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 ...