the pipe belonged to him.

Defendant was re-released on February 24, 1994, after posting bail on the pending absconding charge. Approximately 15 days later, defendant walked up a driveway in Deal, New Jersey, and stole both a 1992 Mercedes Benz and a 1993 Jeep Cherokee, both of which had been left unlocked with the keys in the ignition. He took the Mercedes first, dropped it off at a nearby apartment complex, and then returned on foot and took the Jeep. On March 16, defendant drove the Jeep to the Monmouth County Courthouse for a court appearance. Defendant was arrested at the courthouse, where he relinquished the keys to both the Jeep and the Mercedes and informed the police of the location of both vehicles. Police recovered both the Mercedes and the Jeep, but ski boots valued at $700 were missing from one of the vehicles.

Defendant was charged pursuant to three separate indictments with one count of third-degree absconding from parole, three counts of third- degree burglary, one count of second-degree auto theft, four counts of third-degree auto theft, three counts of third-degree receiving stolen property, and single counts of fourth-degree hindering apprehension, fourth-degree eluding, and third-degree attempted escape. Defendant pleaded guilty to absconding from parole, one count of third-degree burglary, two counts of third-degree auto theft, one count of second- degree auto theft, and a disorderly persons charge of possession of a controlled dangerous substance. The remaining charges were dismissed.

The court sentenced defendant on August 26, 1994, to custodial terms in accordance with the plea agreement. On the charge of third- degree absconding from parole, N.J.S.A. 2C:29-5b, the court imposed a sentence of five years in prison to be served concurrently with his other sentences. On the charge of second-degree theft of the Mercedes and Jeep, together valued in excess of $75,000, N.J.S.A. 2C:20-3a, the court imposed a seven-year term of incarceration and a ten-year driver's license suspension. On the charges of third-degree burglary at the garage in Spring Lake, N.J.S.A. 2C:18-2, and the third-degree thefts of the Chrysler van and the Isuzu Trooper, N.J.S.A. 2C:20-3a, the court imposed a four-year custodial term to run consecutively to the seven- year term for the theft of the Mercedes and the Jeep, and two ten-year driver's license suspensions. On the disorderly persons offense of possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(4), the court ordered a six-month custodial term and a six-month driver's license suspension. All of the driver's license suspensions were ordered to run consecutively, resulting in an aggregate license suspension of thirty years and six months. Defendant's aggregate custodial sentence was eleven years. In addition, defendant was ordered to pay a mandatory fine of $1000 on each of the three charges of auto theft, restitution for the missing ski boots of $700, $300 in Violent Crimes Compensation Board assessments, $450 in Safe Neighborhood Service Fund assessments, a $750 Drug Enforcement Demand Reduction penalty, and a $50 laboratory fee for the testing on the marijuana pipe. The $1000 fine and ten-year suspension of driving privileges on each auto-theft conviction were imposed by the court pursuant to N.J.S.A. 2C:20-2.1a(3), which provides for those penalties for persons convicted of a third or subsequent auto-theft offense. Defendant's presentence report indicates that he had fifteen prior theft convictions, juvenile and adult, all of which involved motor vehicle theft.

The Appellate Division affirmed defendant's convictions and sentences in an unpublished per curiam opinion, with the exception of a remand for a hearing on the $700 restitution award, for correction of the Safe Neighborhood Service Fund assessment, and for correction of the judgments of conviction regarding the license suspensions to conform to the oral sentence. We granted defendant's petition for certification on the question whether defendant's prosecution for absconding from parole violated the constitutional protection against double jeopardy and principles of fundamental fairness, and the question whether N.J.S.A. 2C:20-2.1 authorizes consecutive driver's license suspensions when a defendant is sentenced on the same date for multiple auto thefts. 150 N.J. 29 (1997).

II.

As explained fully in Black, supra, ___ N.J. at ___ (slip op. at 4), "[t]he Double Jeopardy Clause's prohibition against multiple punishments . . . is not generally implicated by penalties imposed in civil and administrative proceedings." In determining whether a civil or administrative sanction constitutes "punishment" for double jeopardy purposes, this Court has applied the standard articulated by the United States Supreme Court in United States v. Halper, 490 U.S. 435, 446-448, 109 S. Ct. 1892, 1900-02, 104 L. Ed. 2d 487, 500-02 (1989). See State v. Womack, 145 N.J. 576, 583, cert. denied, ___ U.S. ___, 117 S. Ct. 517, 136 L. Ed. 2d 405 (1996); Doe v. Poritz, 142 N.J. 1, 46 (1995). In Womack we held that a sanction may be determined to be punitive, and thus implicate constitutional protections against double jeopardy, if either the law pursuant to which the sanction was imposed was intended by the legislature to impose punishment or the impact of the sanction is punitive. 145 N.J. at 583. We also explained that protection against double jeopardy under the New Jersey Constitution, art. I, ¶ 11, is at least coextensive with the protection afforded by the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution. Id. at 582.

After this Court heard oral argument in this appeal and in State v. Black, supra, the United States Supreme Court decided Hudson v. United States, 522 U.S. ___, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997), in which a five-member majority of the Court largely disavowed the method of double jeopardy analysis used in Halper. See Black, supra, ___ N.J. at ___ - ___ (slip op. at 6-9).

In Hudson, the majority rejected the rule that whether a sanction is subject to double jeopardy restraints depends on whether that sanction is "punitive," as opposed to "solely" remedial in nature, and reestablished the traditional rule that whether a sanction is subject to double jeopardy restraints depends on whether that sanction essentially constitutes a criminal penalty.

[Black, supra, ___ N.J. at ___ (slip op. at 7)(citing Hudson, supra, 522 U.S. at ___, 118 S. Ct. at 493-94, 139 L. Ed. 2d at 458-59).]

We explained in Black that [b]ecause we find that defendant's argument must fail under both federal and New Jersey double jeopardy jurisprudence as it existed prior to the Supreme Court's decision in Hudson, and because application of Hudson would only increase the burden on defendant, we need not address whether New Jersey's double jeopardy jurisprudence should be reevaluated in the wake of Hudson. Therefore, the inquiry sufficient for the Disposition of this appeal remains whether the administrative sanction of parole revocation was intended by the legislature to impose punishment or is punitive in impact in accordance with prevailing federal and New Jersey precedent prior to Hudson.

[Id. at ___ (slip op. at 9).]

That reasoning applies with equal force to this appeal. After a close examination of federal and New Jersey precedents, id. at ___ - ___ (slip op. at 9-16), we concluded that "parole revocation under the New Jersey Parole Act is remedial and rehabilitative in both its essential purpose and its essential effect," and that "it cannot be viewed as punishment triggering the protections against double jeopardy of the state and federal constitutions." Id. at ___ (slip op. at 16).

We distinguished the sanction of parole revocation from the crime of absconding from parole under N.J.S.A. 2C:29-5b, which we explained derives from the crime of escape and "is clearly intended to punish violators of that criminal code provision." Id. at ___ (slip op. at 18). We reemphasize that "[b]y its terms, absconding from parole is a purposive crime that applies only to certain parole violators," ibid., and that "[t]he critical element of the absconding offense is the act of going into hiding or leaving the state for the purpose of avoiding parole supervision." Id. at ___ (slip op. at 19). "It is only the purposeful avoidance of parole supervision that the legislature determined to criminalize for the purposes of deterrence and retribution." Id. at ___ (slip op. at 19-20).

We note, however, although the issue was never raised by defense counsel at the plea hearing or on appeal, that the plea taken from defendant by the trial court was barely sufficient to establish a violation of N.J.S.A. 2C:29-5b. Unlike the defendant in Black, who relocated out-of-state at a location unknown to parole officials, id. at ___, (slip op. at 2), there is no evidence on this record that this defendant "[a]bandon[ed] a place of residence without the prior permission of or notice to the appropriate supervising authority," which under N.J.S.A. 2C:29-5b constitutes "prima facie evidence that the person intended to avoid such supervision."

With regard to absconding from parole, the following colloquy ensued at the plea hearing between the court and defendant:

Q. All right, the indictment charges on escape, March 26, 1993 you did commit the crime of escape by absconding from parole that was imposed three different times, September 25, [19]87 and December 4, [19]87 and November 18, [19]88. Tell me what happened?

[A.] I was released on parole to the Institute of Human Development Drug Program. I was there for about 31 days. I was on a furlough. I came back several hours late. They said they were going to dismiss me from that program and that they, I ...


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