April 28, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
STEVEN M. GOODE, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 10, 2010
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 term so long as the aggregate does not exceed the sentence originally imposed. Rodriguez, supra, 97 N.J. at 277.
For example, the defendant in Espino received an aggregate twenty-year term, with ten years of parole ineligibility. 264 N.J. Super. at 64-65. In initially reviewing that sentence, we concluded that the imposition of consecutive terms on the two most serious crimes was erroneous and remanded for resentencing. Ibid. On remand, the judge imposed an aggregate term of fifteen years with a parole disqualifier of seven and one-half years. Id. at 66. In defendant's subsequent appeal, we considered whether due process and double jeopardy principles were violated because the judge had made one count run consecutive to the other convictions, even though the judge had originally ordered those terms to run concurrently. Ibid. Applying "the essential rationale of Rodriguez" to these facts, we affirmed, holding that "when a defendant successfully challenges a conviction or 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." Id. at 68-69 (citations omitted).
In this case, there is no indication that the resentencing judge erred in fashioning defendant's sentence. Defendant had not yet commenced serving the sentence, since it would not begin until he had completed his sentence on the 1997 conviction, and the aggregate of the restructured sentence was not greater than the original sentence.
In addition, the record reveals that in resentencing defendant, the judge considered and independently weighed all relevant circumstances and factors, including the principles of State v. Yarbough, 100 N.J. 627 (1985), before imposing consecutive terms on counts one and two. We, thus, find no constitutional impediment in the sentence in question and conclude there is also no merit in defendant's argument that the aggregate prison term was excessive.
All other arguments asserted by defendant are of insufficient merit to warrant discussion in a written opinion.