State v. JohnsonState v. Johnson
The principal question raised on this appeal is whether a defendant convicted of violating the Uniform Narcotic Drug Law (
Defendant appeals through the Public Defender from а 5-6-year State Prison sentence imposed upon him as a second offender under
Indictment No. 1237-66 Indictment No. 1319-66 November 23, 1966 — Violation (possession of narcotic drug); relеased on bail February 13, 1967 — Violation (possession of narcotic drug) March 9, 1967 — Indicted March 20, 1967 — Pleaded not guilty March 21, 1967 — Indicted April 10, 1967 — Pleaded not guilty April 13, 1967 — Released on own recognizance
Defendant received no notice that he was to be sentenced as a second offender, either by way of accusation or otherwise. The sentencing judge made it clear that he imposed the sentence he did because he felt bound by the provisions of
The Legislature feels that people who violate the narcotics laws should be sent to jail. * * * Knowing this to be the Legislative policy and knowing that you are not a single violator but rather a second offender for the same particular offense, I cannot justify any action on my part in not imposing a custodial sentence in view of that provision of the law which binds me. * * *
I
Defendant first contends that he was improperly sentenced as a second offender because his second offense was committed before his conviction on the first offense. This question was not expressly raised below, and is therefore projected as plain error.
(c) Who violates any other provision [of the Uniform Narcotic Drug Law] shall be guilty of a high misdemeanor and shall be punished as follows:
(1) for a first offense, by a fine not exceeding $2,000.00 and by imprisonment, with hard labor, for a term of not less than 2 years nor more than 15 years;
(2) for a second offense, by a fine not exceeding $5,000.00 and by imprisonment, with hard labor, for a term of not less than 5 years nor more than 25 years;
* * * * * * * *
A more severe punishment on conviction for a second offense is deemed highly penal and therefore must be strictly construed. United States v. Lindquist, 285 F. 447, 448 (D.C.W.D. Wash. 1921); State v. Meinken, 10 N.J. 348, 352 (1952). Moreover, it is firmly established that the erroneous sentencing of a person as a second offender may constitute plain error, even through the sentence imрosed does not exceed the maximum allowed for a first offense. State v. Booker, 88 N.J. Super. 510 (App. Div. 1965).
Defendant contends that the word “offense,” as used in the cited statute, must be read as referring to a conviction if it is to provide a basis for enhancing punishment as a second offender — this in contrast to the alternative construction whereby a person who had violated the Uniform Narcotic Drug Act on successive dates would be punishable as a multiple offender, emphasis being placed on the time of commission rather than on the time of conviction. Our problem is therefore one of statutory construction.
We are referred by the parties to cases based on different, if similar, statutes providing, for example, for enhаnced punishment for multiple violations of drunken driving statutes, federal narcotic laws, or habitual offender acts. Thus, a distinction between the commission of and the conviction for an offense was made in Holst v. Owens, 24 F.2d 100 (5 Cir.1928), in construing the multiple offender section of the former National Prohibition Act,
It cannot legally be known that an offense has been committed until there has been a conviction. A second offense, as used in the criminal statutes, is one that has been committed after conviction
for a first offense. Likewise, a third or any subsequent offense implies a repetition of crime after each previous conviction. [at 101]
See also, Singer v. United States, 278 F. 415, 420 (3 Cir.1922), dealing with the same statute; Annotation, “Chronological or procedural sequence of former convictions as affecting enhancement of penalty for subsequent offense under habitual criminal statutes,” 24 A.L.R.2d 1247, 1249, 1252 (1952), and 3 A.L.R.2d, Later Case Service 728 (1965), stating this as the majority view.
State v. Deckert, 69 N.J. Super. 105 (Cty. Ct. 1961), on which the State relies, is not relevant. The court there held that
* * * Any person who shall violate this provision shall, upon conviction thereof for a first offense, be subject to [a fine or imprisonment, or both] * * *. Any person who shall violate this provision, having been convicted of a previous violation thereof, shall be imprisoned * * *. [L. 1931, c. 171, § 9; emphasis added]
The 1952 amendment read, in pertinent part:
A person who operates a motor vehicle while under the influence of intoxicating liquor * * * shall be subject, for a first offense, to [a fine or imprisonment, or both] * * * For a subsequent violation, he shall be imprisoned * * *.
Although the amendment delеted the words “having been convicted of a previous violation thereof,” it inserted the clause “who has been convicted of a previous violation” in a subsequent paragraph having to do with the contents of a complaint charging a second violation. The Deckert court apparently took this as another indication that the deletion
Since we have nothing by way of legislative history or successive amendments to guide us, we must analyze the intent and purрose of the language of
As noted above, the great weight of authority in the Unitеd States appears to support the latter view. Interestingly enough, the court in Deckert recognized this when it said:
The preponderance of authority supports the view that the prior conviction, in order to be available for imposition of increased punishment, must precede the commission of the principal offense, that is the latest prosecution in pоint of time. The philosophy inherent in this theory is that the Legislature in enacting such statutes intended them to serve as a warning to first offenders and to afford them an opportunity to reform and that the reason for the infliction of severer punishment for a repetition of offenses is not so much that defendant has sinned more than once as that he is deemed incorrigible when he persists in violating the law after conviction of previous infractions. * * *. [69 N.J. Super. at 107]
Gonzalez v. United States, 224 F.2d 431 (1 Cir.1955), was a case arising under the Federal Narcotics Act of November 2, 1951,
(c) Whoever * * * receives, conceals, buys, sells * * * any such narcotic drug * * * in violation of the laws of the United States, shall be fined * * * and imprisoned not less than two years or more than five years. For a second offense, the offender shall be finеd * * * and imprisoned not less than five or more than ten years. For a third or subsequent offense, the offender shall be fined * * * and imprisoned not less than ten or more than twenty years. Upon conviction for a second or subsequent offense, the imposition or execution of sentence shall not be suspended and probation shall not be granted. For the purpose of this subdivision, an offender shall be considered a second or subsequent offender, as the case may be, if he previously has been convicted of any offense the penalty for which is provided in this subdivision * * *.
The court held that to justify the imposition of a second offender sentence the prior conviction (of July 29, 1952) must have been entered before the commission of the May-June offenses for which Gonzalez was now being punished. The matter was remanded to the District Court for resentencing.
In arriving at its decision, the court (Magruder, C.J., Biggs and Woodbury, JJ.) discussed the reformation and retribution theories of punishment underlying the practice of imposing a more severe punishment on multiple offenders. The сourt said:
* * * If the purpose of subsequent offender statutes is to deter criminal conduct, we can see no reason why the increased penalties should not be applied to any subsequent offense whether or not there has been an intervening conviction and sentence since presumably
a greater penalty would be required to detеr a repetition of criminal activity by an offender who has not been convicted previously than to deter repetition by the offender who has been subjected to the corrective impact of conviction and sentence. If, on the other hand, subsequent offender statutes are intended to reform the offender and deprive him by reasоn of his incarceration of the opportunity for continued criminal conduct, then such statutes would seem to apply properly only to offenders convicted prior to the subsequent offense, for the repetition of criminal activity after conviction would show the inadequacy of a first-offender penalty to perform this function and the need of increased penalties. If the purpose be “to vindicate the law,” as the Supreme Court put it, such statutes apparently would be applicable only to those convicted prior to the later offense because the social demand for increased penal sanctions would be directed primarily at the reсidivist and not at an individual who had repeatedly committed offenses condemned by the statute but who had never been brought to the bar of justice. [224 F.2d at 433]
We cannot overlook the final paragraph of
In case a person charged with a violation of any of the provisions of this chapter shall have been previously convicted of a violation of the laws of the United States or of any other State, territory or district relating to narcotiс drugs, such previous conviction shall for the purpose of this section, be deemed a first or second offense as the case may be. [Emphasis added]
This provision clearly evinces a legislative intent to require that a conviction for a prior violation precede an accused person‘s being charged with a second offеnse before bringing into play the enhanced penalty provisions, where the prior violation involved the laws of another state or the federal law. That the words “previously convicted” and “such previous conviction” in the final paragraph of
As tangential support for his position, defendant notes the cases decided under the Habitual Offenders Act,
We therefore conclude that the sentencing judge committed plain error: defendant could not be sentenced as a second offender when the second offense occurred prior to his conviction for the first offense. We read the statute as intended to punish recidivism — the failure of a person to reform his ways after a prior conviction for his antisocial behavior — and not merely to provide increased punishment for multiple offenses. The problem is not that a person has committed two similar crimes, but rather that he has failed to restructure his life-style after having formally been punished.
II
Also raised as plain error on defendant‘s behalf is that the trial judge committed reversible error by failing to give him proper notice that he was to be charged as a second offender, or a reasonable opportunity to be heard on the matter. When defendant, on September 30, 1968, pleaded guilty to illegal possession of a narcotic drug on February 13, 1967, mention was made of the fact that he had earlier received a suspended sentence for a similar violation (i.e.,
Your Honor, I, frankly, am caught quite by surprise by the court‘s sentence. I did not realize that this man was charged as a second offender nor did I realize that as he was charged before this court his sentence is a mandatory imprisonment for the terms indicated by your Honor. I was of the opinion that he would have to be charged аs a second offender.
I would, under the condition — if it is as the court stated, not have advised this man originally as I did advise him. I think he has grounds at this time to ask that he be given permission to retract his plea. I feel he may have grounds to appeal the sentence. So I would ask this court to set bail at this time pending an appeal.
Bail was set at $2,500.
Clearly, defendant was given no notice whatever as to the sentencing judge‘s intention to impose the enhanced penalty, and his counsel was not in a position to present his client‘s case adequately. Accordingly, what occurred comes squarely within the proscription in the holding of State v. Booker, above, which requires that, absent a charge in the indictment that defendant was a рrior offender, an accused was not subject to enhanced punishment unless and until an accusation was filed against him charging him with a prior offense. Cf. State v. Taylor, 72 N.J. Super. 388 (Cty. Ct. 1962). Moreover, it must be recalled that defendant changed his plea to guilty to the second charge, presumably not recognizing the precariousness of his situation.
Judgment reversed and the matter remanded for resentencing defendant as a first