(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).
Argued January 4, 1995 -- Decided April 20, 1995
COLEMAN, J., writing for a majority of the Court.
There are two issues before the Court: 1) whether a second Graves Act offender may be sentenced
to a mandatory extended term of imprisonment while the first Graves Act conviction is pending on appeal or
the time to appeal that conviction has not expired; and 2) whether a defendant may have his or her sentence
increased to an extended sentence following affirmance of the first Graves Act conviction without violating
principles of fundamental fairness.
Joseph Leon Haliski was convicted of first-degree robbery. Because he was armed with a firearm
during the commission of the crime, Haliski was subject to the mandatory extended-term sentence under the
Graves Act. The trial court found that a mandatory extended prison term was required because Haliski
previously had been convicted of another armed robbery with a firearm. Haliski was sentenced on June 22,
1990 to a mandatory extended term of fifty years with seventeen years of parole ineligibility. That extended
sentence was to run consecutive to a fifteen-year prison term with five years of parole ineligibility imposed
for his first Graves Act conviction, which was on appeal at the time of June 22, 1990 sentencing. The
Appellate Division affirmed Haliski's conviction but vacated the sentence and remanded the matter for
resentencing because Haliski was sentenced as a second Graves Act offender before the time to appeal his
prior Graves Act conviction had expired. The Supreme Court denied Haliski's petition for certification.
On remand, the trial court resentenced Haliski to an ordinary prison term of fifteen years with a
five-year period of parole ineligibility. That sentence was to run consecutive to the sentence imposed for the
first Graves Act robbery . At the time of resentencing, the trial judge was not aware that the Appellate
Division recently had affirmed the first Graves Act conviction. Thereafter, the State filed a motion to vacate
the ordinary term sentence on the second Graves Act robbery, alleging that the sentence was illegal at the
time it was imposed because the Appellate Division already had affirmed the first Graves Act conviction and
no petition for certification had been filed. The trial court granted the State's motion and reimposed the
original mandatory extended term.
The Appellate Division affirmed the reimposition of the mandatory extended term. A majority of
the panel ruled that in sentencing a second Graves Act offender whose prior Graves Act conviction is
pending on appeal, the court must impose initially an ordinary prison term because N.J.S.A. 2C:44-4b
(section 44-4b) directs that a conviction is not to be considered "prior" before "the time to appeal has
expired." The court also found that once the Graves Act conviction is affirmed, the State is entitled to have
the sentence increased to an extended term, and that correcting the illegal sentence did not violate
considerations of fundamental fairness in view of the legislative mandate. In a concurring opinion, one judge
disagreed with the majority's rule of law finding that there was no authority for it but concurred in the
judgment based on his conclusion that the imposition of the Graves Act extended term under the
circumstances presented did not violate Haliski's due-process or double-jeopardy rights.
The Supreme Court granted certification.
HELD: A second Graves Act offender may be sentenced to a mandatory extended term of imprisonment
while the first Graves Act conviction either is pending on appeal or the time to appeal that
conviction has not yet expired. In addition, a defendant may have his or her sentence increased to
an extended sentence following affirmance of the first Graves Act conviction without violating
principles of fundamental fairness.
1. The Graves Act reflects the clear legislative intent to impose mandatory prison terms on those who use firearms during the commission of certain offenses. The Graves Act is concerned with deterrence, not
rehabilitation. A majority of courts in other jurisdictions have concluded that a pending appeal on a prior
conviction does not preclude its use for enhancement of sentence. These jurisdictions also allow the
defendant to petition for modification of sentence if the prior conviction is reversed. The reasoning of a
number of courts espousing the majority position is persuasive. (pp. 5-14)
2. Legislative silence or inaction following State v. Mangrella does not justify the conclusion that the
Legislature approves of the Mangrella court's reading of section 44-4b. Mangrella involves discretionary
sentence enhancement of persistent offenders rather than mandatory enhancement of a sentence under the
Graves Act; therefore, the Legislature might not have found Mangrella inconsistent with the overall policy of
the Code. Insofar as the Graves Act is concerned, the purpose of section 44-4b is to prevent the enhanced
sentence from becoming final before completion of the direct appeal in the prior Graves Act conviction or
before the time for that appeal has expired. That interpretation is consistent with the policies underlying the
Code. As such, Mangrella is inapplicable to an inquiry concerning the mandatory sentencing provisions of
the Graves Act. (pp. 15-19)
3. Based on its power to administer the criminal justice system, the Court has the power to establish
provisional sentencing of subsequent Graves Act offenders regardless of the appeal status of the prior Graves
Act conviction. Thus, when a defendant is exposed to a Graves Act mandatory extended term, that extended
term should be imposed by the court. Should the prior conviction subsequently be reversed on appeal, the
trial court shall amend the extended-term sentence to an ordinary Graves Act sentence. Thus, the imposition
of the mandatory extended term in Haliski's first sentencing was legal. (pp. 19-22)
4. Due process and double jeopardy bar the imposition of a sentence greater than the one initially
imposed in cases where the defendant maintains a "legitimate expectation of finality" in respect of the
sentence. Here, Haliski has suffered no deprivation of his constitutional rights as a result of the imposition
of the mandatory extended term on his second resentencing. Because Haliski challenged his underlying
conviction as well as the sentence on direct appeal, he had no legitimate expectation of finality with respect
to either the conviction or the sentence. It is what is sought on appeal, rather than the relief granted, that
defines what constitutes a legitimate expectation of finality. (pp. 22-27)
5. The rule adopted today will have limited retroactive application. It shall apply to this case, to all
cases in which sentencing on the second Graves Act conviction has not yet occurred, and to all cases where
the defendant has been sentenced on the second Graves Act conviction, but as of the date of this decision,
the parties have not exhausted all avenues of direct review. The trial court must decide on a case-by-case
basis whether today's ruling has altered a defendant's legitimate sentence expectation when negotiated pleas
are involved and, if necessary, the court must fashion the appropriate relief. (pp. 27-28)
Judgment of the Appellate Division is AFFIRMED.
JUSTICE O'HERN, dissenting, in which JUSTICE STEIN joins, is of the view that the Court has
designed a system of temporary sentencing that is neither authorized by law nor realistically required to
impose a sentence that is appropriate for Haliski. The law need not have been changed in order to
accommodate the chronology of events that occurred here because Haliski could have been appropriately
sentenced as a persistent offender. Any change to the Code properly should have been left to the
Legislature.
JUSTICE STEIN, dissenting, in which JUSTICE O'HERN joins, is of the view that the Court
amended the Code to authorize a sentencing procedure nowhere to be found within the Code's provisions.
While that amendment makes good sense and will not likely be disturbed by the Legislature, the Court
usurped the function of the Legislature.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK and GARIBALDI join in
JUSTICE COLEMAN'S opinion. JUSTICE O'HERN has filed a separate dissenting opinion in which
JUSTICE STEIN joins. JUSTICE STEIN has filed a separate dissenting opinion in which JUSTICE
O'HERN joins.
SUPREME COURT OF NEW JERSEY
A-
59 September Term 1994
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSEPH LEON HALISKI,
Defendant-Appellant.
Argued January 4, 1995 -- Decided April 20, 1995
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
273 N.J. Super. 157 (1994).
Stephen W. Kirsch, Assistant Deputy Public
Defender, argued the cause for appellant
(Susan L. Reisner, Public Defender,
attorney).
Carol M. Henderson, Deputy Attorney General,
argued the cause for respondent (Deborah T.
Poritz, Attorney General of New Jersey,
attorney; Richard W. Berg, Deputy Attorney
General, on the letter in lieu of brief).
The opinion of the Court was delivered by
COLEMAN, J.
The central issue in this appeal is whether a second Graves
Act offender may be sentenced to a mandatory extended term of
imprisonment while the first Graves Act conviction is pending on
appeal or the time to appeal that conviction has not expired. A
second issue is whether defendant may have his sentence increased
to an extended sentence following affirmance of the first Graves
Act conviction without violating principles of fundamental
fairness.
A jury found defendant guilty of first-degree robbery, a violation of N.J.S.A. 2C:15-1. In a presentence hearing conducted pursuant to N.J.S.A. 2C:43-6d, the trial court found that defendant was armed with a firearm during the commission of the robbery and was therefore subject to a mandatory extended-term sentence under the Graves Act, N.J.S.A. 2C:43-6c. The court found that a mandatory extended prison term was required because defendant previously had been convicted of another armed robbery with a firearm. The trial judge sentenced defendant on June 22, 1990, to a mandatory extended term of fifty years with seventeen years of parole ineligibility. The extended sentence was to run consecutive to a fifteen-year prison term with five years of parole ineligibility imposed for his first Graves Act conviction. The first Graves Act offense, which made defendant eligible for the mandatory extended term, was on appeal when defendant was sentenced on June 22, 1990.
In an unpublished opinion dated April 15, 1992, the Appellate Division affirmed defendant's second robbery conviction. The court, however, vacated the sentence and remanded the matter for resentencing based on the Deputy Attorney General's impression that defendant "must be resentenced because he was sentenced as a second Graves Act offender before the time to appeal his prior Graves Act conviction had expired." We denied defendant's petition for certification. 130 N.J. 393 (1992).
On remand, the trial court resentenced defendant on July 10,
1992, to an ordinary prison term of fifteen years with a five-year term of parole ineligibility. The sentence was made to run
consecutive to the sentence imposed for the first Graves Act
robbery. At the time of the resentencing, the trial judge
apparently was unaware the Appellate Division had affirmed the
first Graves Act conviction eighty-seven days earlier in an
unreported decision dated April 14, 1992. Indeed, counsel for
defendant informed the judge, "I believe that appeal is still
pending even as we speak." Without intending any criticism, we
note that this oversight may have been caused by the fact that
neither of the Appellate Division decisions mentioned the other,
even though both were decided by the same judges and filed one
day apart.
On October 9, 1992, the State filed a motion pursuant to
Rule 3:21-10(b)(4) to vacate the ordinary term sentence on the
second Graves Act robbery. The State alleged the sentence was
illegal at the time it was imposed because the Appellate Division
already had affirmed the first Graves Act conviction and no
petition for certification had been filed. The State relied on
State v. Paladino, 203 N.J. Super. 537, 549 (App. Div. 1985), for
its assertion that an illegal sentence is correctable at any
time. Defendant concedes that he could have no legitimate
expectations of finality in an illegal sentence. The trial court
granted the State's motion and imposed the original mandatory
extended term. Defendant also concedes that the only legal
sentence as of the time of that second resentencing was the one
imposed based on the State's October 9 motion.
The Appellate Division affirmed the reimposition of the
mandatory extended term.
273 N.J. Super. 157 (1994). The
majority opinion ruled that in sentencing a second Graves Act
offender whose prior Graves Act conviction is pending on appeal,
the court must impose initially an ordinary prison term because
N.J.S.A. 2C:44-4b directs that a conviction is not to be
considered "prior" before "the time to appeal has expired." Id.
at 160. The majority further held that once the prior Graves Act
conviction is affirmed, the State is entitled to have the
sentence increased to an extended term. Ibid. The court
reasoned that the ordinary sentence is rendered illegal by the
affirmance of the prior Graves Act conviction, and an illegal
sentence may be corrected at any time. Ibid. (citing Rule 3:22-2(c)); State v. Kirk,
243 N.J. Super. 636 (App. Div. l990)). The
court found that correcting the illegal sentence did not violate
considerations of fundamental fairness in view of the legislative
mandate.
In a concurring opinion, Judge Stern disagreed with the rule
of law announced by the majority. 273 N.J. Super. at 161. He
found no statutory authority for the proposition that a legal
ordinary Graves Act sentence may later be increased to an
extended term following an affirmance of a prior Graves Act
conviction. Nor did he find any authority for concluding that an
extended term may be imposed subject to a subsequent decrease
should the prior conviction be reversed on appeal. Id. at 162.
He was persuaded that the clear language of N.J.S.A. 2C:44-4b
prohibits a court from considering a prior judgment as a
conviction for Graves Act extended-term purposes if there is an
appeal pending, or the time to appeal has not expired. He
expressed the view that the Legislature, not the Judiciary,
should address the apparent ambiguity in the statutory scheme.
Id. at 163.
Even though Judge Stern disagreed with the rule announced in
the majority decision, he concurred in the judgment of the court
based on his conclusion that the imposition of the Graves Act
extended term under the circumstances presented did not violate
defendant's due-process or double-jeopardy rights. Id. at 164.
Relying on State v. Rodriguez,
97 N.J. 263, 271 (l984), he
reasoned that because defendant's initial appeal challenged the
conviction itself as well as the sentence, defendant had no
legitimate expectation of finality with respect to his sentence.
273 N.J. Super. at 164. Hence, the majority and concurring
opinions agreed that imposition of the mandatory extended term,
once the prior conviction had been affirmed, did not infringe
defendant's constitutional rights. Id. at 165. We granted
certification,
137 N.J. 310 (l994). We affirm the sentence
imposed, but we reject the sentencing procedure approved by the
Appellate Division.
This case requires us to resolve the tension between two
statutes, N.J.S.A. 2C:43-6c and N.J.S.A. 2C:44-4b, which touch
upon the legislative intent to require mandatory terms of
imprisonment for some repeat offenders who use or possess
firearms during the commission of certain offenses. Those
statutes must be analyzed against the backdrop of the well-established principle that instead of rehabilitation, "the Graves
Act approach is deterrence through the promise of imprisonment."
State v. Des Marets,
92 N.J. 62, 71 (l983); see also State v.
Stewart,
96 N.J. 596, 601 (l984) (stating that Graves Act "seeks
to deter crime, not to rehabilitate criminals").
The Graves Act directs that under some circumstances a
defendant who has a prior Graves Act conviction must be required
to serve an extended sentence. The Graves Act mandatory
extended- sentence provision, N.J.S.A. 2C:43-6c, provides:
A person who has been convicted of an
offense enumerated by this subsection and who
used or possessed a firearm during its
commission, attempted commission or flight
therefrom and who has been previously
convicted of an offense involving the use or
possession of a firearm as defined in 2C:44-3d., shall be sentenced by the court to an
extended term as authorized by 2C:43-7c.,
notwithstanding that extended terms are
ordinarily discretionary with the court.
N.J.S.A. 2C:44-4b defines "prior conviction of a crime"
as follows:
An adjudication by a court of competent jurisdiction that the defendant committed a crime constitutes a prior conviction, although sentence or the execution thereof was suspended, provided that the time to
appeal has expired and that the defendant was
not pardoned on the ground of innocence.
Defendant argues that the plain language of N.J.S.A. 2C:44-4b demands that a conviction cannot be considered "prior" for
purposes of enhanced sentencing under the Graves Act unless "the
time to appeal [that prior conviction] has expired." He claims
further that a literal reading of N.J.S.A. 2C:44-4b is supported
by State v. Mangrella,
214 N.J. Super. 437, 445 (App. Div. l986),
certif. denied,
107 N.J. 127 (l987). As a corollary, defendant
asserts that the failure of the Legislature to act to amend
N.J.S.A. 2C:44-4b following Mangrella is indicative of the
Legislature's approval of that decision's application of N.J.S.A.
2C:44-4b.
Mangrella held that chronologically sequential convictions
(first offense must be the first conviction or judgment) are not
required for imposition of discretionary sentence-enhancement as
a "persistent offender" under N.J.S.A. 2C:44-3a. Id. at 245. In
that discretionary sentence enhancement context, Mangrella also
held that all judgments that otherwise satisfy the requirements
of N.J.S.A. 2C:44-3a may be considered for sentencing "provided
that there is no pending appeal or right to direct appeal."
Ibid.
It is well established that in construing a statutory
provision, courts must seek to fulfill the statutory objective
"so far as the terms of the legislation and proper consideration
of the interests of those subject to it will fairly permit."
State v. Gill,
47 N.J. 441, 444 (l966) (citing State v.
Provenzano,
34 N.J. 318, 322 (l96l)). Moreover, "whatever be the
rule of [statutory] construction, it is subordinate to the goal
of effectuating the legislative plan as it may be gathered from
the enactment `when read in full light of its history, purpose
and context.'" Ibid. (quoting Lloyd v. Vermeulen,
22 N.J. 200,
204 (l956)); accord Roig v. Kelsey,
135 N.J. 500, 515 (1994);
Lesniak v. Budzash,
133 N.J. 1, 8 (1993). Finally, it is
axiomatic that statutory interpretations that lead to absurd or
unreasonable results are to be avoided. Ibid. (citing Robson v.
Rodriguez,
26 N.J. 517, 528 (l958)).
In determining the interaction between N.J.S.A. 2C:44-4b and
the Graves Act mandatory extended-term provision, we must examine
the legislative intent underlying each statute. Fundamentally,
the Graves Act reflects the clear intent on the part of the
Legislature to impose mandatory prison terms on those who arm
themselves prior to the commission of certain offenses. State v.
Hawks,
114 N.J. 359, 365-66 (l989). The legislative history of
the Graves Act indicates the Act is concerned only with
deterrence and is wholly unconcerned with rehabilitation. Ibid.;
State v. White,
98 N.J. 122, 128 (l984); Stewart, supra, 96 N.J.
at 601. Thus, the essential spirit underlying the Graves Act is
that the promise and certainty of a mandatory prison term is
absolutely indispensable to achieving deterrence of the use of
firearms during the commission of crimes. See Hawks, supra, 114
N.J. at 366 (stating "the potency of [the Graves Act's] deterrent
value lies precisely in the certainty of enhanced punishment");
Des Marets, supra, 92 N.J. at 71 (stating "the Graves Act
approach is deterrence through the promise of imprisonment").
This case invokes the judicial obligation to enforce a
legislatively mandated extended term sentence with parole
ineligibility for the protection of society. State v.
Jefimowicz,
119 N.J. 152, 162 (l990); Des Marets, supra, 92 N.J.
at 80.
The legislative history of N.J.S.A. 2C:44-4b offers little
definitive guidance. The former statutory provision was part of
the original enactment of the Code of Criminal Justice (Code) by
L. 1978, c. 95, effective September 1, 1979. Its terms were
expressly limited to determinations to be made under N.J.S.A.
2C:44-1 (encompassing statutory aggravating and mitigating
factors), and N.J.S.A. 2C:44-3a (relating to persistent
offenders). It contained the qualification which remains
unchanged: "provided that the time to appeal has expired."
Before the Code became effective, however, N.J.S.A. 2C:44-4b was
amended by L. 1979, c. 178, § 96, also effective September 1,
1979, deleting the limitation of its scope to N.J.S.A. 2C:44-1
and 44-3a matters. The Senate Judiciary Committee's Statement
that accompanied the amendatory legislation indicated that
N.J.S.A. 2C:44-4 was rewritten "for purposes of clarity." Senate
Judiciary Committee Statement to Senate Bill No. 3203, at 10
(June 18, 1979). It stated that the only significant change was
to recognize a conviction in another jurisdiction that authorized
imprisonment in excess of six months. Ibid.
Apart from the legislative history of the two statutes, the
Code's enhancement of sentence for multiple offenders based on
prior convictions is not uniform. Under N.J.S.A. 2C:14-6, the
enhancement of sentence for a second or subsequent sex offender
requires not only that the second or subsequent offense follow
the first offense chronologically, but also that the second or
subsequent offense occur after there has been a conviction on the
prior offense. State v. Anderson,
186 N.J. Super. 174, 175 (App.
Div. 1982), aff'd o.b.,
93 N.J. 14 (l983). In other words,
chronologically sequential offenses and convictions are required.
Id. at 177. The reason for this special treatment of multiple
sex offenders is the perceived legislative objective of
rehabilitating first-time sex offenders, unless a firearm was
used or possessed, in which case the Graves Act applies.
In contrast, chronology of offenses for sentence enhancement
of a "persistent offender" under N.J.S.A. 2C:44-3a is not
important. The sequence of convictions controls. Thus, if a
conviction on a previous offense occurs prior to the date of
sentencing on the "subsequent" offense then before the court, the
"previous offense" requirement has been met. Mangrella, supra,
214 N.J. Super. at 445-46. The purpose in this setting is
discretionary enhancement of punishment.
Similarly, the same bright line has been adopted with
respect to mandatory extended terms under the Graves Act. Hawks,
supra, 114 N.J. at 361, holds that for mandatory extended terms
under N.J.S.A. 2C:43-6c, the chronological sequence of the
offenses and the convictions is not relevant. Here, too, the
legislative purpose is punishment, not rehabilitation.
This Court applied a similar approach in determining whether
a prior murder conviction can be used for penalty enhancement in
death penalty cases if that conviction is on appeal. In State v.
Bey,
96 N.J. 625, 629 (l984), we held that the use of a prior
murder conviction as a statutory aggravating factor in the
penalty phase of a capital proceeding does not require the prior
conviction to have been entered before the occurrence of the
capital murder. Rather, the Court noted, "the status of the
prior conviction at the time of its intended use - the penalty
phase of the subsequent murder prosecution - is determinative."
Ibid. Thus, chronology of the prior offense is not significant,
provided the prior conviction occurred before the jury's
consideration of the penalty in the capital case. Ibid.
Nevertheless, the Court held that a prior murder conviction that
is either on appeal or subject to appeal may not be used as an
aggravating factor. Id. at 628. The same result was reached in
State v. Biegenwald,
96 N.J. 630, 636-37 (l984). In response to
the Court's invitation in Biegenwald, id. at 640, the Legislature
amended the statute to dispense with the requirements that direct
appeals be concluded or the time to appeal expired before the
prior conviction may be considered an aggravating factor. See
N.J.S.A. 2C:11-3c(4)(a) (codifying L. 1985, c. 178).
Even though Bey and Biegenwald relied on N.J.S.A. 2C:44-4b
to preclude the use of a prior murder conviction as an
aggravating factor in a capital case before the right to appeal
that conviction became final, the Court went to great lengths to
make clear that its holding was required because life was at
stake, rendering the penalty "profoundly different from all other
penalties." Biegenwald, supra, 96 N.J. at 639 (quoting Lockett
v. Ohio,
438 U.S. 586, 605,
98 S. Ct. 2954, 2965,
57 L. Ed.2d 973, 990 (l978)). In addition, the profoundly different penalty
is ordinarily imposed by a jury rather than a judge. Thus, a
sentence enhanced by a prior murder that was not final would
require retrial of the penalty phase in the event of a reversal
of the prior murder conviction.
Significantly, Biegenwald also acknowledged that although
N.J.S.A. 2C:44-4b is derived from the Model Penal Code § 7.05,
id. at 636, "our resolution of the question presented is not free
from doubt. We note that the Model Penal Code § 7.05 ... now
appears to be the minority rule." Id. at 639. That prompted the
Court to observe further that N.J.S.A. 2C:44-4b "plausibly could
be read to apply to convictions despite the fact that a direct
appeal is pending." Id. at 640.
The majority of courts in other jurisdictions construing the
term "conviction" used in the Model Penal Code § 7.05, or their
state's comparable provision with respect to sentence
enhancement, have concluded that a pending appeal on a prior
conviction does not preclude its use for enhancement of sentence.
These jurisdictions also permit the defendant to petition for
modification of sentence if the prior conviction is reversed.
See, e.g., Prock v. State,
471 So.2d 519 (Ala. Crim. App. 1985);
Wright v. State,
656 P.2d 1226 (Alaska Ct. App. 1983); State ex
rel. Corbin v. Court of Appeals,
441 P.2d 544 (Ariz. 1968); State
v. Swartz,
683 P.2d 315 (Ariz. Ct. App. 1984); Birchett v. State,
724 S.W.2d 492 (Ark. 1987); Glick v. State,
689 S.W.2d 559 (Ark.
1985); People v. Sarnblad,
103 Cal. Rptr. 211 (Cal. Ct. App.
1972); People v. Clapp,
153 P.2d 758 (Cal. Ct. App. 1944); People
v. District Court of Tenth Judicial Dist.,
559 P.2d 235 (Colo.
1977); Maisonet v. State,
448 N.E.2d 1052 (Ind. 1983); State v.
Eisminger,
260 P. 661 (Kan. 1927); State v. Martin,
316 So.2d 740 (La. 1975); State v. Heald,
382 A.2d 290 (Me. 1978); People
v. Morlock,
209 N.W. 110 (Mich. 1926); Jackson v. State,
418 So.2d 827 (Miss. 1982); State v. Radi,
578 P.2d 1169 (Mont. 1978),
appeal after remand,
604 P.2d 318 (Mont. 1979); State v. Romero,
461 P.2d 70 (Or. Ct. App. 1969); State v. Gallegos,
849 P.2d 586
(Utah Ct. App. 1993); State v. Wimmer,
449 N.W.2d 621 (Wis. Ct.
App. 1989), review denied,
454 N.W.2d 806 (Wis. 1990); cf. State
v. Tipton,
419 P.2d 216 (N.M. 1966) (stating that for purposes of
habitual-offender statute, plea of guilty constitutes a
"conviction" even though sentence has not yet been imposed).
We find persuasive the reasoning of a number of these courts
espousing the majority position. For example, in District Court
of Tenth Judicial Dist., supra, 559 P.
2d at 236, the Supreme
Court of Colorado reasoned:
If prior convictions on appeal were not included [as
"prior convictions" under habitual criminal statute],
many recent felony convictions might be effectively
exempted from the operation of the statute. This would
be clearly inconsistent with the obvious purpose of the
statute, which is to punish repeat offenders.
Similarly, we find the reasoning of the Supreme Judicial
Court of Maine in Heald, supra, compelling:
The legislative purpose [underlying the habitual
offender statute] would be frustrated if the statute
applied only to previous convictions which later became
final judgments. Indeed, the recidivist who appealed
his previous conviction would escape the penal additive
of the habitual offender statute, notwithstanding that
his previous conviction was affirmed on appeal. The
Legislature [in utilizing the language "had been before
convicted and sentenced to any state prison" in its
habitual offender statute] undoubtedly had in mind that
many appeals are frivolous, and, even in the case of
non-frivolous appeals, that the percentage of reversals
is minimal.
[382 A.
2d at 299.]
We also find persuasive the conclusion of the Supreme Court
of Arkansas in Birchett, supra, 724 S.W.
2d at 492, regarding the
practical implications of accepting defendant's argument:
Adopting the theory advanced by the appellant would
result, as a practical matter, in rarely ever being
able to apply the habitual criminal statutes, since
criminal defendants have numerous avenues through which
to seek relief, including direct appeal, petitions
under Rule 37, and federal habeas corpus petitions. We
do not believe that the legislature intended the result
urged by the appellant.
[Ibid. (quoting Hill v. State,
683 S.W.2d 628, 630
(Ark. Ct. App. 1985)).]
As that court noted, "Under appellant's proposal, not only would
the use of prior convictions for enhancement purposes be delayed,
but, in many cases, the State would be foreclosed from availing
itself of their use." Id. at 493.
The contrary rule is followed in a healthy minority of
jurisdictions. See, e.g., Baxter v. State,
617 So.2d 338 (Fla.
Dist. Ct. App. 1993); Croker v. Smith,
169 S.E.2d 787 (Ga. 1969);
Melson v. Commonwealth,
772 S.W.2d 631 (Ky. 1989); State v.
Lewis,
564 So.2d 765 (La. Ct. App. 1990); Butler v. State,
416 A.2d 773 (Md. Ct. Spec. App. 1980); State v. Lane,
642 S.W.2d 935
(Mo. Ct. App. 1982); State v. Estes,
472 N.W.2d 214 (Neb. 1991);
Staniforth v. State,
156 N.E. 924 (Ohio Ct. App. 1927); Morse v.
State,
77 P.2d 757 (Okla. Crim. App. 1938); Jones v. State,
711 S.W.2d 634 (Tex. Crim. App. 1986); White v. Commonwealth,
79 Va. 611 (1884); State v. Alexander,
521 P.2d 57 (Wash. Ct. App.
1974).
We do not find convincing defendant's argument that the legislative inaction or silence following Mangrella justifies the conclusion that the Legislature approves of that court's reading of N.J.S.A. 2C:44-4b. Because Mangrella involves discretionary sentence enhancement of persistent offenders rather than mandatory enhancement of a sentence under the Graves Act, the Legislature might not have found that decision inconsistent with the overall sentencing policy of the Code. When the Graves Act was enacted by L. 1981, c. 31, § 1, effective February 12, 1981, the Legislature at the same time amended N.J.S.A. 2C:44-3 to proscribe the use of the persistent offender statute when sentencing a Graves Act offender. That statutory amendment directs that if a defendant "is being sentenced for commission of any of the offenses enumerated in N.J.S. 2C:43-6c ..., the court
shall sentence the defendant to an extended term as required by
N.J.S. 2C:43-6c." N.J.S.A. 2C:44-3. (emphasis added) Because
the Legislature had decreed five years before Mangrella was
decided that the discretionary persistent offender statute may
not be used when sentencing a Graves Act offender, there was no
need for the Legislature to react to Mangrella.
Beyond that, Mangrella relies on the holdings in Bey and
Biegenwald to support its interpretation of N.J.S.A. 2C:44-4b.
The Legislature responded immediately to Bey's and Biegenwald's
literal application of N.J.S.A. 2C:44-4b by amending the
definition of a prior murder as an agravating factor in a capital
case. With that change, a prior murder became final "when
sentence is imposed and may be used as an aggravating factor
regardless of whether it is on appeal." L. 1985, c. 178
(effective June 10, 1985). Given the limited application of
Mangrella to discretionary extended terms, the Legislature could
have found a rational basis not to change the law. In addition,
"[t]he Legislature need not explicitly amend a statute ... every
time [a court] takes action inconsistent with it in order to
avoid the implication that the Legislature concurs." State v.
Cannon,
128 N.J. 546, 566-67 (l992). The Court has noted in
other contexts that "legislative inaction has been called a `weak
reed upon which to lean' and a `poor beacon to follow' in
construing a statute." G.E. Solid State, Inc. v. Director, Div.
of Taxation,
132 N.J. 298, 313 (1993) (citations omitted);
Amerada Hess Corp. v. Director, Div. of Taxation,
107 N.J. 307,
322 (1987) (citations omitted), aff'd,
490 U.S. 66,
109 S. Ct. 1617,
104 L. Ed.2d 58 (1989). We find persuasive a comment of
Justice Scalia:
[O]ne must ignore rudimentary principles of political
science to draw any conclusions regarding [current
Congressional] intent from the failure to enact
legislation. The "complicated check on legislation,"
The Federalist No. 62, p. 378 (C. Rossiter ed. 1961),
erected by our Constitution creates an inertia that
makes it impossible to assert with any degree of
assurance that congressional failure to act represents
(1) approval of the status quo, as opposed to (2)
inability to agree upon how to alter the status quo,
(3) unawareness of the status quo, (4) indifference to
the status quo, or even (5) political cowardice....
[Johnson v. Transportation Agency, Santa Clara County,
480 U.S. 616, 671-72,
107 S. Ct. 1442, 1472,
94 L. Ed.2d 615, 656 (1985) (Scalia, J., dissenting).]
Here, as in the past, "[W]e find the doctrine of probable
legislative intent a more reliable guide than the so-called
doctrine of legislative inaction." Amerada Hess Corp., supra,
107 N.J. at 322. In determining how the Legislature would
resolve the interaction between N.J.S.A. 2C:44-4b and the Graves
Act mandatory extended-term provision, we find far more
compelling the clear legislative intent underlying the Graves Act
than we find the Legislature's inaction following Mangrella.
Having considered the legislative intent underlying both the
Graves Act and N.J.S.A. 2C:44-4b, we reject the overly literal
construction of N.J.S.A. 2C:44-4b urged by defendant. As Justice
Stein stated for a unanimous Court in State v. State Troopers
Fraternal Ass'n,
134 N.J. 393, 417-18 (1993), the literal meaning
of a statute should not be applied when the Court is
thoroughly convinced that the Legislature did
not intend the [statute] to apply to the
State Police, and we now so hold. Our
conclusion is reinforced by Judge Learned
Hand's classic admonition that "[t]here is no
surer way to misread any document than to
read it literally." Guiseppi v. Walling,
144 F.2d 608, 624 (2d Cir. 1944). As we observed
in Schierstead v. Brigantine, [
29 N.J. 220
(1959)], "statutes are to read sensibly
rather than literally and the controlling
legislative intent is to be presumed as
`consonant to reason and good discretion.'"
29 N.J. at 230,
148 A.2d 591 (quoting Morris
Canal & Banking Co. v. Central R.R. Co.,
15 N.J. Eq. 419, 428 (Ch. 1863)). . . . We
cannot conceive that the Legislature intended
the discipline amendment to apply to only the
State Police and to no other major police
department in the State.
In the present case, we cannot conceive that the Legislature
intended N.J.S.A. 2C:44-4b to prevent the imposition of an
extended term mandated by N.J.S.A. 2C:43-6c while the prior
Graves Act conviction was pending on appeal or before the time
for such an appeal expired, and we now so hold. We are persuaded
that insofar as the Graves Act is concerned, the purpose of
N.J.S.A. 2C:44-4b is to prevent the enhanced sentence from
becoming final before completion of the direct appeal in the
prior Graves Act conviction or before the time for that appeal
has expired.
That interpretation is consistent with the Code's foremost
policy "of assuring severity [of sentence] and deterrence" of
those repeat offenders who use or possess guns during the
commission of certain serious offenses such as robberies and
rapes. Cannon, supra, 128 N.J. at 571. Towards that end, the
Legislature has directed that the Criminal Code be interpreted to
further the general purposes of extended-term sentencing as
defined in N.J.S.A. 2C:1-2b, including the insurance of "the
public safety by preventing the commission of offenses through
the deterrent influence of sentences imposed and the confinement
of offenders when required in the interest of public protection."
N.J.S.A. 2C:1-2b(3); State v. Dunbar,
108 N.J. 80, 90-91 (l987).
Under our holding, a defendant is not allowed "to escape the
statutorily-required higher penalty because he or she has not yet
been convicted, [based on a literal reading of N.J.S.A. 2C:44-4b], either because of strategic maneuvering by counsel or
because of the vicissitudes of the court docket, [which creates]
for defendants a windfall not envisioned by the Legislature."
Hawks, supra, 114 N.J. at 366-67. "The sentence, as corrected,
imposes a valid punishment for an offense instead of an invalid
punishment for that offense." Bozza v. United States,
330 U.S. 160, 166-67,
67 S. Ct. 645, 649,
91 L. Ed. 818, 822 (1947).
We reject that part of the Appellate Division holding that
concluded that N.J.S.A. 2C:44-4b precludes the imposition of a
mandatory extended term at the initial sentencing if an appeal is
pending on the prior Graves Act conviction or if the time to
appeal has not expired. Mangrella, supra, 214 N.J. Super. at
445, is inapposite to an inquiry concerning the mandatory
sentencing provisions of the Graves Act. It does not presage a
rule that applies to Graves Act cases.
Our holding requires the trial court to impose a provisional
sentence. Such a sentence is provisional in the sense that if
the prior Graves Act conviction is reversed on appeal, the
mandatory extended term must be vacated in order to vindicate the
purpose of N.J.S.A. 2C:44-4b.
Provisional sentences as authorized dispositions within the
meaning of N.J.S.A. 2C:43-2 are not novel in New Jersey. They
have been established both under the Code as well as independent
of legislative enactments. One example of a legislatively
created provisional sentence is N.J.S.A. 2C:44-1f(2), which
permits the State to file an appeal within ten days of imposition
of sentence if a defendant is sentenced on a first- or second-degree offense to probation, a noncustodial term, or to a term
authorized for an offense one degree lower than the crime for
which defendant was convicted. See State v. Sanders,
107 N.J. 609 (l987); State v. Williams,
203 N.J. Super. 513 (App. Div.
l985); State v. Watson,
183 N.J. Super. 481 (App. Div. l982). In
this context, the State is permitted to seek an increase in the
sentence.
A second example of a legislatively created provisional
sentence is N.J.S.A. 2C:47-4c, which allows the Commissioner of
the Department of Corrections to seek a reduction in a
discretionary sentence. State v. Chapman,
95 N.J. 582 (l984).
Although the scope of this modification of sentence is limited
under N.J.S.A. 2C:47-4c, it nonetheless makes the original
sentence provisional because the statute creates the procedure
for reducing the sentence after a portion of it has been served
at the Adult Diagnostic and Treatment Center in Avenel. See
Chapman, supra, 95 N.J. at 592-94. That statutory procedure is
similar to applications for change of sentences under Rule 3:21-10.
A third type of provisional sentence is found in the
Pretrial Intervention Program (PTI), which was created initially
by the Supreme Court through its rule making power, N.J. Const.
(1947) art. VI, § 2, ¶ 3; R. 3:28, and later by the Legislature,
N.J.S.A. 2C:43-12 to -22. See State v. Nwobu,
139 N.J. 236, 245
(1995).
The clearest example of provisional sentencing without
express legislative approval that is analogous to the one we
establish today results from the Intensive Supervision Program,
known as ISP. That program permits a panel of judges to reduce
the custodial sentence of a defendant found to be qualified for
the program. ISP "is a sentencing alternative that removes
carefully selected defendants from prison and releases them into
the community under standards of supervision." Cannon, supra,
128 N.J. at 549. The goals of ISP "are reduction in prison
overcrowding, appropriate punishment of the offender, and
rehabilitation." Ibid. Cannon limits admission into ISP to non-first- and non-second-degree offenders, 128 N.J. at 548, but this
limitation was modified by L. 1993, c. 123, § 2a(3), to permit
some second-degree offenders to be considered. State v. McPhall,
270 N.J. Super. 454, 457 (App. Div.), certif. denied,
137 N.J. 309 (1994).
Not only was ISP initiated in l983 without legislative
approval, but it was started without a court rule formalizing it.
State v. Clay,
230 N.J. Super. 509, 512-13 (App. Div. 1989),
aff'd o.b.,
118 N.J. 251 (l990). The program was instituted by
the Supreme Court pursuant to an order signed by the Chief
Justice dated May 26, 1983, relying on Article VI, Section II,
Paragraph 3 of the 1947 New Jersey Constitution. Id. at 515-16.
Rule 3:21-10(b)(2) was relaxed; Rule 3:21-10(e) and Rule 3:21-10(b)(5) were added to permit motions for admission into ISP,
effective September 1983. Thereafter, there was legislative
approval through budgetary appropriations. Cannon, supra, 128
N.J. at 562-63; Clay, supra, 230 N.J. Super. at 512, 516-17.
Because all persons admitted into the program are conditionally
released from a custodial sentence, those candidates are
recipients of a provisional sentence.
Based on this Court's power to administer the criminal
justice system, State v. Abbati,
99 N.J. 418, 432-33 (1985), we
exercise that power to establish provisional sentencing of
subsequent Graves Act offenders regardless of the appeal status
of the prior Graves Act conviction. When a defendant before the
trial court is exposed to a Graves Act mandatory extended term,
the trial court shall impose the extended term. However, should
the prior conviction be reversed on appeal subsequently, the
trial court shall, on motion by a defendant pursuant to Rule
3:21-10(b)(4) or Rule 3:22-2, amend the extended-term sentence to
an ordinary Graves Act sentence.
The rule we announce today conserves judicial resources. A
review of statistical data for the 1991, 1992, and 1993 court
terms of the Appellate Division reveals that the rate of reversal
in criminal cases was approximately thirteen percent. Assuming
the same approximate rate applies to Graves Act convictions, that
rate suggests there will be few applications for modification of
the sentence based on reversal of the first Graves Act
conviction. The procedure adopted by the Appellate Division
would have the opposite effect.
Defendant argues further that any increase in his sentence from the ordinary term imposed on his first resentencing to the extended term imposed on his second resentencing constitutes a due-process violation. He claims that it is fundamentally unfair for him to receive the sentence originally imposed after succeeding in having that very sentence declared illegal by the Appellate Division. Although defendant concedes he suffered no double- jeopardy violation, his fundamental-fairness argument is intertwined with double-jeopardy principles. State v. Gallegan, 117 N.J. 345, 355 (1989). He also claims a due-process deprivation on the ground that the ultimate imposition of the extended term was made possible only by virtue of the trial court's error in imposing the extended term in the first instance. Finally, defendant argues that due process requires
that the status of his prior Graves Act conviction be "frozen in
time" as of the date of the original sentencing. That argument
presupposes that N.J.S.A. 2C:44-4b precluded imposition of the
extended term at that time.
We find that defendant has suffered no deprivation of his
constitutional rights as a result of the imposition of the
mandatory extended term on his second resentencing.
This Court has held that a defendant who appeals his
substantive conviction along with the corresponding sentence has
no legitimate expectation of finality in either the underlying
conviction or the corresponding sentence. Rodriguez, supra, 97
N.J. at 263. The holding in Rodriguez significantly narrowed the
scope of State v. Ryan,
86 N.J. 1, 8-9, cert. denied,
454 U.S. 880,
120 S. Ct. 363,
70 L. Ed.2d 190 (1981), which held that
principles of double jeopardy foreclose the imposition of an
increased prison sentence after a defendant has commenced serving
a portion of that sentence. In Rodriguez, the Court instructed
that "Ryan can be understood to hold that the commencement of
sentence coupled with the defendant's expectation of finality in
his original underlying conviction and sentence combined to raise
a constitutional bar against an increase in that sentence."
Rodriguez, supra, 97 N.J. at 270 (citing Ryan, supra, 86 N.J. at
9-10). Hence, after Rodriguez, the critical inquiry in assessing
whether principles of due process and double jeopardy bar
imposition of a sentence greater than one initially imposed is
whether the defendant maintains a "legitimate expectation of
finality" with respect to the sentence. See United States v.
DiFrancesco,
449 U.S. 117,
101 S. Ct. 426,
66 L. Ed.2d 328
(1980) (holding that increase in original sentence was
constitutional because defendant had no expectation of finality
in sentence where statute specifically authorized sentence to be
increased); North Carolina v. Pearce,
395 U.S. 711,
89 S. Ct. 2072,
23 L. Ed.2d 656 (1969) (holding that increase in sentence
following remand and retrial constitutional because defendant had
no expectation of finality in sentence when he appealed
underlying conviction as well as sentence); Sanders, supra, 107
N.J. at 619 (noting that under DiFrancesco, supra, 449 U.S. at
117, 101 S. Ct. at 426, 66 L. Ed.
2d at 328, "the touchstone of
the double jeopardy analysis lies in the expectation of finality
that a defendant vests in his sentence").
Pennsylvania v. Goldhammer,
474 U.S. 28,
106 S. Ct. 353,
88 L. Ed.2d 183 (l985), reaffirmed the recognition in DiFrancesco
that "the decisions of this Court `clearly establish that a
sentenc[ing in a noncapital case] does not have the qualities of
constitutional finality that attend an acquittal.'" Id. at 30,
106 S. Ct. at 353-54, 88 L. Ed.
2d at 186 (quoting DiFrancesco
supra, 449 U.S. at 134, 101 S. Ct. at 436, 66 L. Ed.
2d at 328).
More recently, the Supreme Court again recognized the continuing
validity of DiFrancesco in its decision in Caspari v. Bohlen, 510
U.S. __,
114 S. Ct. 948, 954-56,
127 L. Ed.2d 236, 246-49
(l994). The Court in Caspari declined to rule on the specific
question whether the double-jeopardy clause applies to noncapital
sentencing proceedings and the related question of whether the
persistent-offender proceeding involved in that case was
sufficiently trial-like to invoke double-jeopardy protections
under Bullington v. Missouri,
451 U.S. 430,
101 S. Ct. 1852,
68 L. Ed.2d 270 (l981) (holding that double-jeopardy clause limits
the State's power to subject defendant to successive capital
sentencing proceedings). Nonetheless, the Court made this
telling comment:
Applying the Double Jeopardy Clause to
successive noncapital sentencing is not such
a groundbreaking occurrence. Persistent-offender status is a fact objectively
ascertainable on the basis of readily
available evidence. Either a defendant has
the requisite number of prior convictions or
he does not. Subjecting him to a second
sentencing proceeding at which the State has
the opportunity to show those convictions is
not unfair, and will enhance the accuracy of
the proceeding by ensuring that the
determination is made on the basis of
competent evidence.
[Caspari, 510 U.S. at __, 114 S. Ct. at 956-57, 127 L. Ed.
2d at 250.]
We take that comment as an indication that the Supreme Court
generally perceives no double-jeopardy problems with a
resentencing under a repeat- offender statute.
In the present case, defendant challenged the underlying
conviction as well as the sentence on direct appeal. Under
DiFrancesco, Rodriquez, and Ryan, defendant had no legitimate
expectation of finality with respect to either the conviction or
the sentence. See Rodriguez, supra, 97 N.J. at 271. Defendant
is mistaken in his assertion that the holding of Rodriguez
applies only where the appeal of the underlying conviction is
successful. We hold that the outcome of an appeal of the
underlying conviction is not highly relevant, if relevant at all,
to a determination whether such an appeal attacking both the
underlying convictions and sentence negates any legitimate
expectation of finality on the part of a defendant. Ibid. What
was sought by the appeal, rather than the relief, if any,
obtained, defines what constitutes a legitimate expectation of
finality. See State v. Baker,
270 N.J. Super. 55, 76-77 (App.
Div.), aff'd o.b.,
138 N.J. 89 (1994). To hold otherwise would
mean the appeal was taken without any hope of changing the
underlying conviction or sentence. Here, not only was there an
expectation of success on appeal, but defendant succeeded in
overturning the sentence, albeit improperly.
Moreover, the original sentence, a Graves Act extended term,
was modified pursuant to the remand order of the Appellate
Division dated April 15, 1992. Consequently, "[t]he trial
court's action in this respect reflected its reaction to that
determination. Since we find that the Appellate Division erred,
it is appropriate that the initial sentencing determinations,
which we find were proper, be reinstated." Chapman, supra, 95
N.J. at 596.
We also find unpersuasive defendant's reliance on State v.
Vasquez,
129 N.J. 189 (1992), and State v. Baylass,
114 N.J. 169
(1989), in support of his argument for "freezing in time" his
prior Graves Act conviction. Vasquez and Baylass recognize that
when seeking to vacate the initial provisional sentence of
probation and to resentence to a custodial term following a
violation of probation, the only aggravating factors the court
may consider are those that existed at the time of the
provisional sentencing. Vasquez, supra, 129 N.J. at 206;
Baylass, supra, 114 N.J. at 176. The aggravating factors are
used to determine the in-out decision as well as the range of the
sentence. But aggravating factors do not play a role in
determining whether a prior Graves Act offense exists. A prior
Graves Act conviction is independent of the circumstances
surrounding a subsequent Graves offense for which a defendant
stands before the sentencing court. A prior Graves Act
conviction is merely a statutorily designated trigger for the
imposition of the mandatory extended term on a subsequent
unrelated Graves Act conviction.
The rule we adopt today is to be given limited retroactive application. It shall apply to this case and all cases in which sentencing on the second Graves Act conviction has not yet occurred. It shall also apply in all cases where the defendant has been sentenced on the second Graves Act conviction, but as of the date of this decision, the parties have not exhausted all avenues of direct review on that conviction. Montells v. Haynes, 133 N.J. 282, 295-98 (1993); Coons v. American Honda Motor Co., Inc., 96 N.J. 419, 425 (l984), cert. denied, 469 U.S. 1123, 105 S. Ct. 808, 83 L. Ed.2d 800 (1985); State v. Burstein, 85 N.J.
394, 402-03 (l98l). The trial court will have to decide on a
case-by-case basis whether today's ruling has altered a
defendant's legitimate sentence expectation where negotiated
pleas are involved. In those instances, the court must fashion
the appropriate relief.
In sum, we hold that the trial court's imposition of the Graves Act mandatory extended term in the first instance was legal, and that imposition of the mandatory extended term on defendant's second resentencing was not fundamentally unfair to him. The mandatory extended term must be imposed at the initial sentencing proceeding, subject to being vacated if the prior Graves Act conviction is reversed on appeal. Our holding shall be given limited retroactive application.
The judgment of the Appellate Division is affirmed.
Chief Justice Wilentz and Justices Handler, Pollock, and
Garibaldi join in this opinion. Justice O'Hern has filed a
separate dissenting opinion in which Justice Stein joins.
Justice Stein has filed a separate dissenting opinion in which
Justice O'Hern joins.
SUPREME COURT OF NEW JERSEY
A-
59 September Term 1994
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSEPH LEON HALISKI,
Defendant Appellant.
O'HERN, J., dissenting.
In 1990 the trial court imposed an illegal, extended
sentence under the mandatory extended-term provisions of the
Graves Act. N.J.S.A. 2C:43-6c. (Commit certain crimes with a
gun twice and you will go to prison for a very long time.) On
defendant's appeal to the Appellate Division, the State
acknowledged that the sentence was illegal when imposed. Rather
than correct that judicial error, this Court takes advantage of
an unusual chronology of events to reinstate a sentence that was
illegal when given. In doing so, it designs a system of
temporary sentencing that is neither authorized by law nor
realistically required to impose a sentence that is appropriate
for a criminal such as Haliski.
"As a general rule of statutory construction, we look first to the language of the statute. If the statute is clear and unambiguous on its face and admits of only one interpretation, we
need delve no deeper than the act's literal terms to divine the
Legislature's intent." State v. Butler,
89 N.J. 220, 226 (1982).
There is nothing in the language of the New Jersey Code of
Criminal Justice that authorizes the Court's decision.
We have always followed the language of the Code. In State
v. Hawks,
114 N.J. 359 (1989), we applied the mandatory extended-term provisions of the Graves Act to a defendant who committed
two Graves Act offenses on separate occasions, but was convicted
of the second offense before he was convicted of the first. We
acknowledged the potential for results that might be unfair or
unforeseen when the orders of offense and conviction are
reversed. But we shrugged off those concerns, being obliged to
apply "the legislation as we understand it." Id. at 367. The
Code's definition of a "prior conviction" of a Graves Act crime
does not require that the prior conviction be for a crime
committed prior in time. Had the Code contemplated the temporary
sentencing now suggested by the Court, Justice Clifford's task of
writing the Hawks opinion would have been much easier; the Court
could have fashioned a temporary sentence for the offense second
in time, and increased or decreased it later.
We have always respected the language of the Code even when
we believed that the Legislature might actually agree that
changes should be made. See State v. Cannon,
128 N.J. 546 (1992)
(refusing to allow admission of first- and second-degree
offenders into Intensive Supervision Program because the language
of the Code did not permit it). Even when sound policy
considerations exist, it is not the function of courts to amend
statutes. If legislation needs correction, it is a matter for
the Legislature. "[I]t is simply one of the most basic
understandings of the allocation of governmental powers among the
three branches. The Legislature and the Executive do not decide
cases--even though the Constitution does not say so; the
judiciary does not pass laws." Id. at 560.
The Appellate Division suggested one scheme for assessing
the effect of prior Graves Act convictions on appeal. The Court
has fashioned another. The Legislature itself may have another.
The Attorney General informs us that the State has been able to
live with the interpretation of State