On appeal from the Superior Court of New Jersey, Law Division, Bergen County, 00-06-1203-I.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, C.S. Fisher, and Kestin.
Following a jury trial, defendant originally received a fifteen-year sentence to the custody of the Department of Corrections with an 85% parole ineligibility term under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for first-degree aggravated sexual assault. He received a concurrent four-year term on a conviction for endangering the welfare of a minor, N.J.S.A. 2C:24-4a, and a consecutive seven-year term for burglary, N.J.S.A. 2C:18-2. On defendant's direct appeal, his convictions were affirmed, but we found "there was no acceptable basis for the consecutive sentence [for] burglary," vacated that sentence and remanded for resentencing. With respect to the remand we said:
At such sentencing, the court is free to reevaluate its sentence on count two, which seems to have been tailored in contemplation of the consecutive burglary sentence. In that regard, we have held that where a defendant successfully challenges a sentence on appeal, "the component parts of an aggregate sentence may be restructured upon resentencing without violating the defendant's due process or double jeopardy rights," State v. Espino, 264 N.J. Super. 62 (App. Div. 1993), "so long as the aggregate term of imprisonment is not increased." Ibid. (quoting State v. Bowen, 224 N.J. Super. 263, 276 (App. Div. 1988)). As noted, the court's findings would have justified a sentence above the presumptive on count two. We do not suggest, much less require, that the count two sentence be changed, particularly given the applicability of NERA. That decision rests within the sound judgment of the resentencing court.
On the remand, defendant received a seventeen-year sentence in the custody of the Department of Corrections with the 85% NERA ineligibility term for the aggravated sexual assault, and concurrent terms on the other convictions. The ineligibility term on the new sentence is approximately one-and-three- quarters-years longer than the original NERA term. The judge relied on defendant's prior New York conditional discharges as the basis for finding aggravating factors to increase the sentence from the presumptive term of 15 years to the 17-year term defendant received on resentencing.
On defendant's subsequent appeal, we again remanded for resentencing because of the decision in State v. Natale, 184 N.J. 458 (2005); and, in light of the judge's findings regarding the aggravating factors, we directed the judge to consider whether the defendant's record, which consisted of conditional discharges in New York, could be deemed to include "prior convictions" for purposes of sentence review because of the "prior conviction" exception to the requirements of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004). See also State v. Thomas, 188 N.J. 137, 153 (2006) ("judicial fact-finding must be limited to the finding of the existence of [a] prior conviction"). On the second remand the judge reimposed the same 17-year sentence with an 85% parole- ineligibility term under NERA.
On this appeal, defendant argues that the judge knew of the three New York conditional discharges when he first sentenced defendant (although their relevance was less significant before Natale and the vacation of the consecutive sentence after which he increased the former presumptive term), and that defendant was denied due process because he was penalized for taking his appeal which resulted in a sentence increase. With respect to the latter, he argues "the trial court violated North Carolina v. Pearce by increasing the defendant's sentence for aggravated sexual assault." North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L.Ed. 2d 656 (1969), is a due process case which held that a sentence may not be increased after a successful appeal and retrial unless based on facts found to have occurred since the first sentence was imposed. In addition to due process factors, the double jeopardy doctrine must be considered.
Generally, double jeopardy attaches once a defendant begins to serve a prison term or the sentence is partially executed. See State v. Ryan, 86 N.J. 1, 429 A.2d 332 (1981). Therefore, a defendant who has begun to serve a sentence ordinarily cannot be resentenced to an increased or enhanced term. See, e.g., State v. Espino, 264 N.J. Super. 62, 67, 624 A.2d 27 (App. Div. 1993). However, a defendant who appeals an underlying conviction along with the sentence imposed has no legitimate expectation of finality in either. State v. Haliski, 140 N.J. 1, 21, 656 A.2d 1246 (1995) (citing State v. Rodriguez, 97 N.J. 263, 478 A.2d 408 (1984)). Thus, if a defendant's appeal results in a merger of two or more offenses, the defendant can be resentenced without violating the double jeopardy clause of the federal and state constitutions, as long as the new sentence in the aggregate is not in excess of the originally imposed sentence. Rodriguez, supra, 97 N.J. at 277, 478 A.2d 408.
In Rodriguez, the defendant was convicted of several crimes including felony murder and robbery, for which he was given separate sentences. On defendant's appeal, the felony murder and robbery charges were merged, and the Supreme Court held that double jeopardy principles did not preclude the resentencing of the defendant after he began to serve his sentence. Id. at 265-66, 478 A.2d 408. The Supreme Court noted that because the defendant had appealed the substantive convictions underlying his sentence, he could have no legitimate expectation of finality regarding that sentence. Id. at 271, 478 A.2d 408. The Court further noted that the situation was considerably different from the case in which defendant's original convictions remained undisturbed and only the sentence was altered on appeal. Ibid. Compare State v. Matlock, 49 N.J. 491, 231 A.2d 369, cert. denied, 389 U.S. 1009, 88 S.Ct. 572, 19 L.Ed. 2d 606 (1967), where the defendant did not successfully attack his underlying convictions, but rather demonstrated that his sentence was "in excess of the statutory maximum." Rodriguez, supra, 97 N.J. at 272, 478 A.2d 408 (citing Matlock, supra, 49 N.J. at 501-02, 231 A.2d 369). The Rodriguez court did "not perceive any unfairness to defendant if he were resentenced . . . to a term not in excess of that originally imposed." Id. at 273, 478 A.2d 408 (citations omitted). As stated by Justice Handler, Rodriguez "could be resentenced without offending constitutional principles of double jeopardy providing that any new sentence was in accordance with the substantive punishment standards under the New Jersey code of criminal justice and not in excess of the sentence originally imposed." Id. at 277, 478 A.2d 408. See also State v. Crouch, 225 N.J. Super. 100, 107-110, 541 A.2d 1092 (App. Div. 1988) (upholding consecutive sentence for the convictions of unmerged assault and robbery after a post-conviction relief court deemed the robbery conviction to constitute second, not first, degree crime).
The principles announced in Rodriguez were extended to include the situation where a defendant successfully challenged the imposition of a consecutive sentence. Espino, supra, 264 N.J. Super. at 68-69, 624 A.2d 27. The defendant's only legitimate expectation of finality was deemed to preclude ...