UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
July 7, 1999
ROBERT DEAVERS, PETITIONER,
WILLIAM F. PLANTIER, ADMINISTRATOR, ET AL., RESPONDENTS.
The opinion of the court was delivered by: Simandle, District Judge
HONORABLE JEROME B. SIMANDLE
This matter is before the court on petitioner Robert Deavers' petition for writ of habeas corpus, pursuant to 28 U.S.C. 2254. Deavers claims that the state sentence he is presently serving is "illegal." Because the court finds that Deavers' sentence is "illegal" only in the sense that the sentencing court imposed an indeterminate term not to exceed twenty years under a statute that provides for an indeterminate term not to exceed thirty years, the court denies his petition for writ of habeas corpus.
Deavers is presently serving an indeterminate term not to exceed twenty years at the Adult Diagnostic and Treatment Center at Avenel, New Jersey ("Avenel") imposed by the Superior Court of New Jersey, Law Division, Camden County, on January 16, 1981, pursuant to a July 21, 1980 plea agreement between Deavers and the Office of the Camden County Prosecutor.
The issue in this case is whether the plea agreement contemplated a sentence under the New Jersey Sex Offenders Act, N.J.S.A. 2A:164-3 et seq., or the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 et seq. Although Deavers committed his admitted crime of forcible rape on May 25, 1979, he did not enter his guilty plea to that offense until July 21, 1980 -- after the September 1, 1979 effective date of the Code of Criminal Justice. Thus, under N.J.S.A. 2C:1-1c(2), Deavers could have consented to the imposition of a Title 2A sentence under the Sex Offenders Act sentence instead of a Title 2C under the Code of Criminal Justice. Deavers contends that he did not consent to a Title 2A sentence; respondents contend that he did. The distinction is significant because defendants sentenced under Title 2C are eligible for good time and work credits, but defendants sentenced under Title 2A are not. See State v. Fernandez, 209 N.J. Super. 37 (App. Div. 1986); Savad v. Department of Corrections, 178 N.J. Super. 386 (App. Div. 1981). Deavers, who has now served more than eighteen years at Avenel, claims that he would have been released after thirteen or fourteen years if he were eligible for good time and work credits.
The precise terms of the plea agreement are not entirely clear because the agreement was never reduced to writing in a single document endorsed by both Deavers and the Office of the Camden County Prosecutor. According to a typewritten form entitled "Statement By Defendant (For Use In Counties Permitting Disposition Of Multiple Indictments In One Form)" that was filled out by hand and signed by Deavers and his attorney on July 21, 1980, Deavers agreed to enter a plea of guilty to Count One of Camden County Indictment No. 268-79, charging him with carnal knowledge forcibly and against the victim's will in violation of N.J.S.A. 2A:138-1, in exchange for the dismissal of several related charges and the recommendation of a sentence described by Deavers and/or his attorney as follows: "Incarceration in New Jersey State Prison for a maximum of 20 years unless under Sex Offenders Act not to exceed 20 years, all concurrent with time served for prior offenses." (Ra2.)
During Deavers' retraxit hearing before the Honorable Warren C. Douglas, J.S.C., on July 21, 1980, however, the prosecutor described the plea agreement as follows:
MR. FRIEDMAN: This is State of New Jersey vs. Robert Deavers, under indictment 268-79. Your Honor, this is a six count indictment.
There is also another indictment, 826-79, which is a one count indictment.
In return, your Honor, for a guilty plea to count one of indictment 268-79, which alleges rape, the state will recommend dismissal of counts 2 through six of that indictment, along with recommending dismissal of indictment 826-79.
The indictments are pretty much in conjunctions with each other, your Honor.
The state will recommend a sentence, your Honor, of twenty years to New Jersey State Prison, unless the finding comes back Mr. Deavers is compulsive and repetitive, in which case this would be to the Adult Diagnostic Unit at Avenel, for a period.
In either case, the recommendation is it is concurrent to the sentence he is presently serving, on which he is expected to be sentenced prior to this sentencing in Gloucester County. He is pending a sentence in Gloucester County.
THE COURT: That sentence will take place before this?
MR. FRIEDMAN: We expect it to, yes. I believe that covers the charges, your Honor. It's twenty years to be concurrent in State Prison, otherwise indeterminate to max concurrent at Avenel.
That's the state's recommendation. (Transcript of July 21, 1980 Retraxit Hearing at 2:1 - 3:9.)
Significantly, Deavers' attorney acknowledged that "the prosecutor correctly stated the plea arrangement entered by and between the parties." (Id. at 3:10-15.)
Although the prosecutor did not specifically refer to either Title 2A or Title 2C when explaining the plea agreement to the court at the retraxit hearing, Deavers acknowledged that he was pleading guilty to a crime charged under Title 2A and would be sentenced accordingly:
THE COURT: Mr. Deavers, I had handed to me a statement entitled Statement by Defendant which sets forth various charges against you, and the offenses have been explained to you, and the total sentence which could be imposed and also the sentenced proposed to be imposed under your plea, and an additional statement which indicates what the equivalent sentence would have been under the new code, if you were sentenced under the equivalent charge under the new code.
Each of these appear to have your signature on them. Did you sign these?
THE DEFENDANT: Yes, I did.
THE COURT: How old are you, Mr. Deavers?
THE DEFENDANT: Thirty.
THE COURT: How far did you go in school?
THE DEFENDANT: College educated.
THE COURT: Did you read these before you signed them?
THE DEFENDANT: Yes, thoroughly.
THE COURT: Did you discuss them with Mr. Sanderson?
THE DEFENDANT: Yes, I have.
THE COURT: Any questions you had concerning what they mean or as to what the purpose of them is, did he explain to you?
THE DEFENDANT: No, there isn't.
THE COURT: Pardon me?
THE DEFENDANT: I quite understand them.
THE COURT: Having read them and understood them, you signed these voluntarily?
THE DEFENDANT: Yes, I have. (Id. at 4:6 - 5:14.)
Deavers also acknowledged that the plea agreement contemplated an indeterminate term at Avenel if he was categorized as a sex offender upon examination:
THE COURT: Do you understand if at the time of sentence I am able to approve the agreement you reached with the prosecutor, I will sentence you in accordance with the agreement either to state prison or to Avenel, to state prison for the terms specific of twenty years, or to Avenel for an indeterminate term, but if at the time of sentencing I think a more severe sentence should be imposed than provided for, I would permit you to withdraw your guilty pleas as if not entered, and enter not guilty pleas, and the guilty plea won't be used against you after that?
THE DEFENDANT: Yes, I understand. (Id. at 7:10-24.)
Similarly, during his sentencing hearing before the Honorable Mary Ellen Talbott, J.S.C., on January 16, 1981, Deavers' attorney acknowledged that Deavers had consented to the imposition of a sentence under Title 2A:
MR. SANDERSON: I would, your Honor. Of course, there is a plea agreement in this situation and Mr. Deavers has been classified under the Sex Offenders Act as requiring treatment as opposed to an incarceration for purpose of punishment.
My only concern, your Honor, in speaking very casually with your honor at aide bar before is that your Honor had an opportunity to study this file. Your honor made some mention about setting some minimum of time before he would be eligible for parole.
THE COURT: This is a sentencing under 2A, isn't it?
MR. SANDERSON: Yes. And I have done some investigation of it and I would suggest to the court that when we're dealing with a lascivious sex offender under the Sex Offenders Act that would be an illegal sentence because it would couch itself in terms of punishment in opposition of having someone decide that this defendant is safe to return to society. I only make that comment in case your Honor was considering that. (Transcript of January 16, 1981 Sentencing Hearing at 2:15 - 3:16.)
The sentencing court then appears to have proceeded to sentence Deavers under Title 2A:
THE COURT: I have read your Presentence Report as well as the Avenel Report and I have from our sentencing guidelines under the 2A Act that 86 percent of people in your situation do go to some type of incarceration and I am satisfied that the plea bargain is a reasonable one. I do think that you should be aware of what the new Penal Code provides and I am sure Mr. Sanderson has told you, of course, all the things he says about cure and treatment and not punishment and the cases that he cites pertain to the old Act because under the new Act you could be sentenced to a term of parole, you could be sentenced to an extended term so incorporated in the Act is not only the idea of treatment and rehabilitation, but there is also the effect of deterrence. On the accusation -- on Indictment 268-79, on the plea of rape, I am going to sentence you to an indeterminate term at the Adult Diagnostic Center at Avenel for a period not to exceed 20 years. I will dismiss Counts Two through Six on the recommendation of the State and will also dismiss Indictment 826-79. You have 45 days in which to appeal this sentence. If you wish to appeal it and cannot afford and attorney, one will be appointed to represent you. (Id. at 12:4 - 13:6.)
Whatever the transcript of the sentencing hearing may reflect, the Judgment of Conviction and Order for Commitment and attached Statement of Reasons the sentencing court entered on January 16, 1981 creates confusion about the nature of the sentence the court actually imposed. Although she specifically found that Deavers "falls within the purview of the Sex Offender Act" and imposed "an indeterminate term not to exceed 20 years at Avenel," Judge Talbot also expressly stated that Deavers was "sentenced under the New Penal Code which provides primarily for punishment and deterrence of the defendant and secondly therapy and treatment of the defendant." (Ra8.) The acknowledgment that Deavers had been classified under the Sex Offenders Act and the decision to impose an indeterminate term appear are consistent with a sentence under Title 2A, but the statement that Deavers was "sentenced under the New Penal Code" is clearly a reference to Title 2C.
Despite having been advised of his right to appeal the sentence imposed by the sentencing court, Deavers did not file a direct appeal of his sentence. Eight years later, however, Deavers moved under Rule 3:21-10(b)(4) to change his sentence from an indeterminate term not to exceed 20 years under Title 2A to an equivalent sentence under Title 2C. On October 13, 1989, the Honorable Raymond F. Drozdowski, J.S.C., denied Deavers' motion, finding upon review of the transcripts of the retraxit hearing and the sentencing hearing that Deavers "made a knowledgeable election [to be sentenced under Title 2A instead of Title 2C] at the time he pleaded and at the time of sentence." (Transcript of October 13, 1989 Oral Argument at 17:22 - 19:20.) By Order dated July 11, 1990, the Superior Court of New Jersey, Appellate Division, affirmed Judge Drozdowski's ruling. (Ra12.) Deavers did not seek further review in the Supreme Court of New Jersey or file a petition for writ of habeas corpus in this court.
Five years later, Deavers challenged his sentence once again, moving to clarify and/or correct his sentence under Rule 3:22-12. After hearing oral argument on January 17, 1997, the Honorable Samuel D. Natal, J.S.C. denied Deavers' application to be resentenced under Title 2C in an Order dated February 10, 1997, finding that "this issue had already been raised and previously considered on the merits [by Judge Drozdowski], barring additional review pursuant to R. 3:22-5." (Ra16.) *fn1 Judge Natal also denied the State's cross-application to resentence Deavers to an indeterminate term not to exceed 30 years, finding that "even though the original sentence imposed of an indeterminate term not to exceed twenty (20) years at Avenel is an illegal sentence, it shall remain the sentence to be served by defendant" because "to resentence defendant to an increase in sentence after seventeen (17) years of the twenty (20) year sentence previously imposed was served would violate defendant's reasonable expectations of the benefit he would receive as a result of the plea agreement entered into." (Id.) The Appellate Division affirmed Judge's Natal's ruling by Order dated May 22, 1998. (Ra19.) The Supreme Court of New Jersey denied Deavers' petition for certification by Order dated October 27, 1998. (Ra22.)
On September 28, 1998, Deavers filed a third challenge to his sentence in the Superior Court in Camden County, arguing that the sentencing court committed "plain error" in sentencing him to an indeterminate term instead of a determinate term. (Ra23.) That petition for post-conviction relief is still pending. Deavers filed the instant petition for writ of habeas corpus in this court on December 8, 1998.
Under 28 U.S.C. § 2254(a), a district court "has jurisdiction to review both the validity and the length of confinement of a state court sentence whenever a constitutional defect in such sentence is properly asserted." Toulson v. Beyer, 827 F. Supp. 307, 309 (D.N.J. 1993), aff'd, 30 F.3d 1488 (3d Cir. 1994). "The standard of review of such state sentences, however, is very limited." Id. (citing Grecco v. O'Lone, 661 F. Supp. 408, 415 (D.N.J. 1987)). "`So long as the punishment imposed is not based upon any proscribed federal grounds, such as being cruel and unusual, racially or ethnically motivated, or enhanced by indigency, the penalties for violation of state statutes are matters of state concern.'" Id. (quoting Grecco, 661 F. Supp. at 415).
In the present case, Deavers' claim that he is presently serving an "illegal" sentence does not rest upon any proscribed federal ground. Indeed, Deavers appears to rely exclusively upon Judge Natal's characterization of his sentence as "illegal" notwithstanding Judge Natal's recognition that Deavers' sentence is "illegal" only in the sense that he an indeterminate sentence not to exceed twenty years was imposed under a statute that provides for an indeterminate sentence not to exceed thirty years. Judge Natal denied the State's motion to "correct" the "illegality" by resentencing Deavers to an indeterminate term not to exceed thirty years. Thus, to the extent Deavers' sentence is "illegal," he will benefit from the illegality by avoiding up to ten additional years at Avenel.
There is nothing "illegal" about Deavers' having been sentenced under Title 2A instead of under Title 2C. Judge Drozdowski determined on Deavers' first petition for post-conviction relief in the Superior Court that Deavers had made a knowing and intelligent decision to exercise his right to be sentenced under Title 2A rather than under Title 2C. Judge Drozdowski's decision was affirmed by the Appellate Division. Deavers has not demonstrated that Judge Drozdowski's decision or the Appellate Division's affirmance of it are "contrary to" or an "unreasonable application of" well-established United States Supreme Court precedent; thus, this court must defer to Judge Drozdowski's factual and legal determinations. See 28 U.S.C. § 2254(d); see also Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 887-91 (3d Cir. 1999)(discussing standard of review under § 2254(d)).
As a prisoner sentenced under Title 2A, Deavers is ineligible for good time and work credits that he would have been entitled to as a prisoner sentenced under Title 2C, but that fact does not offend any federal constitutional right. See Prevard v. Fauver, Civil Action No. 91-1217 (WHW), slip op. at 3-6 (D.N.J. April 30, 1999)(finding no violation of Fifth and/or Fourteenth Amendment's equal protection or due process clauses, Eighth Amendment's cruel and unusual punishment clause, or Article I, Section 9's ex post facto clause arising from denial of commutation credits to Title 2A prisoners). Deavers bargained for a twenty year Title 2A sentence and he got one. This court perceives no injustice in his serving every last day of it.
For these reasons, the court denies Deavers' petition for a writ of habeas corpus. The accompanying Order is entered.
JEROME B. SIMANDLE U.S. District Judge
Dated: July 7, 1999
THIS MATTER having come before the court on petitioner Robert Deavers' petition for writ of habeas corpus, pursuant to 28 U.S.C. 2254, and the court having considered the submissions of the parties, and for the reasons set forth in the accompanying Opinion;
IT IS on this 7th day of July, 1999, hereby ORDERED that Deavers' petition for writ of habeas corpus is DENIED; and
IT IS FURTHER ORDERED that no certificate of appealability under 28 U.S.C. § 2253(c)(1) shall issue, Deavers having failed to make a substantial showing of the denial of a constitutional right.
JEROME B. SIMANDLE U.S. District Judge