State v. Haliski

v. JOSEPH JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW HALISKI, LEON DEFENDANT-APPELLANT. Argued January April 1995 Decided 1995. Kirsch,

Stephen Defender, argued Deputy W. Assistant Public (Susan Reisner, appellant Defender, the cause for L. Public attorney). Henderson, General, Deputy Attorney argued

Carol M. (Deborah Poritz, respondent Attorney cause T. General Jersey, attorney; Berg, Deputy Attorney New Richard W. Gener- brief). al, on the letter lieu of COLEMAN, opinion of the Court was delivered Justice.

The central issue in Act this is whether a second Graves offender be sentenced extended term of imprisonment pending while the first conviction is appeal appeal expired. or the time to not A conviction has second issue whether defendant have his in- sentence following creased to an extended sentence affirmance of the first violating Graves Act principles conviction without fundamental fairness.

I jury guilty first-degree robbery, A found defendant a viola- hearing In presentence tion N.J.S.A. 2C:15-1. conducted pursuant 2C:43-6d, to N.J.S.A the trial court found that defen- dant was during armed with a firearm the commission of the robbery subject and was therefore mandatory to a extended-term Act, sentence. under the Graves N.J.S.A 2C:43-6c. The court mandatory found that a prison extended required term was be- cause previously defendant had been convicted of another armed robbery with a firearm. judge The trial sentenced defendant on 22, 1990, June mandatory to a fifty years extended term of with years parole ineligibility. seventeen The extended sentence run was to fifteen-year prison consecutive to a term with five years parole ineligibility imposed for his first Graves Act offense, conviction. The first Graves Act which made defendant eligible term, for the appeal was on when defendant was sentenced on June 1990.

In unpublished opinion an April dated Appellate Division affirmed robbery defendant’s second conviction. The court, however, vacated the sentence and remanded the matter for resentencing Deputy based on the Attorney impression General’s that defendant “must be resentenced because he was sentenced as a second Graves Act offender appeal before the time to his expired.” conviction had peti We denied defendant’s tion for certification. 130 N.J. remand,

On the trial court July resentenced defendant on ordinary prison to an years term of five-year fifteen awith parole ineligibility. term of The sentence was made to run consecutive to the imposed for the first Graves Act robbery. At the resentencing, time of the judge appar- the trial ently Appellate was unaware the Division had affirmed the first eighty-seven days Graves Act conviction unreported earlier in an April Indeed, decision dated 1992. counsel for defendant judge, informed the “I believe that pending is still even as speak.” criticism, we intending any Without we note that this oversight may by have been caused the fact that neither of the Appellate other, Division decisions though mentioned the even both were judges day apart. decided the same and filed one pursuant the a motion to Rule On October State filed 3:21-10(b)(4) ordinary the term sentence on the second to vacate robbery. alleged illegal Act The the sentence was Graves State Appellate already imposed time the Division it was because petition and no had the first Graves Act conviction affirmed Paladino, on had been filed. The relied certification State (App.Div.1985), for its N.J.Super. A .2d 562 any illegal is correctable at time. assertion that an sentence legitimate expectations no Defendant concedes that he could have finality illegal granted in an sentence. The trial court imposed original extended term. State’s motion and only legal Defendant concedes that the sentence as of the also imposed the one on resentencing time of that second was based the State’s 9 motion. October Appellate reimposition manda

The Division affirmed the tory N.J.Super. term. 273 A.2d 549 that majority opinion ruled second Graves Act prior pending appeal, offender whose Graves Act conviction initially impose ordinary prison the court must an term because to directs that a conviction is not be considered N.J.S.A. 2C:44-4b expired.” “prior” before “the time has Id. at majority once A.2d 549. The further held that Graves affirmed, Act is entitled have the conviction is the State sentence to an extended term. Ibid. The court rea increased ordinary illegal by rendered the affir soned sentence is conviction, an illegal mance of Act sentence Ibid, 3:22-2(c)); may any (citing Rule be corrected at time. Kirk, (App.Div.1990)). The N.J.Super. correcting illegal court found that sentence did not violate legislative in view of the considerations of fundamental fairness mandate. disagreed concurring opinion, Judge

In a with the rule of Stern majority. N.J.Super. at law announced statutory authority proposition He no for the 549. found legal later be to an ordinary Graves increased following extended term an prior affirmance of a Graves Act conviction. any authority Nor did he find concluding that an imposed subject extended term subsequent be to a decrease 162, should the appeal. conviction be reversed on Id. at persuaded A.2d 549. He was language that the clear of N.J.S.A prohibits 2C:44-4b considering prior judgment court from as a conviction for Graves Act purposes extended-term if there is an appeal pending, or the time to expired. has not He expressed Legislature, the view that the Judiciary, not the should apparent ambiguity address the statutory the scheme. Id. at 163, A .2d 549. though Judge disagreed

Even Stern with the rule announced decision, majority judgment he concurred in the of the court imposition based on his conclusion that of the Act presented extended term under the circumstances did not violate due-process double-jeopardy rights. defendant’s or Id. at Relying A.2d 549. Rodriguez, on State v. 97 N.J.

A.2d 408 he reasoned that because initial defendant’s appeal challenged sentence, the conviction itself as well as the legitimate expectation defendant had ho finality respect with N.J.Super. Hence, his sentence. 273 at 641 A .2d 549. majority concurring opinions agreed imposition term, mandatory once the conviction had been affirmed, infringe did not rights. defendant’s constitutional Id. certification, granted 641 A.2d 549. We A.2d 139 imposed, reject We affirm the sentence but we procedure approved by Appellate Division.

II two requires This case us to resolve the tension between statutes, 2C:44-4b, touch N.J.S.A. 2C:43-6c and N.J.S.A. which upon legislative require impris intent to terms repeat onment for possess some offenders who use or firearms during the commission of certain offenses. Those statutes must analyzed against backdrop principle be of the well-established rehabilitation, approach

that instead of “the Graves is deter through promise rence imprisonment.” State v. Des Mar ets, Stewart, (1983); N.J. A.2d 1074 see also State v. (1984) (stating that Graves Act crime, criminals”). “seeks to not to deter rehabilitate The Graves Act directs that under some circumstances a defen- required to dant who has a Graves Act conviction must be serve an sentence. The Graves extend- 2C:43-6c, provision, provides: ed-sentence N.J.S.A. A who has been convicted of an enumerated offense this subsection person by during and a who used or firearm its commission, commission possessed attempted flight involving or therefrom and who has been convicted of an offense previously the use or of a firearm as defined in shall be possession 2C:44r-3d., by sentenced notwithstanding the court to an extended term as 2C:43-7c., authorized that by extended terms are the court. with ordinarily discretionary “prior N.J.S.A defines 2C:44-4b conviction of a crime” as follows: adjudication jurisdiction a An court of that by the defendant commit- competent although

ted a a ei-ime constitutes sentence or prior conviction, the execution thereof was that the time to has and that the suspended, provided appeal expired ground defendant was not of innocence. pardoned argues plain language that the of Defendant N.J.S.A 2C:44-4b “prior” pur demands that a conviction cannot be for considered poses of Graves Act enhanced under the unless “the expired.” time to has [that conviction] He claims reading further that supported a literal of N.J.S.A 2C:44-4b is Mangrella, N.J.Super. State v. 214 (App. denied, Div.1986), 107 A.2d N.J. As certif. corollary, Legislature defendant asserts that the failure of the following Mangrella act to amend N.J.S.A. 2C:44-4b is indicative of Legislature’s approval application of that decision’s N.J.S.A. 2C:44-4b. (first

Mangrella sequential chronologically held that convictions judgment) offense required must be the first conviction are not or imposition for discretionary “persis sentence-enhancement as a Id., tent N.J.Super. offender” under N.J.S.A. 2C:44-3a. discretionary In 926. sentence enhancement context, Mangrella judgments also all held that otherwise satisfy requirements 2C:44-3a be considered N.J.S.A sentencing “provided pending appeal right is no or that there appeal.” to direct Ibid. construing statutory provision,

It is well established that in statutory objective courts to fulfill “so far as the must seek legislation proper terms of consideration of the interests Gill, subject fairly permit.” those it will N.J. (1966) Provenzano, (citing A.2d 521 N.J. (1961)). Moreover, be the rule of A.2d 135 “whatever construction, [statutory] goal it is subordinate to the effectuat ing legislative plan gathered the as from the enactment it be ” light history, purpose read full of context.’ Ibid. ‘when its and Vermeulen, 200, 204, (quoting Lloyd v. 22 N.J. 125 A.2d 393 515, (1956)); 500, Roig Kelsey, v. N.J. 641 A.2d 248 accord 135 (1993). (1994); Budzash, 1, 8, v. A.2d 1073 Lesniak 133 N.J. 626 Finally, statutory interpretations it that lead to is axiomatic that Ibid, (citing to be absurd or unreasonable results are avoided. (1958)). 528, 517, Rodriguez, 26 Robson v. N.J. determining N.J.S.A In the interaction between 2C:44- provision, Act we 4b and extended-term the Graves legislative underlying each statute. Fun must examine the intent damentally, part on the of the clear intent the Graves reflects impose mandatory prison who Legislature to terms those offenses. State arm to the commission certain themselves Hawks, 359, 365-66, 554 The v. 114 N.J. A.2d Act is concerned legislative history of the Graves Act indicates the wholly with rehabilita only with and is unconcerned deterrence 122, (1984); White, 128, Ibid.; A.2d 691 98 N.J. tion. Thus, Stewart, A.2d the essential N.J. at 300. supra, 96 certainty and underlying promise Act is that the spirit Graves absolutely indispensable to achiev mandatory prison term of a is during commission of ing of the use of firearms deterrence Hawks, (stating supra, A .2d1330 crimes. See precisely lies deterrent value potency [the Act’s] “the certainty punishment”); Marets, of enhanced supra, Des N.J. at (stating A.2d 1074 “the approach Graves Act through promise deterrence imprisonment”). This case judicial obligation invokes the legislatively enforce a mandated extended term parole ineligibility sentence with protection for the society. Jefimowicz, 152, 162, (1990); Marets, supra, Des 92 N.J. at 455 A. 2d 1074. legislative history of N.J.S.A 2C:44-4b offers little defini guidance. tive statutory provision The former part was original (Code) enactment of the by Code of Criminal Justice L. 1978, 95, 1,1979. September c. effective expressly Its terms were limited to determinations to be made under N.J.S.A. 2C:44-1 (encompassing statutory aggravating factors), mitigating and offenders). (relating persistent N.J.S.A. 2C:44-3a It contained qualification unchanged: which remains “provided that time to expired.” has effective, Before the Code became however, N.J.S.A 2C:44-4b was L. § amended c. September also effective deleting the limitation of its scope to N.J.S.A. 2C:44-1 and 44-3a matters. The Senate Judi ciary Committee’s Statement that accompanied amendatory legislation indicated that N.J.S.A. 2C:44-4 was rewritten “for purposes clarity.” Judiciary Senate Committee Statement to (June 18,1979). Senate Bill No. at 10 It only stated that the significant change recognize was to juris a conviction in another diction that imprisonment authorized in excess of six months. Ibid.

Apart legislative history statutes, from the of the two the Code’s enhancement of multiple sentence for offenders prior based on convictions is not 2C:14-6, uniform. Under N.J.S.A the enhance ment of sentence for a subsequent second or requires sex offender only not subsequent the second or offense follow the first offense chronologically, but also that subsequent the second or offense occur there has been a prior conviction on the after Anderson, offense. 174, 175, N.J.Super. 451 A.2d o.b., (App.Div.1982), 459 A.2d 302 In aff'd

H words, other chronologically sequential offenses and convictions Id., required. are N.J.Super. at 451 A.2d 1326. The special reason for this multiple treatment of sex offenders is the perceived legislative objective of rehabilitating first-time sex of fenders, unless a possessed, firearm was used or in which case the applies. Graves Act contrast,

In chronology of offenses for sentence enhancement of “persistent offender” under important. N.J.S.A. 2C:44-3a is not sequence Thus, of convictions controls. if a conviction on a previous prior offense occurs to the date of on the “subsequent” court, offense then before the “previous offense” requirement Mangrella, has been met. supra, 214 N.J.Super. at 445-46, 519 A .2d purpose setting 926. The discretionary this is punishment. enhancement of

Similarly, bright adopted same line respect has been with mandatory Hawks, extended terms under supra, the Graves Act. N.J. holds that for 2C:43-6c, terms under N.J.S.A. chronological sequence of the Here, too, offenses and the convictions is not relevant. legislative purpose punishment, not rehabilitation. applied

This approach Court a similar in determining whether a prior murder conviction penalty can be used for enhancement in penalty death if appeal. cases that conviction is on In State v. Bey, we held that the use of prior statutory murder conviction as a aggravating factor in the penalty phase capital of a proceeding require prior does not conviction to have been entered before the occurrence of the Rather, capital noted, murder. prior Court “the status of the conviction at the time of penalty phase its intended use—the of the subsequent prosecution Thus, murder determinative.” Ibid. —is chronology significant, provided offense is not prior conviction jury’s occurred before the consideration of the penalty Nevertheless, capital case. Ibid. the Court held that a subject murder conviction that is either on or appeal may aggravating not be used as an factor. Id. at 477 A.2d The Biegen 315. same result was reached in wald, 630, 636-37, response 477 A.2d 318 In to the 640, Biegenwald, 318, Court’s invitation id. at A.2d Legislature dispense require amended to the statute with the appeals ments direct appeal be concluded or to the time expired prior before the aggrava conviction be considered an 2C:11-3c(4)(a) ting 1985, 178). factor. See (codifying N.J.S.A L. c. though Bey Biegenwald Even relied on N.J.S.A. 2C:44r4b preclude prior use aggravating of a murder conviction as an capital right factor in a case appeal before the that conviction final, great lengths became the Court went to to make clear that holding required stake, its rendering was because life was at penalty “profoundly from all penalties.” Biegen different other wald, Ohio, supra, 96 N.J. at (quoting Lockett v. (1978)). 438 U.S. S.Ct. L.Ed.2d addition, profoundly In penalty ordinarily imposed different is by jury Thus, judge. a than a rather a sentence enhanced prior require murder that was not final would retrial of the penalty phase in the event aof reversal of the murder conviction.

Significantly, Biegenwald acknowledged although also 7.05, is § N.J.S.A. 2C:44-4b derived from the Model Penal Code id. at question presented “our resolution is not free from doubt. note that We the Model Penal Code § appears minority 7.05 ... now to be the rule.” Id. at prompted A.2d 318. That Court to observe further that “plausibly N.J.S.A. apply 2C:44-4b could be read to to convictions despite appeal pending.” the fact that a direct Id. at 477A .2d 318. majority jurisdictions construing of courts in other the term 7.05, §

“conviction” used in the Model Penal Code their or state’s comparable enhancement, provision respect with to sentence have pending concluded that on a conviction does not preclude jurisdictions use for its enhancement sentence. These permit also petition defendant to if modification .the

13 See, State, 471 e.g., Prock v. the prior conviction is reversed. State, (Ala.Crim.App.1985); Wright v. 1226 P.2d 519 656 So.2d Appeals, v. (Alaska Ct.App.1983); State ex rel. Corbin Court of Swartz, 516, State v. 315, (1968); Ariz. 103 441 P.2d 544 140 Ariz. State, v. 291 Ark. 379, Birchett 724 (Ct.App.1984); 683 P.2d 315 State, 133, v. 286 Ark. S.W.2d (1987); Glick 689 559 492 S.W.2d Samblad, People Cal.App.3d Cal.Rptr. 801, v. (1985); 211 103 26 (1972); People Clapp, Cal.App.2d (1944); 197, v. 67 153 P.2d 758 Dist., 375, Judicial 192 Colo. People v. District Court Tenth 559 of State, 448 N.E.2d 1052 (Ind.1983); (1977); Maisonet v. P.2d 235 v. Eisminger, 124 Kan. State 464, (1927); State v. 260 P. 661 Heald, Martin, State v. (La.1975); A.2d 290 316 So.2d 740 382 Morlock, People (1926); Mich. 209 N.W. 110 v. (Me.1978); 234 Radi, State, v. State v. (Miss.1982); Jackson 176 418 So.2d 827 remand, (1978), appeal 185 Mont. Mont. 578 P.2d 1169 after Romero, Or.App. State v. (1979); P.2d 1 461 P.2d 318 604 Gallegos, (Utah v. (1969); State Ct.App.1993); P.2d 849 586 Wimmer, review 152 Wis.2d N.W.2d denied, Tipton, N.M. (Wis.1990); N.W.2d 806 cf. (1966) (stating purposes of 419 P.2d 216 that for habitual-offender though statute, plea guilty of a “conviction” even constitutes yet imposed). has not been of courts persuasive reasoning of a number these findWe in District Court majority position. example, For espousing the Dist., supra, Tenth Judicial Supreme P.2d at Court reasoned: Colorado under [as convictions” If were not included “prior convictions might statute], effectively criminal recent convictions be many felony habitual would be inconsistent from the the statute. This clearly operation exempted which to offenders. statute, of the punish with the obvious repeat purpose Supreme Court Similarly, reasoning of the Judicial we find Heald, supra, compelling: in Maine frus- legislative [underlying statute] would be the habitual offender The purpose which later became final if the to convictions only trated statute applied previous judgments. would who’ his conviction the recidivist Indeed, appealed previous notwithstanding that his offender statute, of the habitual additive penal escape utilizing Legislature [in affirmed conviction was on appeal. previous in its language state convicted and sentenced any prison” “had been before are frivolous, in mind that statute] had many appeals offender undoubtedly habitual percentage of reversals is that the in of non-frivolous even the case and, appeals, minimal. 299.] at [382 A .2d Supreme Court persuasive the conclusion also find We Birckett, supra, regarding S.W.2d Arkansas argument: accepting defendant’s practical implications of Adopting matter, would as a result, practical advanced theory appellant criminal being statutes, criminal since the habitual ever able apply rarely including through to seek direct relief, which have numerous avenues defendants do not We and federal habeas 37, corpus petitions. under Rule appeal, petitions urged legislature result by appellant. intended the believe that (1985)).] (quoting 628, 630 State, 307, v. 13 683 S.W.2d [Ibid, Hill Ark.App. only noted, not would appellant’s proposal, that court “Under As delayed, purposes be for enhancement prior use of convictions cases, availing but, foreclosed from many would be in State Id., at 493. their use.” 724 S.W.2d itself of jurisdic healthy minority of in a contrary rule is followed The State, See, e.g., (Fla.Dist.Ct.App. Baxter v. 617 So.2d 338 tions. (1969); Smith, 529, 225 Ga. 1993); 169 787 v. S.E.2d Croker Commonwealth, v. (Ky.1989); 631 Melson v. 772 S.W.2d State, Lewis, 46 Md. (La.Ct.App.1990); Butler v. 564 So.2d 765 Lane, (1980); State v. 642 S.W.2d 935 App. A 416 .2d 773 Estes, 214 238 Neb. (Mo.Ct.App.1982); State v. N.W.2d State, (1927); 208, 156 N.E. App. v. Ohio (1991); Staniforth (1938); State, Jones v. 63 Okla.Crim. 77 P.2d 757 Morse State, v. Common White (Tex.Crim.App.1986); 711 N.W.2d 634 Alexander, wealth, Wash.App. (1884); Va. P.2d 57 Ill legis- that the convincing argument defendant’s do not find We Mangrella justifies the conclu- following inaction or silence lative reading of approves of that court’s Legislature sion that Mangrella involves discretionary N.J.S.A. 2C:44-4b. Because manda- rather than persistent offenders enhancement tory Act, enhancement of a Legis- sentence under the Graves might lature not have found that decision inconsistent with the sentencing policy overall of the Code. When the Graves Act was § enacted L. February c. effective Legislature at the same time pro- amended N.J.S.A 2C:44-3 to persistent scribe the use of the sentencing offender statute when a Graves Act statutory offender. That amendment directs that if a being defendant “is any sentenced for commission of ..., offenses enumerated in N.J.S. 2C:43-6c the court shall sen- tence the defendant to an required by extended term as N.J.S. added). 2C:43-6c.” (emphasis N.J.S.A. 2C:44-3. Because the Legislature years had decreed Mangrella five before was decided discretionary persistent that the may offender statute not be used offender, when a Graves Act there was no need for the Legislature Mangrella. to react to that,

Beyond Mangrella holdings Bey relies on the and Biegenwald support interpretation its of N.J.S.A 2C:44-4b. Legislature responded immediately Bey’s Biegen and application wald ’s literal by amending N.J.S.A 2C:44-4b definition of a aggravating murder as an capital factor change, case. With that murder became final “when imposed sentence is aggravating be used as an factor (effective regardless appeal.” whether it is on L. c. 178 1985). 10, application June Given the Mangrella limited to terms, discretionary Legislature could have found a change addition, rational basis not Legisla to the law. In “[t]he explicitly ture need not every amend a statute ... [a time court] takes action in implication inconsistent with it order to avoid the Cannon, Legislature 546, that the concurs.” State v. 128 N.J. (1992). 566-67, 608 A.2d 341 The Court in has noted other “legislative contexts that inaction has been a called ‘weak reed upon ‘poor which construing to lean’ and a beacon to in follow’ State, Director, Taxation, statute.” G.E. Solid Inc. v. Div. 132 (1993) (citations omitted); N.J. 625 A.2d 468 Amerada Director, Taxation, 307, 322, Corp. Hess v. Div. 526 (1987) (citations omitted), A.2d aff'd, 1029 490 U.S. 109 S.Ct. 16 persuasive L.Ed.2d 58 We find comment of

Justice Scalia: ignore [O]ne must science to draw rudimentary conclu principles political any Congressional] regarding legislation. sions [current to intent from the enact failure (C. legislation,” The check No. “complicated Federalist Rossiter p. 1961), ed. erected our Constitution creates an it inertia makes to impossible degree (1) congressional assert with of assurance that failure to act any represents (2) agree as to approval status to how opposed to alter quo, inability upon (3) (4)

the status unawareness of the status indifference to the quo, status quo, quo, (5) cowardice____ or even political Agency, [Johnson v. Santa Clara 480 U.S. Transportation County, 616, 671-72, (1987) (Scalia, dissenting).] S.Ct. L.Ed.2d J., Here, past, as in probable “[W]e find the doctrine of legislative guide intent a more reliable than the so-called doctrine legislative supra, Amerada Corp., inaction.” Hess 107 N.J. at 322, 526 In determining Legislature A.2d 1029. how the would resolve the between interaction N.J.S.A and the 2C:44-4b Act mandatory provision, extended-term find far compel we more ling the legislative underlying clear intent the Graves Act than we Legislature’s Mangrella. find the following inaction

Having legislative considered the intent underlying both 2C:44-4b, reject the Graves Act and N.J.S.A overly we literal construction urged by of N.J.S.A 2C:44-4b defendant. As Justice Stein stated for a unanimous Court v. Troopers State Ass’n, 393, 417-18, Fraternal meaning literal applied of a statute should not be when the Court is thoroughly Legislature convinced that the [statute] did not intend the to apply Judge the State now so Police, and we hold. Our conclusion reinforced by Learned “[t]here Hand’s classic admonition that is no surer to misread way any (2d Walling, document than to read it 144 F.2d literally.” 608, 624 Guiseppi Cir.1944). Brigantine, As [29 we observed Schierstead v. N.J. 220, 148 A.2d591 (1959)], controlling read “statutes are to and rather than sensibly literally ” legislative good intent is to as ‘consonant presumed be to reason discretion.’ (quoting Banking N.J. 148A.2d Morris Canal & Co. v. Central R.R. (Ch.1863)).... Legislature Co., 16 We cannot conceive N.J.Eq.

intended the amendment to the State Police and to no discipline apply only other major in the State. police department ease, present Legislature In the we cannot conceive that the prevent imposition intended 2C:44-4b to of an ex- N.J.S.A. by tended term mandated N.J.S.A. 2C:43-6c while the pending appeal Graves Act conviction was or before the time expired, persuad- appeal for such an and we now so hold. We are concerned, purpose ed that insofar as the Act is prevent is to the enhanced from N.J.S.A. 2C:44-4b becoming completion appeal in the final before of the direct appeal Graves Act conviction or before the for that has time expired. interpretation policy

That is consistent with the Code’s foremost severity assuring repeat “of and deterrence” of those [of sentence] possess guns during offenders who use or the commission Cannon, rapes. certain offenses as serious such robberies end, supra, A Towards that .2d 341. Legislature interpreted has directed that the Criminal Code be general purposes sentencing as further of extended-term 2C:1-2b, including public insurance of “the defined N.J.S.A safety by preventing through the the commission of offenses imposed deterrent influence of sentences and the confinement public protection.” required offenders when in the interest of Dunbar, 2C:1-2b(3); 80, 90-91, N.J.S.A. 527A.2d (1987). holding, “to Under our a defendant is not allowed escape statutorily-required higher penalty or because he she convicted, yet reading has not been on a literal of N.J.S.A [based 2C:44-4b], strategic maneuvering by or either because of counsel docket, of the court for [which creates] because of the vicissitudes Hawks, Legislature.” a windfall not envisioned defendants sentence, 366-67, as supra, 114 N.J. at 554 A .2d 1330. “The corrected, imposes punishment an offense instead of an a valid States, 330 punishment invalid for that offense.” Bozza v. United 160, 166-67, 91 L.Ed. U.S. 67 S.Ct. reject holding that part Appellate Division

We precludes imposition of a 2C:44-4b concluded N.J.S.A. if an mandatory extended term at the initial 18

pending appeal on the or if conviction the time to expired. Mangrella, supra, has N.J.Super. not 519 at A inapposite inquiry concerning mandatory .2d is to an the sentencing provisions presage of the Graves It Act. does not a applies rule that to Graves Act cases.

IV holding requires Our the impose provisional trial court to a provisional sentence. Such a is in sentence the if sense that the appeal, Graves Act is conviction reversed on the term purpose must be vacated in order vindicate the of N.J.S.A. 2C:44-4b. dispositions

Provisional as sentences authorized the within meaning Jersey. N.J.S.A in They 2C:43-2 are not New novel have independent been established under both the Code as well as legislative example legislatively One of a enactments. created provisional 2C:44-1f(2), permits sentence is N.J.S.A. which days imposition State to file an within ten if of sentence a is on a second-degree defendant sentenced first- or offense to probation, term, a noncustodial or to term for a authorized an degree offense one lower than for the crime which defendant was Sanders, convicted. See State v. 107 N.J. 527 A.2d (1987); Williams, State v. N.J.Super. A.2d Watson, (App.Div.1985); N.J.Super. 481, 444 A.2d603 context, (App.Div.1982). In permitted this is to seek an increase in the sentence. example

A legislatively provisional second of a created sentence 2C:47-4e, N.J.SA which is allows the Commissioner of De- partment of discretionary Corrections seek a reduction Chapman, sentence. State v.

Although scope of this modification sentence is limited 2C:47-4c, under it original N.J.S.A. nonetheless makes the sen- provisional tence procedure because the statute creates the for reducing portion of it has been served after Diagnostic Adult Chapman, and Treatment Center in Avenel. See 592-94, supra, statutory 95 N.J. at procedure A.2d 559. That applications change similar to of sentences under Rule 3:21— 10. type

A provisional third sentence is found the Pretrial (PTI), Program initially by Intervention which was created (1947) Supreme through making power, Court its rule N.J.Const. ¶ VI, 2, 3; 3:28, § art. Legislature, R. and later N.J.S.A Nwobu, 2C:43-12 to -22. See State v. (1995). example provisional

The clearest sentencing express without legislative approval analogous today that is to the one we establish Supervision Program, results from the Intensive known as ISP. program permits panel That judges to reduce the custodial qualified program. sentence of a defendant found to be for the carefully “is a ISP alternative that removes selected prison community defendants from and releases them into the Cannon, supervision.” supra, under standards of at N.J. goals prison 608 A.2d 341. The “are in ISP reduction over offender, crowding, appropriate punishment of the and rehabilita tion.” Ibid. Cannon limits admission into ISP to non-first- and offenders, non-second-degree 128 N.J. at but 1993, 123, 2a(3), by permit § this limitation was modified L. c. to McPhall, second-degree some offenders be considered. State v. 454, 457, denied, N.J.Super. (App.Div.), 637 A.2d 544 certif. (1994). 645 A.2d 138 only legislative approval, Not was ISP initiated 1983 without formalizing it started a court it. v. but was without rule State 509, 512-13, Clay, N.J.Super. (App.Div.1989), 553 A.2d 1356 o.b., program 571 A.2d 295 The was aff'd by Supreme pursuant signed by instituted Court to an order 26, 1983, VI, May relying dated on Article Chief Justice II, Paragraph Jersey 3 of the 1947 New Constitution. Id. Section 3:21-10(b)(2) relaxed; 515-16, Rule 553 A.2d 1356. Rule was 10(e) 10(b)(5) permit motions and Rule were added 3:21— 3:21— ISP, Thereafter, September into 1983. admission effective through budgetary appropriations. legislative approval there was 341; Cannon, 562-63, supra, Clay, supra, 128 N.J. at 608A.2d 516-17, persons A.2d 1356. Because all N.J.Super. at conditionally from a program are released admitted into the sentence, recipients provisional of a those candidates are custodial sentence. power to administer the criminal

Based on this Court’s 418, 432-33, justice system, N.J. Abbati provisional sentencing power to establish we exercise regardless appeal subsequent Act offenders of the a defendant status of the Graves Act conviction. When exposed to a Graves Act before the trial court is term, impose term. the trial court shall the extended However, subse should the conviction be reversed shall, pursuant to quently, the trial court on motion a defendant 3:21-10(b)(4) 3:22-2, sen Rule or Rule amend the extended-term ordinary to an Graves Act sentence. tence today judicial A rule we announce conserves resources. of statistical data for the and 1993 court terms review Appellate reveals that the rate of reversal Division Assuming approximately percent.' thirteen criminal cases was convictions, applies that rate approximate same rate to Graves suggests applications few for modification of the there will be Act conviction. The sentence based on reversal of the first Graves adopted by Appellate Division would have the procedure the opposite effect.

V any in from argues further that increase his sentence Defendant resentencing the ordinary imposed term on his first extend- the imposed resentencing constitutes a due- ed term on his second fundamentally unfair for process He claims that it is violation. succeeding in originally imposed after him to receive the sentence illegal by Appellate Divi- having very sentence declared that double-jeopar- no Although defendant concedes he suffered sion.

21 violation, argument is intertwined dy his fundamental-fairness double-jeopardy principles. Gallegan, v. with depriva due-process He also claims a 567 A.2d ultimate of the extended ground imposition tion on the that the in possible only by of trial court’s error virtue term was made Finally, defen imposing term in the first instance. the extended of his argues process requires due that status dant of in time” as the date conviction be “frozen of Graves Act argument presupposes that N.J.S.A. original sentencing. That that time. precluded imposition of the extended term at 2C:44-4b deprivation of his has suffered no find that defendant We rights imposition as a of result constitutional resentencing. term his second appeals his a defendant who Court has held that This corresponding sentence has along with the conviction substantive finality underlying in legitimate expectation no either Rodriguez, supra, corresponding sentence. conviction or holding Rodriguez significantly in N.J. at 478 A .2d408. 1, 8-9, A.2d scope Ryan, 86 of State v. N.J.

narrowed the denied, 70 L.Ed.2d 190 102 S.Ct. cert. U.S. imposi jeopardy foreclose the principles of double

which held that a has com prison sentence after defendant tion an increased Rodriguez, In serving portion of that sentence. menced to hold that the “Ryan can be understood Court instructed that expecta coupled with the defendant’s commencement sentence underlying conviction and finality original his tion of against an increase raise a constitutional bar combined (citing A.2d Rodriguez, supra, N.J. at sentence.” 332). Hence, 9-10, after Ryan, supra, 86 N.J. at principles assessing Rodriguez, inquiry in whether the critical imposition of a sentence jeopardy bar process and double due initially defendant main imposed is whether the greater one than respect to the expectation finality” with “legitimate tains DiFrancesco, 449 U.S. United States sentence. See (1980) original 426, increase in (holding that 328 S.Ct. 66 L.Ed.2d 22 expectation

sentence was constitutional because defendant had no finality specifically in sentence where statute sen authorized increased); Pearce, 711, tence to be North Carolina v. 395 U.S. 89 2072, (1969) S.Ct. (holding 23 L.Ed.2d 656 in that sen increase following tence remand and retrial constitutional because defen expectation finality dant no appealed had in when he sentence); Sanders, underlying supra, conviction as well as 107 619, DiFrancesco, (noting N.J. 442 at that under supra, 117, 426, 328, 449 U.S. at 101 at S.Ct. 66 at L.Ed.2d “the jeopardy analysis touchstone of the expectation double lies sentence”). of finality that a defendant vests in his Goldhammer, Pennsylvania 353, v. 474 U.S. 106 S.Ct. 88 recognition L.Ed.2d 183 reaffirmed the in DiFrancesco that ‘clearly “the decisions of Court this establish sen- tencing noncapital in a case] qualities does not have the ” finality acquittal.’ constitutional that attend an Id. at 106 353-54, S.Ct. (quoting at 88 L.Ed.2d at supra, 186 DiFrancesco 328). at U.S. at S.Ct. L.Ed.2d at More recently, Supreme again recognized Court continuing validity Bohlen, in Caspari DiFrancesco its decision v. -, ---, 954-56, U.S. 114 S.Ct. 127 L.Ed.2d 246-49 in Caspari The Court declined to on rule specific question double-jeopardy applies whether the clause to noncapital sentencing proceedings question and the related persistent-offender whether the proceeding involved in that ease sufficiently was trial-like double-jeopardy protections to invoke Missouri, Bullington under 451 U.S. 101 S.Ct. (1981) (holding

L.Ed.2d 270 double-jeopardy clause limits the subject power State’s capital defendant to sentencing successive proceedings). Nonetheless, the Court made telling this comment:

Applying the Double Clause to successive Jeopardy is not noncapital groundbreaking such objectively occurrence. Persistentoffender status is a fact ascertainable the basis of available evidence. Either a has readily defendant Subjecting number of or not. requisite convictions he does him a second sentencing proceeding at which the State has the to show those opportunity proceeding convictions is not unfair, will enhance the accuracy ensuring that is made on the determination basis of evidence. competent at ---, U.S. [Caspari, 956-57, 250.] S.Ct. L.Ed.2d at Supreme an that the Court take that comment as indication We double-jeopardy with a resentenc- perceives problems no generally ing repeat-offender a statute. under case, challenged underly present

In the defendant appeal. Under the sentence on direct ing conviction as well as DiFrancesco, legitimate Ryan, had no Rodriguez, and defendant or the finality respect with to either the conviction expectation of supra, at 478 A.2d 408. Rodriguez, 97 N.J. sentence. See holding of Rodri in that the is mistaken his assertion Defendant underlying conviction is only appeal of the guez applies where underly appeal of an of the hold that the outcome successful. We all, relevant, if relevant at highly not ing conviction is underly attacking an both whether such determination expectation of negates any legitimate ing and sentence convictions sought by the part Ibid. What was finality on the of defendant. obtained, relief, what any, if defines appeal, rather than the Baker, finality. legitimate expectation of See constitutes a o.b., 55, 76-77, (App.Div.), A.2d 553 N.J.Super. aff'd mean the would To hold otherwise 648 A.2d N.J. the'underlying any hope changing appeal was taken without Here, expectation only there an not was or sentence. conviction overturning in appeal, defendant succeeded but of success sentence, improperly. albeit term, sentence,

Moreover, Act extended original a Graves Appellate the remand order pursuant was modified trial court’s Consequently, “[t]he April 1992. Division dated to that determination. its reaction respect reflected action this erred, appropriate it is Appellate Division find that the Since we determinations, find were which we initial 596, 472 A.2d supra, at Chapman, proper, be reinstated.” 559. v. reliance on State unpersuasive defendant’s find

We also (1992), Baylass, and State Vasquez, 129 N.J. argument for support of his 553 A.2d Vasquez and conviction. prior Graves Act “freezing in time” his. Baylass recognize seeking provi that when to vacate the initial probation sional sentence of and to to a resentence custodial term following a probation, only violation of aggravating factors the court consider are those that existed the time of the provisional sentencing. Vasquez, supra, 129 N.J. at 29; Baylass, supra, 114 aggrava N.J. at 326. The A.2d ting factors are used to determine the as in-out decision well as range the aggravating play the sentence. But not a factors do determining prior role in a whether Act Graves offense exists. A prior independent Graves Act conviction is of the circumstances surrounding subsequent a Graves offense which for a defendant sentencing stands before the A court. Graves Act conviction merely statutorily trigger is a designated imposition for the mandatory subsequent extended term on a unrelated Graves Act conviction.

VI The adopt today rule we given is to be limited retroactive application. apply It shall to this case all in and cases which sentencing on the second Graves Act yet conviction has not occurred. It shall also apply all cases where defendant has conviction, been sentenced on the Act second Graves as of but decision, date of parties this have not exhausted all avenues of direct review on that Haynes, conviction. Montells v. 133 N.J. 282, 295-98, (1993); 627 A.2d 654 Coons v. American Honda Co., Inc., denied, Motor A.2d cert. (1985); U.S. 105 S.Ct. 83 L.Ed.2d 800 Burstein, 394, 402-03, The trial case-by-case court will a have to decide on today’s basis whether ruling has a legitimate expectation altered defendant’s negotiated instances, where pleas are involved. In those the court appropriate must fashion the relief.

VII sum, In we that trial imposition hold court’s of the Graves mandatory legal, extended term the first instance was mandatory imposition that of-the extended term defendant’s The resentencing fundamentally unfair to him. second was not imposed initial mandatory term must be at the sentenc- subject being if Graves Act ing proceeding, to vacated holding given appeal. Our shall be conviction is reversed on application. limited retroactive judgment Appellate Division is affirmed.

O’HERN, Justice, dissenting. illegal, imposed

In trial court an extended sentence 1990 the provisions Act. under extended-term (Commit gun a twice and N.J.S.A. certain crimes with 2C:43-6c. time.) long you go prison very will On defendant’s a Division, acknowledged that the sen- Appellate to the the State judicial illegal imposed. tence when Rather than correct was error, advantage chronology of takes of an unusual this Court illegal given. In a sentence that was when events to reinstate so, doing designs temporary system it required impose realistically neither nor authorized law appropriate for a criminal such as Haliski. sentence that is

I construction, statutory of we look first to the general “As rule unambiguous language If statute is clear and of the statute. the only interpretation, of need delve no its admits one we on face and Legislature’s deeper act’s terms to divine the than the literal Butler, .2d 399 445 A intent.” v. 89 N.J. State Jersey of nothing language of the New Code There the the Court’s decision. that authorizes Criminal Justice In always language the Code. followed the We have (1989), Hawks, applied the A.2d 1330 we 114 N.J. Act to provisions of the a defen extended-term separate Act offenses on occa dant who committed two Graves sions, before was of the second offense he was convicted but acknowledged for results potential the the first. We convicted of might that be unfair or unforeseen when the orders offense and concerns, shrugged conviction are reversed. But we off those being obliged apply legislation “the as we understand it.” Id. at “prior 554 A.2d 1330. The Code’s definition of a convic tion” of a require prior Graves Act crime does not the conviction be for a crime committed in time. Had the Code contemplated temporary sentencing suggested now Court, writing Justice task opinion Clifford’s the Hawks would easier; been much have the Court could tempo have fashioned a rary time, sentence for the offense second and increased or decreased it later. always respected

We have language Code even when we Legislature might actually believed that the agree changes Cannon, should be made. See State v.

(1992) (refusing to second-degree allow admission of first- and Supervision offenders into Program Intensive because the lan it). guage of permit the Code did not Even policy when sound exist, considerations it is not the function of courts to amend legislation correction, statutes. If needs it is a matter for the Legislature. is simply “[I]t one of understandings the most basic governmental powers among the allocation of the three branch Legislature es. The and the Executive do not decide cases—even though so; say the Constitution judiciary does not does not pass laws.” Id. A.2d 341. Appellate suggested Division assessing one scheme for

effect of appeal. Graves Act convictions The Court has Legislature fashioned another. The itself have another. The Attorney General informs us that the State has been able live interpretation with Mangrella, N.J.Super. 437, of State v. denied, (App.Div.1986), 519 A .2d926 certif. seeking without an amendment to the Code. The Code, Model Penal from which extended-sentence structure of derived, Dunbar, the of Criminal largely Code Justice is 80, 86, represents carefully a constructed of sentencing. scheme habitual-offender The Model Code, making, brought “thought- years ten in the Penal which was many sorely body places rationality to a of law that fulness Dressier, Excusing reform.” on needed Joshua Reflections Theory, New and the Penal Wrongdoers: Excuses Model Moral Code, lightly Rutgers We should not L.J. provisions. alter its

II adding against case counsel The unusual circumstances this such- complexity sentencing process. The first to another sentencing judge to original failure of was the circumstance a ripe defendant as that the ease was not realize Mangrella, clear under Graves Act offender. law was second a impose that N.J.Super. at supra, no Act must Act conviction extender Graves Graves reason, not product of longer appeal. Law should be the be of a liberty depend on the chance A loss of should not chance. law, or conscious of lottery. Had the court counsel been his Act have received a Graves extender would not defendant not he would sentencing. circumstance first Absent random legal would Act His sentence receive a extender. now Graves sentencing process proud cannot been affirmed. We be have judicial predicate error as the depends on the existence outcome.

Second, court’s inconsistency between the trial logical there ais robbery and for armed regular to a sentence approach Though defendant was Act sentence. extended Graves violence, court, by escalating history of criminal with a career sentence, regular gave presumptive imposing on remand the robbery of fifteen first-degree armed for a offense of possibility years without stipulation of five years required with a 1f(1)(b). the court Had parole. 2C:43-6e and N.J.S.A. 2C:44 — range, have in the top as it well could at the sentenced twenty have plea bargain, could been of a the sentence absence period. ten-year parole ineligibility years with a Third, when the court sentenced defendant to the Act extender, inexplicably range it higher regular selected a than for a Dunbar, 91-92, supra, In sentence. N.J. we explained imposing an extended term the sentencer does predicates not count twice that form the for the basis term, something but rather considers whether there is about the requires already offense itself that extended sentence to be at higher range. imposing a In regular its sentence the court saying seemed to be nothing that there was unusual about the offense, why give presumed else did it In sentence? sentence, regular imposed the court one-half of the maximum period parole ineligibility of imposed, that could have been but in imposed the extended it approximately two-thirds. Par- adoxically, the court’s statement of reasons for the two sentences except is identical —word for for the recital that the defen- word— subjected dant was to the Graves Act extender. point simply principled sentencing can accommodate type a sentence for the of offender who is before the court and the requirements statutory for a Graves Act extender —that the creating convictions be system final—without temporary of sentencing. Defendant stood of convicted armed robberies before long two courts. He had a record of lawlessness. Even without temporary the so-called sentencing provisions invoked this Court, imposed the two trial courts “appro- could have sentences priate to the sentencing Nickolopoulos, occasion.” Richardson v. For the Act first Graves offense, robbery, an armed twenty defendant could have received years years parole ineligibility. ten with of For the second Graves offense, twenty he years years could have received ten with parole ineligibility for forty combined consecutive sentences of years twenty years addition, parole with ineligibility. In be- guilty many prior cause the defendant had been after offenses age eighteen, he could persistent have been sentenced aas offender if eligible he were not for Graves Act extender. provisions 2C:43-7, Pursuant to the he N.J.S.A. could have been (or both) perhaps sentenced either offense terma of life twenty- parole ineligibility term of a maximum imprisonment with 2C:43-7a(2) combined sen- and -7b. Two years. N.J.S.A. five years if prison thirty-five for kept could have defendant tences any lesser sen- required. The fault principled so but in its administrators. lies not the Code tence

Ill temporary why ought not start we There is another reason Finality sentencing is an end in itself. See sentencing. denied, cert. U.S.

Ryan, idiosyncratic. If This case is 70 L.Ed.2d 190 S.Ct. Appellate Division had been in the disposition of the matters to the differently, have been resentenced defendant would ordered ordinary term. to accommodate change the law

There is no need to suspect I that most second in this case. chronology of events long guns have crimes with who commit Graves Act offenders terms eligible for extended that make them criminal histories as a probably have been sentenced anyway. should Defendant not, however, seek to prosecution The did persistent offender. Instead, the trial persistent offender. as a have Haliski sentenced by law. not authorized that was gave him a sentence court v. in State wipe slate clean as not Haliski’s did (1984) (“Since Rodriguez, 97 N.J. * * * themselves were underlying convictions substantive modification, sought their appeal in defendant subject on an which in the finality invested could be legitimate expectation no them.”). The sentences related underlying or the convictions Pearce, 89 S.Ct. 395 U.S. policy of North Carolina to the that, subjecting an accused ordinarily, L.Ed. 2d 656 appealing a sentence punishment as a condition of harsher risk is, in That process. of due principles imposed after trial violates effect, happened here. what J.,

STEIN, joins opinion. in this

STEIN, Justice, dissenting. join

I compelling dissenting Justice O’Hern’s clear and opinion, extraordinary but the holding impels Court’s separate- me to write ly- perceptive

The reader will understand that the Court has (Code), “amended” the Code of Criminal Justice N.J.S.A. 2C:1-1 98-4, procedure to authorize nowhere to be found within carefully provisions. the Code’s procedure crafted adopted by sense, perfectly good the Court makes likely and is not Legislature. to disturb the procedure The new authorizes a trial court to sentence a defendant who is convicted of a second Graves offense, 2C:43-6c, N.J.S.A. imprison to an extended term of although ment the defendant’s first Graves Act conviction is on appeal. procedure, totally The Court’s new by any unauthorized provision Code, directs that provision the extended term be only al and is to be if vacated Graves Act conviction is appeal. reversed on Ante at 656 A .2d at 1255.

Apart from the technicality institutional that under our constitu system judiciary laws,” Cannon, tional pass “the does not State v. (1992), major 608 A.2d 341 impediment newly the Court’s sentencing procedure authorized Graves Act is that expressly requires the Code a different result. The Code authorizes an only extended Graves Act persons for “previously convicted” of a Graves incep Act offense. From its tion, Code, 7.05, modeled after the Model Penal Code section expressly provided adjudication has that “[a]n a court of competent jurisdiction that the defendant committed a crime * * * prior constitutes a provided conviction that the time to appeal expired.” has (emphasis supplied). N.J.S.A. 2C:44-4b In Mangrella, (1986), N.J.Super. 519A.2d 926 certif. denied, Appellate Division, applying plain language the Code’s provision in the context of the authorizing offenders, persistent for sentences N.J.S.A. 2C:44-3a, sentencing held that the any court consider convic prior sentencing “provided tion that pending appeal there is no 926. At oral appeal.” Id. at 519 A.2d right or of direct us that the State here argument, Attorney General informed holding Mangrella applied granted that the had taken for tofore terms. to Graves Act extended sentencing newly majority support for its devised seeks permit courts in other states

procedure from the decisions of appeal. prior pending on sentencing based on convictions enhanced states, however, 12-13, do at 1251-1252. Those Ante at statutory to the Code that define provisions similar not have appeal. an longer pending no prior conviction as one legislative “probable ultimately relies on its view of The Court Ante at newly procedure. its crafted intent” to sustain legislative intent” the Court by “probable If 656 A.2d at 1253. probably prefer would the Court’s today’s Legislature implies that Code, by the the one mandated sentencing procedure to new compels sentencing procedure that surely correct: a Court prior Graves term on a defendant whose imposition of an extended subject only in the event appeal, to reduction Act offense is on rule that reversal, preferred to the Code’s undoubtedly would be ap- pending until prior convictions from consideration excludes different, but problem is that a concluded. The peals have been elected, in 1978when the Code Legislature one in office duly —the choice, 95) (L. policy c. different enacted was —made made, Penal Code’s adopting the Model entirely when reasonable prohibits consideration sentencing that conception of enhanced Legislature that appeal. The pending on still convictions years only three L. c. Act in passed the Graves conviction, later, definition of change to the Code’s made no only prior accepting principle of and apparently aware eligible consider- longer pending on were no convictions imposing terms. ation carefully sentenc- conceived rewriting of the Code’s

The Court’s convinced that disturbing. If the Court is deeply ing scheme is intent of frustrates the “prior convictions” definition of the Code’s flag Act, the issue this case as a vehicle it could use the Graves attention, Legislature’s for the as the Court has often done in the See, Cannon, past. e.g., supra, 128 N.J. at 608 A.2d 341 (commending Supervision Program legislative Intensive for con sideration); Styker, 254, 263-64, (1993) (Wilentz, C.J., concurring) (referring legislative consid sentencing eration youthful standards for offenders convicted offenses). Instead, second-degree first- and disregarding the language, plain Code’s clear meaning, entirely plausible provi concerning prior sions use of convictions for en hancement, usurps legislative the Court function and “con strues” the Code to authorize an sentencing proce unauthorized by any legislative body dure never enacted of this State. The produces Court’s decision also anomalous result that a pending appeal conviction differently will be treated under the purposes than it will be for sentencing persistent offenders. disposition

The Court’s unconventional probably this significant will not attract attention. ruling The Court’s will prevent second-time Graves Act avoiding offenders from an en hanced sentence because appeal. their conviction is on However, the cost to compromise the Court of the institutional ignores legal principles occurs when it basic to achieve a result contemporary public more consistent with policy, apparently acceptable majority, heavy to the is indeed. I have no doubt that long run compromise is not worth the result achieved extraordinary holding. Court’s opinion As Justice O’Hern’s out, points substantially equivalent sentence could have been of;the imposed authority on defendant under existing Code’s provisions. 28-29, Moreover, Ante at 656 A.2d at 1249. Legislature waiting wings, in the and could have acted had the stayed Court but its hand. Appellate

I would judgment reverse the Division’s and hold that ineligible defendant is for a Graves Act extended sentence. O’HERN, J., joins in opinion. this

Case Details

Case Name: State v. Haliski

Court Name: Supreme Court of New Jersey

Date Published: Apr 20, 1995

Citation: 656 A.2d 1246

Court Abbreviation: N.J.