On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-04-0459.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Sapp-Peterson.
In this appeal, we consider whether a sentence imposed following our earlier remand was excessive or unlawful because the judge imposed consecutive prison terms when those same terms were previously made concurrent. Because the aggregate sentence is no greater than that previously imposed, and because the sentence is not otherwise excessive, we affirm.
This matter came before us on an oral argument sentencing calendar without the benefit of briefs.*fn1 The record reveals that defendant Steven Goode was sentenced on July 14, 1997 to a thirty-year prison term for the aggravated assault on his former girlfriend L.W., uttering terroristic threats against L.W. and their then four-year-old son, and kidnapping or attempted kidnapping of L.W. and the child.
Thereafter, L.W. reestablished contact with defendant and visited him in prison on approximately fifty to sixty occasions. When the relationship again soured, defendant began a series of correspondence; he wrote eleven letters to L.W., and two letters to their son, threatening L.W.'s life. Following a trial, defendant was convicted of: six counts of third-degree uttering terroristic threats to kill, N.J.S.A. 2C:12-3(b) (counts one, two, three, five, seven and eight); six counts of fourth-degree harassment, N.J.S.A. 2C:33-4 (counts four, six, nine, ten, eleven and thirteen); and one count of third-degree stalking, N.J.S.A. 2C:12-10(e) (count fourteen). Defendant was sentenced to the following prisons terms, which were all ordered to commence upon defendant's completion of his 1997 prison sentence: five-year concurrent prison terms, with a two-and-a-half year period of parole ineligibility, on each of the terroristic threat to kill convictions; concurrent eighteen-month prison terms on each of the harassment convictions; and an extended ten-year prison term, with a five-year period of parole ineligibility, on the stalking conviction, to run consecutively to the terroristic threats and harassment terms. In other words, the judge imposed an aggregate fifteen-year prison term subject to seven and one-half years of parole ineligibility, to be served upon completion of the 1997 sentence.
Defendant appealed. We affirmed with the exception that we remanded for resentencing because we held the stalking conviction should have merged with the terroristic threats convictions for sentencing purposes. State v. Goode, No. A-4664-04 (App. Div. May 11, 2007) (slip op. at 19-21).
A different judge resentenced defendant. After hearing the argument of counsel, the judge merged the stalking conviction with the terroristic threat convictions as mandated. The judge also ordered that the prison terms imposed in this matter would not commence until completion of the 1997 sentence defendant was then serving, as previously ordered. The judge then imposed an extended ten-year prison term, with a five-year period of parole ineligibility, on the terroristic threat conviction on count one, and a five-year prison term, subject to a two-and-one-half-year period of parole ineligibility, on the terroristic threat conviction on count two; the judge ordered the terms imposed on counts one and two to run consecutively. On the remaining terroristic threat convictions, the judge imposed five-year prison terms with two-and-one-half-year periods of parole ineligibility to run concurrently with count two and with each other. And the judge sentenced defendant to eighteen-month prison terms on each of the harassment convictions to run concurrently with each other and the other terms then imposed. As a result, in the aggregate -- as before -- defendant received a fifteen-year prison term with a seven-and-one-half-year period of parole ineligibility.
Defendant again appealed, contesting the legitimacy, and urging the excessiveness, of the sentence.
We start with the premise that individuals are constitutionally protected from multiple punishments on a single offense. State v. Rodriguez, 97 N.J. 263, 268 (1984); State v. Ryan, 86 N.J. 1, 10, cert. denied, 454 U.S. 880, 102 S.Ct. 363, 70 L.Ed. 2d 190 (1981). In that regard, "jeopardy attaches once a defendant commences serving a prison term." State v. Espino, 264 N.J. Super. 62, 67-68 (App. Div. 1993) (citing Ryan, supra, 86 N.J. at 10). Therefore, a defendant who has begun to serve a sentence ordinarily cannot be resentenced to an increased term. State v. Young, 379 N.J. Super. 498, 505 (App. Div. 2005).
However, in appealing a sentence, a defendant has no legitimate expectation in its finality. Rodriguez, supra, 97 N.J. at 277. As we have explained:
[T]he defendant should be aware that the trial court in molding a consecutive sentence 'will normally make an overall evaluation for the several offenses involved.' . . . Consequently, we conclude that a defendant should reasonably expect that if a sentence which is to be served consecutively to other sentences imposed for the same criminal episode is found to be legally deficient, the trial court may reconsider other parts of the overall sentence to assure that defendant receives a proper punishment. [Espino, supra, 264 N.J. Super. 68-69 (citations and footnote omitted).]
Accordingly, "when the conviction of one or more counts is vacated on appeal, the sentencing court should be able to review what remains of its original sentence plan and reconstruct the sentence to ensure that the punishment fits both the crime and the criminal." Young, supra, 379 N.J. Super. at 508. If the appeal results in a merger of two or more offenses, the defendant can be legally resentenced to the same aggregate prison ...