State v. SmithState v. Smith
This is an appeal from the denial of resentencing by the Resentencing Panel where defendant was sentenced as a sex offender under Title 2A and now wishes to be resentenced under Title 2C. The Panel denied resentencing for lack of “good cause” under
Defendant had pleaded guilty to charges of rape,
The Title 2A sex offender sentence carried no minimum term and the prisoner was not entitled to good time or work credits.
In June 1981 defendant was transferred from Avenel to Trenton State Prison for disciplinary reasons after a “court line”
Under
On this appeal defendant basically contends that he should be resentenced under Title 2C so that he can obtain the benefit of institutional credits against his 30-year sentence and the standard parole eligibility. See
We reach several conclusions on the record before us. All concede that defendant met the threshold disparity test. The only issue before the panel was whether “good cause” was established under
We find no abuse of discretion in refusing to find good cause and affirm for the reasons stated by the Resentencing Panel. Disparity alone is not good cause and should not be viewed in a vacuum. We must also remember that the original sentence resulted from a plea agreement. Defendant‘s expectations were scrupulously honored by the agreement. Further, problems concerning the location of a prisoner‘s housing within the correctional system or whether he is receiving appropriate sex-offender treatment may not be remedied by the Resentencing Panel. In State v. Johnson, 88 N.J. 26 (1981), the Supreme Court cited with approval the factors listed by Judge Coleman in his dissent in State v. Johnson, 182 N.J. Super. 1, 8-9 (Resentencing Panel (1981)) (Coleman, J.S.C., dissenting), which govern the Panel‘s deliberations. Events transpiring after confinement are not relevant to these decisions. See State v. McDermott, 175 N.J. Super. 334, 340 (App.Div. 1980), certif. den. 87 N.J. 332 (1981).
A prisoner is always free to challenge an institutional transfer, a failure to receive treatment, or a classification grievance through an administrative appeal and ultimately an appeal to this court. But the Resentencing Panel is the wrong route. Additionally, the record before us is totally inadequate for any improvisation. See State v. Clark, 54 N.J. 25, 26 (1969); State v. Rydzewski, 112 N.J. Super. 517, 520-521 (App.Div. 1970); R. 2:2-3(a)(2);
Defendant has no constitutional right to be resentenced because of the existing disparity. The Legislature, and the Attorney General by formal opinion, effected this disparity. In this context, the differing treatment of prior offenders does not generate any inference of constitutional deprivation. See Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103-2104, 60 L.Ed.2d 668 (1979). “There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.” Ibid.
Defendant is not denied access to the parole system. The Legislature has simply provided a different system for parole for those sentenced under Title 2A, i.e., release on the probability of “acceptable social adjustment in the community” (
We perceive that defendant‘s real quarrel is with the effect of his administrative transfer. The problem is complicated by defendant‘s desire to stay at Trenton State Prison rather than return to Avenel or go to Rahway State Prison where some form of sex-offender treatment is available. The treatment at Rahway is alleged, without proof, to be constitutionally inadequate. No treatment is available at Trenton State Prison according to defendant‘s counsel. Defendant, however, has a right to treatment. See State v. Harvey, 162 N.J. Super. 386, 391-392 (Law Div. 1978), aff‘d o.b. 170 N.J. Super. 391 (App.Div. 1979);
The decision of the Resentencing Panel is affirmed; the Commissioner is ordered to implement defendant-appellant‘s right to treatment as a sex offender under