Opinion
DOCKET NO. A-5233-12T4
04-07-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RODNEY BULL, Defendant-Appellant.
Peter T. Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Blum, of counsel and on the brief). Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Grace H. Park, Acting Union County Prosecutor, attorney; Ms. Donnelly, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 90-10-1896 and 90-07-1263. Peter T. Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Blum, of counsel and on the brief). Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Grace H. Park, Acting Union County Prosecutor, attorney; Ms. Donnelly, of counsel and on the brief). PER CURIAM
Defendant Rodney Bull was charged in two separate indictments with unrelated crimes. He was tried, convicted, and sentenced separately on both indictments, receiving extended-term sentences in both cases. However, the offenses charged in both indictments occurred prior to the first sentencing. Defendant's sole argument on appeal is that the second extended-term sentence violates N.J.S.A. 2C:44-5. We agree and vacate that sentence and remand for resentencing.
I.
Union County Indictment Number 90-10-1896 charged defendant with first-degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count two); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count three); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count four); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count five); and third-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(d) (count six). All of the crimes charged in indictment 1896 are alleged to have occurred on April 20, 1990.
Union County Indictment Number 90-07-1263 charged defendant with first-degree robbery, N.J.S.A. 2C:15-1 (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (count three); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count four); third-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(d) (count five); and third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count six). All of the crimes charged in indictment 1263 are alleged to have occurred on April 30, 1990, ten days after the crimes charged in indictment 1896.
Defendant was tried first on indictment 1896, and on March 13, 1991, a jury found him guilty of all counts, except attempted murder. On May 17, 1991, the trial judge sentenced defendant to a discretionary extended term of fifty years with eighteen years of parole ineligibility for the robbery. The convictions for terroristic threats and possession of a weapon for unlawful purposes merged into the robbery. For aggravated assault, defendant received a concurrent term of ten years with five years of parole ineligibility. For unlawful possession of a weapon, defendant received a consecutive term of eighteen months with nine months of parole ineligibility.
On appeal, we held that the unlawful possession of a weapon charge should have merged with the robbery and remanded for entry of an amended judgment. State v. Bull, 268 N.J. Super. 504, 516 (App. Div. 1993), certif. denied, 135 N.J. 304 (1994). The trial judge entered an amended judgment in accordance with our opinion. Thus, the controlling sentence under indictment 1896 is the extended term for robbery (fifty years with eighteen years of parole ineligibility).
Defendant was tried on indictment 1263, and found guilty on June 18, 1992 of second-degree aggravated assault, fourth-degree unlawful possession of a weapon, third-degree possession of a weapon for unlawful purposes, and third-degree terroristic threats.
On October 2, 1992, the trial judge sentenced defendant to a discretionary extended term of twenty years with ten years of parole ineligibility for the aggravated assault. The sentence was to run consecutively to the sentence defendant was serving under indictment 1896. For unlawful possession of a weapon, defendant received a concurrent term of eighteen months. Defendant received a consecutive term of five years for the terroristic threats conviction. The conviction for possession of a weapon for unlawful purposes merged with the assault conviction, but was eventually vacated on appeal. State v. Bull, No. A-3654-93 (App. Div. July 11, 1995) (slip op. at 10-11).
Therefore, under indictment 1263, defendant's extended term plus the consecutive term totaled twenty-five years with ten years of parole ineligibility. When both indictments are aggregated, the total sentence is seventy-five years with twenty-eight years of parole ineligibility.
Defendant filed a motion to correct an illegal sentence, claiming that he impermissibly received two extended terms. His motion was denied, as was his motion for reconsideration. We initially heard defendant's appeal on our excessive sentencing oral argument calendar but ordered that this appeal be heard on our plenary calendar.
On appeal, defendant raises one point:
BULL WAS DEPRIVED OF DUE PROCESS BY THE ILLEGAL IMPOSITION OF CONSECUTIVE EXTENDED TERMS FOR TWO OFFENSES THAT WERE COMMITTED BEFORE HE WAS SENTENCED ON EITHER. U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, PARA. 1; N.J.S.A. 2C:44-5a(2), b(1).
II.
N.J.S.A. 2C:44-5 states in pertinent part:
a. Sentences of imprisonment for more than one offense. When multiple sentences of imprisonment are imposed on a defendant for more than one offense . . . such multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence, except that:
. . . .
(2) Not more than one sentence for an extended term shall be imposed.
. . . .
b. Sentences of imprisonment imposed at different times. When a defendant who has
previously been sentenced to imprisonment is subsequently sentenced to another term for an offense committed prior to the former sentence, other than an offense committed while in custody:
(1) The multiple sentences imposed shall so far as possible conform to subsection a. of this section[.]
In State v. Hudson, 209 N.J. 513, 517 (2012), the Court, for the first time, addressed the applicability of N.J.S.A. 2C:44-5(b)(1):
Subsection b's plain language applies subsection a's bar against imposing a sentence comprised of more than one extended term for the conviction of an offense which was committed prior to the imposition of the defendant's current extended-term sentence but for which defendant is being sentenced after the imposition of the first extended sentence.Thus, the "plain meaning" of subsection b prohibits a second extended-term sentence for an offense committed prior to the entry of the extended-term sentence currently being served. State v. McDonald, 209 N.J. 549, 555 (2012).
Additionally, subsection b's "so far as possible" language means that the prohibition against multiple extended-term sentences is the default "unless it is not possible to conform the sentence to subsection a's prohibition against multiple extended terms." Hudson, supra, 209 N.J. at 534. For example, in a situation where a mandatory extended-term sentence must be imposed, then the general prohibition in subsection b is overridden. Id. at 535.
In Hudson, the defendant was indicted in connection with offenses committed against two victims. Id. at 518. The defendant moved to sever the counts because of the two victims and was subjected to two trials and sentencing proceedings. Ibid. After the first trial, the court sentenced the defendant to an extended term. Id. at 518-19. After the second trial, the court found the defendant to be a persistent offender and imposed a second extended-term sentence. Id. at 520-21. Adhering to the plain meaning of N.J.S.A. 2C:44-5(b)(1), the Court held that it was legal error to impose the second extended-term sentence given the timing of the offenses and the sentencing proceeding. Id. at 537.
Similar to the facts in Hudson, defendant was sentenced to a second extended term on an offense that occurred prior to the imposition of the first sentence. By applying the plain language of N.J.S.A. 2C:44-5(b)(1), defendant's second extended-term sentence should not have been imposed.
The State concedes that Hudson precludes defendant's second extended-term sentence. Rather, the State argues that Hudson should not be given retroactive effect. We disagree.
The threshold inquiry for a retroactivity analysis is whether a new rule of law was announced. State v. Feal, 194 N.J. 293, 307 (2008). For there to be a new rule of law, there must be a "sudden and generally unanticipated repudiation of a long-standing practice." State v. Afanador, 151 N.J. 41, 58 (1997) (quoting State v. Cupe, 289 N.J. Super. 1, 12 (App. Div.), certif. denied, 144 N.J. 589 (1996)). Additionally, a rule of law is new if past precedent was prone to debate among reasonable minds. State v. Gaitan, 209 N.J. 339, 365 (2012). If a new rule is not at issue, then a retroactivity analysis is unnecessary because the rule will be construed as "one that has always applied." Feal, supra, 194 N.J. at 308 (quoting State v. Colbert, 190 N.J. 14, 22 (2007)).
In Afanador, the Court held that a decision interpreting a statute did not promulgate a new rule of law. Afanador, supra, 151 N.J. at 57. Likewise, the Court in Hudson merely interpreted N.J.S.A. 2C:44-5 and its application to multiple extended-term sentences. The Court's interpretation of the statute, which was first enacted in 1978, can hardly be considered a "new rule."
The State argues that the Hudson Court did announce a new rule because it parted from past precedent concerning the imposition of multiple extended-term sentences. The State relies on State v. Reldan, 231 N.J. Super. 232 (App. Div. 1989) and State v. Williams, 299 N.J. Super. 264 (App. Div. 1997), arguing that they interpreted N.J.S.A. 2C:44-5 differently from Hudson, thus the existing precedent was prone to debate. Those cases, however, never addressed the applicability of subsection b. Indeed, in Reldan, the defendant's second offense occurred while serving the sentence for his first offense, thus subsection b would be inapplicable because the second sentence was not for an offense committed prior to the first sentence. Reldan, supra, 231 N.J. Super. at 234. Similarly, Williams does not cite to subsection b and instead relies on the opinion in Reldan, which is inapplicable to subsection b. Williams, supra, 299 N.J. Super. at 272-73.
Prior to Hudson, the Court had not addressed the applicability of subsection b. Hudson, supra, 209 N.J. at 517. Thus, it is difficult to conclude that there was any sort of meaningful debate surrounding the applicability of subsection b such that the Court's decision in Hudson amounted to a "sudden and generally unanticipated repudiation of a long-standing practice." Afanador, supra, 151 N.J. at 58.
The State provides no support for its contention that a retroactive application would flood the courts with resentencing requests. Subsection b applies to narrow situations in which a defendant was sentenced to a second extended term for an offense committed prior to the first sentence. There is no reason to believe that there exists such a large number of defendants in these narrow circumstances such that the administration of justice will be impaired.
The second extended-term sentence is vacated and the matter remanded for resentencing. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION