(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
[This is a companion case to State v. Jerry Black, A-53-97, also decided today.]
Argued November 17, 1997 -- Decided May 14, 1998
STEIN, J., writing for a unanimous Court.
This appeal presents two issues for resolution. The first is whether Eisenman's criminal prosecution
for absconding from parole is barred by principles of double jeopardy and fundamental fairness because of
the Parole Board's prior revocation of his parole for substantially the same conduct. The second question is
whether Eisenman, who was sentenced on the same date for multiple auto thefts, could receive consecutive
suspensions of driving privileges for each theft pursuant to N.J.S.A. 2C:20-2.1.
In September 1987, Eisenman received a five-year sentence for theft and burglary. Two and one-half months later, he received a five-year sentence for receiving stolen property. In November 1988,
Eisenman was sentenced to a four-year custodial term for theft. Those sentences were ordered to run
concurrently. Eisenman was paroled in July 1990, but was returned to prison for committing a new offense
while on supervised release.
In February 1993, Eisenman was re-paroled on the condition that he remain at a substance abuse
treatment center in Atlantic City for a minimum period of one year. Eisenman left that facility without
authorization on March 26, 1993, and thereafter had no contact with parole authorities until his arrest on
May 12, 1993.
On April 1, 1993, Eisenman was classified as an absconder and a parole warrant was issued for his
arrest. That warrant was executed on May 13, 1993, the day after Eisenman's arrest. In September 1993,
the Parole Board issued a Notice of Decision revoking Eisenman's parole on the basis that he had absconded
from supervision and had not stayed in drug counseling, and ordered him to serve nine months in prison on
the parole violation, retroactive to May 13, 1993.
In July 1994, Eisenman pleaded guilty to absconding from parole and admitted to several crimes
committed both prior to his May 1993 arrest and subsequent to his re-release in February 1994. In April
1993, Eisenman stole a Chrysler van from a residential garage in Spring Lake. The next month, while
Eisenman was driving the van, a police officer attempted to pull him over for speeding. Eisenman pulled
over, exited the vehicle, and while fleeing, stole an Isuzu Trooper from a residential driveway. Eisenman was
driving the stolen Isuzu on May 12, 1993, when he was pulled over on the Garden State Parkway. A search
revealed a pipe containing trace amounts of marijuana.
Eisenman was re-released on February 24, 1994, after posting bail on the pending absconding
charge. Approximately 15 days later, he stole a Mercedes Benz and a Jeep Cherokee from a driveway in
Deal, New Jersey. On March 16, Eisenman drove the Jeep to the Monmouth County Courthouse for a court
appearance. He was arrested at the Courthouse.
Eisenman was charged pursuant to three separate indictments with a host of crimes, including absconding and five counts of auto theft. He pleaded guilty to absconding from parole, one count of second-degree auto theft, two counts of third-degree auto theft, and a disorderly persons charge for possession of marijuana, among other crimes. Eisenman's presentence report indicates that he had fifteen prior theft
convictions, juvenile and adult, all of which involved motor vehicle theft.
The court sentenced Eisenman on August 26, 1994, to custodial terms in accordance with the plea
agreement. He received an aggregate custodial sentence of eleven years. Eisenman also received
consecutive, ten-year driver's license suspensions on each of the three charges of auto theft, and six months
suspension on the drug charge, for an aggregate license suspension of thirty years and six months.
The Appellate Division affirmed Eisenman's convictions and sentences in an unpublished per curiam
opinion, with one minor exception that is not relevant here. The Supreme Court granted his petition for
certification.
HELD: Prosecution for absconding from parole after revocation of parole does not violate the constitutional
protection against double jeopardy or principles of fundamental fairness. Consecutive driver's license
suspensions are permitted when a defendant is sentenced on the same date for multiple auto thefts.
1. The reasoning of the companion case of State v. Jerry Black, ___ N.J. ___, (1998), that parole revocation
cannot be viewed as punishment triggering the protections against double jeopardy, applies with equal force
to this appeal. (pp. 6-11)
2. Eisenman argues that the trial court erred in ordering his driver's license suspensions to run
consecutively. N.J.S.A. 2C:20-2.1 provides that a person convicted of auto theft lose his driver's license for
one year for a first offense; two years for a second offense; and 10 years for a third or subsequent offense.
This statute was enacted in 1991, as part of a package of bills designed to increase penalties for motor
vehicle theft. The legislative history clearly demonstrates the Legislature's intent to impose harsh penalties
for auto theft, as well as to impose particularly severe punishment on career car thieves. The interpretation
urged by Eisenman would dilute the evident retributive and deterrent goals of the Legislature. The
sentencing court should make the discretionary determination whether driver's license suspensions for
multiple auto thefts are to be served concurrently or consecutively, with the reasons stated separately in the
sentencing decision. Because the Law Division here failed to articulate its reasons for imposing consecutive
suspensions, the matter is remanded for reconsideration and for a statement of reasons underlying the
determination. (pp. 11-22)
The judgment of the Appellate Division is AFFIRMED, as MODIFIED, and the matter is
REMANDED to the Law Division.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, and
COLEMAN join in JUSTICE STEIN's opinion.
SUPREME COURT OF NEW JERSEY
A-
75 September Term 1997
STATE OF NEW JERSEY,
Plaintiff-Respondent,
V.
DAVID EISENMAN,
Defendant-Appellant.
Argued November 17, 1997 -- Decided May 14, 1998
On certification to the Superior Court,
Appellate Division.
Susan Brody, Assistant Deputy Public
Defender, argued the cause for appellant
(Ivelisse Torres, Public Defender, attorney;
Ms. Brody and Barbara A. Hedeen, Assistant
Deputy Public Defender, on the briefs).
Paul H. Heinzel, Deputy Attorney General,
argued the cause for respondent (Peter
Verniero, Attorney General of New Jersey,
attorney).
The opinion of the Court was delivered by
STEIN, J.
This appeal presents two issues for resolution. The first,
whether defendant's criminal prosecution for absconding from
parole is barred by principles of double jeopardy and fundamental
fairness because of the Parole Board's prior revocation of his
parole for substantially the same conduct, is virtually
indistinguishable from the issue raised and resolved in State v.
Black, ___ N.J. ___, ___ - ___ (1998)(slip op. at 16-18, 21-22),
also decided today. The second question is whether the trial
court, which sentenced defendant on the same date for multiple
auto thefts, properly ordered consecutive suspensions of driving
privileges for each theft pursuant to N.J.S.A. 2C:20-2.1.
he had absconded from supervision and had not stayed in drug
counseling, and ordering him to serve nine months in prison on
the parole violation, retroactive to May 13, 1993.
In July 1994, defendant pleaded guilty to absconding from
parole, N.J.S.A. 2C:29-5b, and admitted to several crimes
committed both prior to his May 1993 arrest and subsequent to his
re-release in February 1994. In April 1993, defendant stole a
1983 Chrysler van from a residential garage in Spring Lake, New
Jersey. He explained that he walked up the driveway, entered the
unlocked garage with the intent to steal a car, and discovered
the unlocked van with the keys in the ignition. Defendant
started the van, opened the garage bay door and drove away. The
next month, defendant was driving the van through Fair Haven when
a police officer attempted to pull him over for speeding.
Defendant pulled over, exited the vehicle and fled. As he ran,
defendant was checking parked cars in the hope of securing a
getaway vehicle. After several minutes, he spotted a 1992 Isuzu
Trooper in a residential driveway with the keys in the ignition.
Defendant entered and started the vehicle and drove away.
Defendant was driving the stolen Isuzu on May 12, 1993, when he
was pulled over on the Garden State Parkway by a New Jersey State
Trooper. Conducting a roadside search of the vehicle, the State
Trooper discovered a marijuana pipe that was later determined to
contain trace amounts of marijuana. Defendant admitted to the
Trooper that the pipe belonged to him.
Defendant was re-released on February 24, 1994, after
posting bail on the pending absconding charge. Approximately 15
days later, defendant walked up a driveway in Deal, New Jersey,
and stole both a 1992 Mercedes Benz and a 1993 Jeep Cherokee,
both of which had been left unlocked with the keys in the
ignition. He took the Mercedes first, dropped it off at a nearby
apartment complex, and then returned on foot and took the Jeep.
On March 16, defendant drove the Jeep to the Monmouth County
Courthouse for a court appearance. Defendant was arrested at the
courthouse, where he relinquished the keys to both the Jeep and
the Mercedes and informed the police of the location of both
vehicles. Police recovered both the Mercedes and the Jeep, but
ski boots valued at $700 were missing from one of the vehicles.
Defendant was charged pursuant to three separate indictments
with one count of third-degree absconding from parole, three
counts of third-degree burglary, one count of second-degree auto
theft, four counts of third-degree auto theft, three counts of
third-degree receiving stolen property, and single counts of
fourth-degree hindering apprehension, fourth-degree eluding, and
third-degree attempted escape. Defendant pleaded guilty to
absconding from parole, one count of third-degree burglary, two
counts of third-degree auto theft, one count of second-degree
auto theft, and a disorderly persons charge of possession of a
controlled dangerous substance. The remaining charges were
dismissed.
The court sentenced defendant on August 26, 1994, to custodial terms in accordance with the plea agreement. On the charge of third-degree absconding from parole, N.J.S.A. 2C:29-5b, the court imposed a sentence of five years in prison to be served concurrently with his other sentences. On the charge of second-degree theft of the Mercedes and Jeep, together valued in excess of $75,000, N.J.S.A. 2C:20-3a, the court imposed a seven-year term of incarceration and a ten-year driver's license suspension. On the charges of third-degree burglary at the garage in Spring Lake, N.J.S.A. 2C:18-2, and the third-degree thefts of the Chrysler van and the Isuzu Trooper, N.J.S.A. 2C:20-3a, the court imposed a four-year custodial term to run consecutively to the seven-year term for the theft of the Mercedes and the Jeep, and two ten-year driver's license suspensions. On the disorderly persons offense of possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(4), the court ordered a six-month custodial term and a six-month driver's license suspension. All of the driver's license suspensions were ordered to run consecutively, resulting in an aggregate license suspension of thirty years and six months. Defendant's aggregate custodial sentence was eleven years. In addition, defendant was ordered to pay a mandatory fine of $1000 on each of the three charges of auto theft, restitution for the missing ski boots of $700, $300 in Violent Crimes Compensation Board assessments, $450 in Safe Neighborhood Service Fund assessments, a $750 Drug Enforcement Demand Reduction penalty, and a $50 laboratory fee for the
testing on the marijuana pipe. The $1000 fine and ten-year
suspension of driving privileges on each auto-theft conviction
were imposed by the court pursuant to N.J.S.A. 2C:20-2.1a(3),
which provides for those penalties for persons convicted of a
third or subsequent auto-theft offense. Defendant's presentence
report indicates that he had fifteen prior theft convictions,
juvenile and adult, all of which involved motor vehicle theft.
The Appellate Division affirmed defendant's convictions and
sentences in an unpublished per curiam opinion, with the
exception of a remand for a hearing on the $700 restitution
award, for correction of the Safe Neighborhood Service Fund
assessment, and for correction of the judgments of conviction
regarding the license suspensions to conform to the oral
sentence. We granted defendant's petition for certification on
the question whether defendant's prosecution for absconding from
parole violated the constitutional protection against double
jeopardy and principles of fundamental fairness, and the question
whether N.J.S.A. 2C:20-2.1 authorizes consecutive driver's
license suspensions when a defendant is sentenced on the same
date for multiple auto thefts.
150 N.J. 29 (1997).
penalties imposed in civil and administrative proceedings." In
determining whether a civil or administrative sanction
constitutes "punishment" for double jeopardy purposes, this Court
has applied the standard articulated by the United States Supreme
Court in United States v. Halper,
490 U.S. 435, 446-448,
109 S.
Ct. 1892, 1900-02,
104 L. Ed.2d 487, 500-02 (1989). See State
v. Womack,
145 N.J. 576, 583, cert. denied, ___ U.S. ___,
117 S.
Ct. 517,
136 L. Ed.2d 405 (1996); Doe v. Poritz,
142 N.J. 1, 46
(1995). In Womack we held that a sanction may be determined to
be punitive, and thus implicate constitutional protections
against double jeopardy, if either the law pursuant to which the
sanction was imposed was intended by the legislature to impose
punishment or the impact of the sanction is punitive. 145 N.J.
at 583. We also explained that protection against double
jeopardy under the New Jersey Constitution, art. I, ¶ 11, is at
least coextensive with the protection afforded by the Double
Jeopardy Clause of the Fifth Amendment of the United States
Constitution. Id. at 582.
After this Court heard oral argument in this appeal and in
State v. Black, supra, the United States Supreme Court decided
Hudson v. United States, 522 U.S. ___,
118 S. Ct. 488,
139 L. Ed.2d 450 (1997), in which a five-member majority of the Court
largely disavowed the method of double jeopardy analysis used in
Halper. See Black, supra, ___ N.J. at ___ - ___ (slip op. at 6-9). In Hudson, the majority
rejected the rule that whether a sanction is
subject to double jeopardy restraints depends
on whether that sanction is "punitive," as
opposed to "solely" remedial in nature, and
reestablished the traditional rule that
whether a sanction is subject to double
jeopardy restraints depends on whether that
sanction essentially constitutes a criminal
penalty.
[Black, supra, ___ N.J. at ___ (slip op. at
7)(citing Hudson, supra, 522 U.S. at ___, 118
S. Ct. at 493-94, 139 L. Ed.
2d at 458-59).]
We explained in Black that
[b]ecause we find that defendant's argument
must fail under both federal and New Jersey
double jeopardy jurisprudence as it existed
prior to the Supreme Court's decision in
Hudson, and because application of Hudson
would only increase the burden on defendant,
we need not address whether New Jersey's
double jeopardy jurisprudence should be
reevaluated in the wake of Hudson.
Therefore, the inquiry sufficient for the
disposition of this appeal remains whether
the administrative sanction of parole
revocation was intended by the legislature to
impose punishment or is punitive in impact in
accordance with prevailing federal and New
Jersey precedent prior to Hudson.
We distinguished the sanction of parole revocation from the crime of absconding from parole under N.J.S.A. 2C:29-5b, which we
explained derives from the crime of escape and "is clearly
intended to punish violators of that criminal code provision."
Id. at ___ (slip op. at 18). We reemphasize that "[b]y its
terms, absconding from parole is a purposive crime that applies
only to certain parole violators," ibid., and that "[t]he
critical element of the absconding offense is the act of going
into hiding or leaving the state for the purpose of avoiding
parole supervision." Id. at ___ (slip op. at 19). "It is only
the purposeful avoidance of parole supervision that the
legislature determined to criminalize for the purposes of
deterrence and retribution." Id. at ___ (slip op. at 19-20).
We note, however, although the issue was never raised by
defense counsel at the plea hearing or on appeal, that the plea
taken from defendant by the trial court was barely sufficient to
establish a violation of N.J.S.A. 2C:29-5b. Unlike the defendant
in Black, who relocated out-of-state at a location unknown to
parole officials, id. at ___, (slip op. at 2), there is no
evidence on this record that this defendant "[a]bandon[ed] a
place of residence without the prior permission of or notice to
the appropriate supervising authority," which under N.J.S.A.
2C:29-5b constitutes "prima facie evidence that the person
intended to avoid such supervision."
With regard to absconding from parole, the following
colloquy ensued at the plea hearing between the court and
defendant:
Q. All right, the indictment charges on
escape, March 26, 1993 you did commit the
crime of escape by absconding from parole
that was imposed three different times,
September 25, [19]87 and December 4, [19]87
and November 18, [19]88. Tell me what
happened?
[A.] I was released on parole to the
Institute of Human Development Drug Program.
I was there for about 31 days. I was on a
furlough. I came back several hours late.
They said they were going to dismiss me from
that program and that they, I guess, notified
my parole officer at which time I packed and
left.
Q. You left. Did you ever contact your
parole officer after that?
A. No, sir.
Q. How long were you supposed to be there?
A. They said a year.
Q. A year. And how long were you there?
A. Thirty-one days, approximately that.
Q. And then you had no contact with anybody
in parole until you were picked up in May?
A. Correct.
Q. And that is when you were picked up on
the Garden State Parkway?
A. Yes.
We are satisfied that defendant's answers to the court's
questions were minimally sufficient to establish a factual basis
from which the court could conclude that defendant purposefully
avoided parole supervision after leaving the Institute of Human
Development Drug Program.
We also find that the imposition of both the criminal
sanction of conviction for absconding from parole and the
administrative sanction of parole revocation, which we concluded
in Black, supra, were clearly differentiated in their "essential
purpose, essential effect, and targeted conduct," was not
fundamentally unfair. ___ N.J. at ___ (slip op. at 21). We thus
decline "to apply the doctrine of fundamental fairness to
prohibit what the constitutional protections against double
jeopardy do not." Ibid. "There is no indication that either the
Legislature in enacting N.J.S.A. 2C:29-5b, the State Parole Board
in revoking defendant's parole, or the State in pursuing this
prosecution, acted in a way that was unjust, arbitrary, or unduly
oppressive." Id. at ___ (slip op. at 22).
a. In addition to any other disposition authorized by law, a person convicted under the provisions of this chapter of theft or unlawful taking of a motor vehicle shall be subject:
(1) For the first offense, to a penalty
of $500.00 and to the suspension or
postponement of the person's license to
operate a motor vehicle over the highways of
this State for a period of one year.
(2) For a second offense, to a penalty of $750.00 and to the suspension or postponement of the person's license to
operate a motor vehicle over the highways of
this State for a period of two years.
(3) For a third or subsequent offense,
to a penalty of $1,000.00, and to the
suspension or postponement of the person's
license to operate a motor vehicle over the
highways of this State for 10 years.
b. The suspension or postponement of the
person's license to operate a motor vehicle
pursuant to subsection a. of this section
shall commence on the day the sentence is
imposed. In the case of any person who at
the time of the imposition of sentence is
less than 17 years of age, the period of the
suspension of driving privileges authorized
herein . . . shall commence on the day the
sentence is imposed and shall run for a
period as fixed by the court of one year for
a first offense, two years for a second
offense or 10 years for a third offense
calculated from the day after the day the
person reaches the age of 17 years. If the
driving privilege of any person is under
revocation, suspension, or postponement for a
violation of any provision of this Title or
Title 39 of the Revised Statutes at the time
of any conviction or adjudication of
delinquency for a violation of any offense
defined in this chapter or chapter 36 of this
Title, the revocation, suspension or
postponement period imposed herein shall
commence as of the date of the termination of
the existing revocation, suspension, or
postponement.
N.J.S.A. 2C:20-2.1 was enacted as L. 1991, c. 83, § 1, as part of a package of four bills designed to increase penalties for motor vehicle theft. As part of the same bill, N.J.S.A. 2C:20-2.2 permitted a court to order a defendant to pay a fine equaling the fair market value of any car worth over $7,500.00 if that vehicle was not recovered. N.J.S.A. 2C:20-16, enacted as L. 1991, c. 80, § 1, created a new second-degree crime for maintaining a "chop shop." N.J.S.A. 2C:20-17, enacted as L.
1991, c. 81, § 1, established that an adult who knowingly uses a
person 17 years of age or younger to steal a car commits a
second-degree offense. Pursuant to N.J.S.A. 2C:20-18, enacted as
L. 1991, c. 82, § 1, a defendant convicted as the leader of an
auto theft trafficking network is also guilty of a second-degree
crime. The Legislature subsequently amended N.J.S.A. 2C:20-2.1
to make its terms applicable to the theft and unlawful taking of
any motor vehicle, not just an automobile. L. 1993, c. 219, § 4.
That package of bills was enacted in response to an epidemic
of auto thefts in New Jersey. See Richard S. Remington, Car
Theft Package Cleared by Senate, Newark Star Ledger, March 5,
1991, at 20. At the time of the bills' passage, New Jersey had
the third highest auto-theft rate in the nation. Emily J.
Hornaday, Tough Bills Zoom in on Auto Theft, Trenton Times, April
3, 1991, at A1. The cities of Newark, Trenton, Irvington, East
Orange, Camden, and Elizabeth were all listed on an FBI list of
the ten cities with the highest auto-theft rates in the nation.
Ibid.
Governor Florio released a statement emphasizing the
retributive goal of the 1991 package of bills on auto theft:
Car thieves will now face stiffer penalties
and tougher laws in New Jersey . . . . Today
we're keeping a promise to another group of
people: those who make a living stealing
cars . . . . The promise is we will catch you
and you will go to jail.
. . . .
That's what the people of New Jersey demand
and deserve. Car theft and jail. Perfect
together.
[Office of the Governor, News Release (April
2, 1991)(internal quotations omitted).]
Senator Raymond Lesniak, the bills' sponsor in the Senate,
emphasized the deterrent goal of the legislation and specifically
of the provisions on license suspension: "Sometimes the threat
of losing a driver's license for a long time is enough to scare
off young people from engaging in auto theft." Richard S.
Remington, Car Theft Package Cleared by Senate, Newark Star
Ledger, March 5, 1991, at 20.
In State v. Rama,
298 N.J. Super. 339, 341 (App. Div. 1997),
aff'd o.b., ___ N.J. ___ (1998), the court held that the
suspension of driving privileges pursuant to N.J.S.A. 2C:20-2.1
is mandatory upon a conviction for automobile theft. No reported
New Jersey cases have addressed the question raised in this
appeal with regard to the propriety of imposing consecutive
license suspensions for multiple auto thefts when the sentencing
for each offense takes place on the same day. Defendant argues
that the plain language of subsection b. of the statute that the
"suspension or postponement of the person's license to operate a
motor vehicle pursuant to subsection a. of this section shall
commence on the day the sentence is imposed" (emphasis added),
requires that each of his suspensions run concurrently from the
day of sentencing. The State responds that the graduated scale
of penalties for repeat offenders in subsection a. reflects the
Legislature's clear intent to impose severe penalties for each
incident of theft, and to impose even harsher penalties on
multiple offenders such as defendant. Subsection b. also
provides that where a defendant is under 17 at the time of
sentencing, the suspension period will not begin until the day
after the defendant's seventeenth birthday, and also requires
that a defendant with an existing suspension will not begin
serving the newly imposed suspension until the earlier suspension
has expired. Accordingly, the State observes that under the
plain language of the statute not all suspensions are required to
begin on the day that sentence is imposed.
Because we find that the statute is subject to more than one
reasonable interpretation, we "look beyond its plain language to
determine the Legislature's intent." State v. Bridges,
131 N.J. 402, 407 (1993). The legislative history of N.J.S.A. 2C:20-2.1
clearly demonstrates the Legislature's intent to impose harsh
penalties for auto theft, as well as to impose particularly
severe punishment on career car thieves. Were we to accept
defendant's interpretation of the statute and thus prohibit
courts from imposing a consecutive license suspension for each
incident of auto theft, we would dilute the evident retributive
and deterrent goals of the Legislature.
We find distinguishable this Court's opinion in State in re
T.B.,
134 N.J. 382 (1993), relied on by defendant. In T.B., we
construed N.J.S.A. 2C:35-16, which provides for mandatory
forfeiture or postponement of driving privileges for convicted
offenders under chapters 35 and 36 of the Code of Criminal
Justice, enumerating crimes involving controlled dangerous
substances and drug paraphernalia, respectively. That statute
contains language similar to that of subsection b. of N.J.S.A.
2C:20-2.1. In relevant part, N.J.S.A. 2C:35-16 provides:
[E]very person convicted of or adjudicated
delinquent for a violation of any offense
defined in this chapter or chapter 36 of this
title shall forthwith forfeit his right to
operate a motor vehicle over the highways of
this State for a period to be fixed by the
court at not less than six months or more
than two years which shall commence on the
day the sentence is imposed. In the case of
any person who at the time of the imposition
of sentence is less than 17 years of age, the
period of the suspension of driving
privileges authorized herein . . . shall
commence on the day the sentence is imposed
and shall run for a period as fixed by the
court of not less than six months or more
than two years after the day the person
reaches the age of 17 years. If the driving
privilege of any person is under revocation,
suspension, or postponement for a violation
of any provision of this title or Title 39 of
the Revised Statutes at the time of any
conviction or adjudication of delinquency for
a violation of any offense defined in this
chapter or chapter 36 of this title, the
revocation, suspension, or postponement
period imposed herein shall commence as of
the date of termination of the existing
revocation, suspension or postponement.
In determining whether that statute should be construed to
preclude the imposition of consecutive suspensions of driving
privileges on an offender being sentenced on the same date for
multiple drug offenses, this Court in T.B., supra, 134 N.J. at
383, found that "[t]he arguments in favor of either outcome are
evenly balanced." We then determined that
because sufficient flexibility exists in the
range of the suspensions the court may
impose, the concurrent suspension of driving
privileges more closely reflects the
Legislature's intent concerning this sanction
and will best advance the efficient trial and
disposition of multiple drug offenses.
Much of the reasoning that supported our interpretation of N.J.S.A. 2C:35-16 in T.B. is not applicable to N.J.S.A. 2C:20-2.1, and consequently does not control the issue posed by this appeal. A significant distinction between the two statutes is that N.J.S.A. 2C:20-2.1a provides for fixed penalties and suspensions for the first, second, third and each subsequent offense, whereas N.J.S.A. 2C:35-16 provides a court more flexibility in sentencing by providing a range of suspension between six and twenty-four months for every person convicted of a drug offense. If the statutory arguments in favor of either
permitting or precluding consecutive suspensions under N.J.S.A.
2C:35-16 were found by this Court in T.B., supra, 134 N.J. at
383, to be in equipoise, that significant distinction shifts the
balance in favor of permitting consecutive suspensions under
N.J.S.A. 2C:20-2.1. We concluded in T.B. that the range of
suspension provided for in N.J.S.A. 2C:35-16 would "provide
appropriate punishment and adequate deterrence." Id. at 388. In
contrast, only by permitting consecutive suspensions will the
court be able to impose the prescribed penalty for each
"offense," as suggested by the language of N.J.S.A. 2C:20-2.1a.
We also explained in T.B. that in enacting the Comprehensive
Drug Reform Act,
[t]he Legislature sought "to provide for the
strict punishment, deterrence and
incapacitation of the most culpable and
dangerous drug offenders, and to facilitate
where feasible the rehabilitation of drug
dependent persons so as ultimately to reduce
the demand for illegal controlled dangerous
substances and the incidence of drug-related
crime."
[Id. at 387-88 (quoting N.J.S.A.
2C:35-1.1c).]
In comparison, the legislative history, and particularly the public pronouncements of Governor Florio and Senator Lesniak, suggests that in enacting N.J.S.A. 2C:20-2.1 the Legislature sought to impose harsh penalties on auto thieves for the purpose of deterrence. The statute and the legislative history suggest no complementary goal of rehabilitation. In Hawks, supra, 114 N.J. at 365-66, this Court explained that there is a fundamental difference between the goals of "purely deterrence-oriented
statutes" and "the rehabilitative function of repeat-offender
statutes." The Court, construing the mandatory extended-term
provisions of the Graves Act, N.J.S.A. 2C:43-6c and N.J.S.A.
2C:44-3d, found that "the potency of its deterrent value lies
precisely in the certainty of enhanced punishment." Id. at 366.
The Court thus explained that "[t]o allow a defendant to escape
the statutorily-required higher penalty . . . either because of
strategic maneuvering by counsel or because of the vicissitudes
of the court docket, would create for defendants a windfall not
envisioned by the Legislature." Id. at 366-67.
By providing in N.J.S.A. 2C:20-2.1 for fixed, graduated
penalties for each subsequent auto-theft offense, the Legislature
intended to deter auto thieves with the "certainty of enhanced
punishment" -- a goal that is not reflected to the same extent by
the flexible range of suspension available to a sentencing court
under N.J.S.A. 2C:35-16. In State v. Bowser,
272 N.J. Super. 582, 586-87 (1993), the Law Division explained that "purely
deterrent-oriented statutes . . . normally do not encourage
rehabilitation and make it difficult to differentiate among
offenders," and that "such statutes limit the discretionary
aspect of punishment, recognized in Hawks as one of the most
important aspects of criminal justice." That description clearly
applies to N.J.S.A. 2C:20-2.1, and the deterrent-oriented purpose
of that statute distinguishes this appeal from T.B.
Another distinction is that many drug offenders subject to
suspension of driving privileges under N.J.S.A. 2C:35-16 are
guilty of no more than a disorderly-persons offense or a third
or fourth-degree offense in which a probationary term will be
involved, whereas N.J.S.A. 2C:20-2.1 will impact only those
guilty of second- or third-degree auto theft. Pursuant to
N.J.S.A. 2C:44-1e, not even first-time offenders convicted of
third-degree theft of a motor vehicle will receive a presumption
of non-incarceration. Furthermore, N.J.S.A. 2C:44-1d singles out
auto theft by making repeat auto thefts the only third-degree
offenses subject to a presumption of imprisonment. As a result,
the concern expressed by the Court in T.B. that a rule permitting
consecutive license suspensions would be harsher on less severe
offenders is not as persuasive in interpreting N.J.S.A. 2C:20-2.1. Additionally, the windfall to a career auto thief, such as
defendant, of a rule that would preclude the imposition of
consecutive suspensions when separate and distinct incidents of
auto theft are sentenced on the same date "either because of
strategic maneuvering by counsel or because of the vicissitudes
of the court docket," Hawks, supra, 114 N.J. at 367, would be
quite significant under N.J.S.A. 2C:20-2.1, which provides for a
ten-year suspension for a third or subsequent auto theft offense.
The Legislature could not have intended to confer that benefit on
repeat auto-theft offenders.
We hold that the discretionary determination whether
driver's license suspensions for multiple auto thefts under
N.J.S.A. 2C:20-2.1 are to be served concurrently or consecutively
should be made by the sentencing court consistent with the
principles set forth in State v. Yarbough,
100 N.J. 627 (1985),
cert. denied,
475 U.S. 1014,
106 S. Ct. 1193,
89 L. Ed.2d 308
(1986), superseded by statute to the extent that it recommended
an overall outer limit on the cumulation of consecutive sentences
for multiple offenses. N.J.S.A. 2C:44-5a; Cannel, New Jersey
Criminal Code, Annotated, comment 3 on N.J.S.A. 2C:44-5 (1997).
Because defendant's thefts, first of the Chrysler van, then of
the Isuzu Trooper, and finally of the Mercedes and the Jeep,
clearly were independent crimes -- committed at different times
in separate places and affecting separate victims -- the
imposition of three consecutive ten-year suspensions could
constitute a proper exercise of the sentencing court's
discretion. See State v. Ghertler,
114 N.J. 383, 390-394 (1989);
Yarbough, supra, 100 N.J. at 644. However, this Court also
observed in Yarbough that "the reasons for imposing either a
consecutive or concurrent sentence should be separately stated in
the sentencing decision . . . ." Id. at 643. The record before
the Court reveals that the Law Division failed to articulate its
reasons for imposing consecutive suspensions, instead simply
summarizing the aggravating and mitigating factors on each
judgment of conviction. We therefore remand this matter to the
Law Division for reconsideration of the imposition of consecutive
or concurrent license suspensions, and for a statement of the
reasons underlying its determination.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN,
GARIBALDI, and COLEMAN join in JUSTICE STEIN's opinion.
NO. A-75 SEPTEMBER TERM 1997
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAVID EISENMAN,
Defendant-Appellant.
DECIDED May 14, 1998
Chief Jusitce Poritz PRESIDING
OPINION BY Justice Stein
CONCURRING OPINION BY
DISSENTING OPINION BY