Petition for Writ of Certiorari — Frank J. Anderson, Jr., Petitioner v. New Jersey

Supreme dourTUT"

FILED

JUN 09 2025

2 4 - 1279

OFFICE OF the Cl friz

In The

Supreme Court of the United States

FRANK J. ANDERSON, JR.,

PETITIONER,

V.

STATE OF NEW JERSEY,

RESPONDENT.

On Petition for Writ of Certiorari

to The New Jersey State Supreme Court

PETITIONFOR WRIT OF CERTIORARI

FRANK J. ANDERSON JR.

193 West 48Th Street

Bayonne, NJ 07002

908-249’5942 / frankj404@yahoo.com

^RECEIVED

JUN 1 1 2025

QUESTION PRESENTED

Does the New Jersey judicial process, by (1)

preparing the judgment of conviction in the

petitioner’s absence, (2) departing from the orally

pronounced sentence—which New Jersey law holds

as the controlling determination of punishment—and

(3) subsequently resentencing the petitioner in a

manner that imposes a harsher penalty in

contravention of the Double Jeopardy Clause, thereby

infringe the petitioner’s Federal rights under the

Fifth and Sixth Amendments, as well as his due

process rights? Specifically, does this practice run

afoul of the settled precedent in cases such as Bartone

v. United States1 and related U.S. Supreme Court

decisions addressing the requirement that a

defendant be present at all critical stages of

punishment and that the oral sentence—absent an

unequivocal waiver—is controlling?

1 Bartone v. United States, 375 U.S. 52, (1963).

1

RELATED PROCEEDINGS

In an unpublished opinion from the New Jersey

Appellate Division in A’003528'22 the court’s decision

denied Petitioner’s appeal in a written opinion. (App.,

3a - 19a) Thereafter, the New Jersey State Supreme

Court denied Certification. (App., la — 2a)

ii

TABLE OF CONTENTS

Question Presented................................................... i

Related Proceedings.................................................. ii

Table of Authorities..................................................iii

Opinions Below.......................................................... 1

Jurisdiction................................................................ 2

Constitutional and Statutory Provisions

Involved...................................................................... 3

Introduction............................................................... 4

Statement of the Case................................................6

Arguments.................................................................. 12

I.

PETITIONER

ANDERSON’S FIFTH,

SIXTH

AND

FOURTEENTH

AMENDMENTS,

RIGHT TO

BE

PRESENT AT EVERY STAGE OF TRIAL

WERE

VIOLATED WHEN

AN

ADMINISTRATIVE

AGENT

OF

THE COURT

PREPARED THE

JUDGEMENT OF CONVICTION (JOC)

DAYS LATER AFTER THE ORAL

SENTENCE WAS PRONOUNCED AND

PREPARED

IT

OUTSIDE

OF

PETITIONER'S PRESENCE WHICH

INCLUDED A PUNITIVE TERM OF

COMMUNITY SUPERVISION FOR LIFE

(CSL) THAT WAS NOT ORALLY

PRONOUNCED BY THE SENTENCING

JUDGE........................................................ 10

iii

II.

THE ILLICIT ADDITION OF CSL AFTER

COMPLETION OF THE CUSTODIAL

TERM VIOLATES DOUBLE JEOPARDY

PRINCIPLES.............................................. 17

Reasons for Granting the Petition.............................26

Conclusion.................................................................. 28

iv

TABLE OF AUTHORITIES

CASES

Bartone v. United States,

375 U.S. 52 (1963) .............................................14, 17,

18, 20, 23,

Commonwealth v. Lavoie,

464 Mass. 83 (2013).......................................... 15

Earley v. Murray,

451 F.3d 71 (2d Cir. 2006)......................... ,...... 14

Ex parte Lange,

85 U.S. (18 Wall.) 163 (1874)........................... 19

Fine v. Commonwealth,

312 Mass. 252(1942).......................................... 15

Greene v. United States,

358 U.S. 326 (1959)............................................13

Hill v. United States ex rel. Wampler,

298 U.S. 460 (1936)

12, 13, 18, 19, 20

Johnson v. Mabry,

602 F.2d 167 (8th Cir. 1979)............................ 13

Kennedy v. Reid,

101 U.S. App. D.C. 400, 249 F.2d 492 (1957).3, 10

People v. Farrar,

52 N.Y.2d 302 (1981)......................................... 15

v

People v. Fuller,

57 N.Y.2d 152 (1982).........................................13, 14

People v. Richardson,

925 F.2d 112 (2d Cir. 1991)............................. 15

People v. Selikoff,

35 N.Y.2d 227 (1974)...................................... 13, 14

Pollard v. United States,

352 U.S. 354(1957)........................................ .10

Rivers v. Fisher,

390 F. App’x 22 (2d Cir. 2010)........................14

Sanders v. United States,

411 U.S. 711 (1973).......................................... 13

State ex rel. B.P.C.,

421 N.J. Super. 329 (App. Div. 2011)............ 6

State v. Abril,

444 N.J. Super. 553 (App. Div. 2016)............ 4, 9, 12

State v. Jamgochian,

363 N.J. Super. 220 (App. Div. 2003)............ 6

State v. Laird,

25 N.J. 298 (1957)............................................19

State v. Pohlabel,

40 N.J. Super. 416 (App. Div. 1956)................. 2, 9, 12

vi

State v. Rivers,

252 N.J. Super. 142 (App. Div. 1991)...............3

State v. Sabong,

18 N.J. Super. 346 (1952)....................................4

State v. Schubert,

212 N.J. 295 (2012)

13, 16, 19, 22

State v. Toth,

37 N.J. Super. 414 (1955)....................................4

Sudler v. City ofNew York,

689 F.3d 159 (2d Cir. 2012)................................14

United States v. Biggies,

957 F.3d 551 (5th Cir. 2020).............................. 17, 21

United States v. Gagnon,

470 U.S. 522 (1985).............................................. 11, 22

United States v. Marquez,

506 F.2d 620 (2d Cir. 1974) ................................. 3, 10,

21, 23

United States v. Villano,

816 F.2d 1448 (10th Cir. 1987).......................... 2, 21

Waller v. Georgia,

467 U.S. 39 (1984).................................................. 15

vii

CONSTITUTIONAL PROVISIONS

U.S. Const, amend. V.................................. 10

U.S. Const, amend. VI................................. 10

U.S. Const, amend. XIV............................... 10

STATUTES AND RULES

28 U.S.C. § 1257........................................... 1

28 U.S.C. § 2101(c)....................................... 1

N.J. Ct. Rule 3:16......................................... 11

N.J. Ct. Rule 3:21-10.................................... 8, 19,

N.J.S.A. 2C:43-6.4........................................ 8, 9

viii

OPINIONS BELOW

The New Jersey’s Appellate opinion on October

25, 2024, is unreported but is reproduced in the

appendix at (App., 3a - 19a). The New Jersey State

Supreme Court’s denial of Certification on March 11,

2025, is unreported but reproduced in the appendix at

(App., la - 2a) the Order dated January 26, 2023, for

the denial of Post Conviction Relief and Illegal

Sentence is reproduced in the appendix at (App., 27a

— 32a). The Order dated June 1, 2023, for the

Reconsideration of Post Conviction Relief and Illegal

Sentence is reproduced in the appendix at (App., 20a

- 26a). The Order in letter form from JUDGE

DePASCALE dated March 7, 2014, denying for

procedurals bar reasons is reproduced in the appendix

at (App., 33a - 35a).

JURISDICTION

The New Jersey Appellate Division issued its

opinion on October 25,2024 affirming the lower courts

denial for post-conviction relief and to correct an

illegal sentence. On March 11, 2025, the New Jersey

State Supreme Court denied certification affirming

the appellate court’s decision. The state court decision

in this matter is final, and the petition for a writ of

certiorari is timely filed in accordance with the 90‘day

deadline mandated by 28 U.S.C. § 2101(c).

Accordingly, the United States Supreme Court has

jurisdiction to review the decision pursuant to 28

U.S.C. § 1257

1

INTRODUCTION

The New Jersey Appellate Division’s decision

conflicts with previous New Jersey state precedent

case law decided by New Jersey’s highest court, along

with cases decided throughout this country and is not

in line with precedent cases that have been decided

from this court. Defendant was originally sentenced

in open court by an oral pronouncement from the

sentencing judge that did not include community

supervision for life, CSL term. Notwithstanding the

clear record of the defendant’s presence and

understanding of his oral sentence, the Judgment of

Conviction subsequently included CSL—a term

imposed by statute. Despite the defendant’s

contention that the oral sentence controls, the

Appellate Division failed to give due weight to this

established common-law principle. Furthermore, the

imposition of CSL was effectuated ten days after the

sentencing hearing was held, outside the defendant’s

presence, and an effort to re-sentence him to include

CSL after he served his complete prison term runs

afoul of the constitutional safeguard against multiple

punishments.

The fundamental rule in criminal sentencing is

that the oral sentence pronounced from the bench

prevails when there is a conflict with a later written

judgment. In United States v. Villano, 816 F.2d 1448

(10th Cir.1987), this Court of Appeals emphatically

held that “[a]n unambiguous oral pronouncement of

sentence controls when there is a conflict with the

written judgment and commitment order.” The

Appellate Division’s decision in State of New Jersey

v. Frank J. Anderson Jr., Docket No. A-003528-22T2

2

blatantly disregards this controlling principle by

validating the inclusion of CSL in the JOC despite the

defendant’s clearly stated oral sentence that omitted

such a term. This error deprived the defendant of his

right to the sentence as pronounced in open court.

Specifically, where the JOC and or commitment order

differ from the sentence on the record (sentencing

transcripts) the oral pronouncement by the judge is

controlling. United States v. Marquez, 506 F.2d 620

(2d Cir. 1974); Moreover, "It is the oral sentence

which constitutes the judgment of the court, and

which is-authority for the execution of the court’s

sentence. The written commitment is "mere evidence

of such authority." Kennedy v. Reid, 249 F.2.d 492,

495(1957); Our Courts have consistently held that "In

the event of a discrepancy between the court’s oral

pronouncement of sentence and the sentence

described in the judgment of conviction, the

sentencing transcript controls, and a corrective

judgment is to be entered". State v. Rivers, 252 N.J.

Super. 142, 147 n. 1,599 (1991). Moreover,” Where

there is a discrepancy between the trial court’s oral

pronouncement of sentence and the sentence

described in the judgment of conviction, the

transcript the trial judge’s remarks controls. This

discrepancy should be corrected by the trial court and

an appropriate amendatory judgment entered." State

v. Pohlabel, 40 N.J. Super. 416, 423, (1956). In

addition, "where there is a conflict between the oral

sentence and the written commitment, the former will

control if clearly stated and adequately shown, since

it is the true source of the sentence, instead of the

latter which is merely the work of a clerk." In re De

Luccia, 10 N.J. Super. 374, 380-381 (1950); In re

3

Sabong, 18 N.J. Super., at pages 346'347; State v.

Toth, 37 N.J. Super. 414, 416 (1955). In the case

before the court today, the New Jersey Appellate

Court decided “on the merits of defendant's claim, we

agree with his argument that it was improper for the

JOC to include a CSL term when CSL was not

imposed at his sentencing hearing. "In the event of a

discrepancy between the court's oral pronouncement

of sentence and the sentence described in the

judgment of conviction, the sentencing transcript

controls and a corrective judgment is to be entered."

State v. Abril, 444 N.J. Super. 553, 564 (2016). A

remand to correct the discrepancy is the appropriate

remedy in such circumstances. Ibid.. Still, with all the

existing caselaw from New Jersey, along with caselaw

from other authorities, the New Jersey Appellate

Court decided that “A resentencing hearing to orally

impose the CSL term under which defendant has been

supervised for more than a decade would not offend

double-jeopardy principles”. Petitioner was orally

sentenced by the sentencing judge to a custodial term

of 20 years, then 7 days later after that sentence was

imposed, an additional punitive term of CSL was

reflected on the JOC which was prepared when

petitioner was not present and had begun to serve his

sentence. Inasmuch, petitioner was not notified of

CSL until he served his maximum custodial sentence.

This Court should grant the petition for writ of

certiorari.

STATEMENT OF THE CASE

On or about December 22,1995, Petitioner was

Indicted on a ten (10) Count Indictment on Counts

4

one (1) and two (2) Aggravated Sexual Assault, Count

three (3) Sexual Assault, Counts four (4) and five (5)

Aggravated Criminal Sexual Contact, Count six (6)

Criminal Sexual Contact, Count seven (7) Armed

Burglary, Count eight (8) Burglary, Count nine (9)

Possession of a Weapon for an Unlawful Purpose, and

Count ten (10) Unlawful Possession of a Weapon.

Original Charges. (App., 46a - 50a). On or about

August 15, 1997, Petitioner was convicted of Counts

two (2), three (3), five (5), six (6), nine (9), and ten (10)

after a jury trial. On or about February 13, 1998,

petitioner was sentenced by the Honorable Jose L.

Fuentes in pertinent part as follows^ "...twenty (20)

years. You are to serve that sentence without parole

for a period often years, which is the maximum parole

ineligibility provided by law. You are assessed a

$100.00 Violent Crimes Compensation Board penalty,

a $75.00 Safe Streets penalty, and $30.00 Law

Enforcement Trust Fund penalty. On count nine I

find the same aggravating and the lack of mitigating

factors, and you're sentenced to five years in State

Prison to run concurrent with the previous sentence.

You have 45 days to file an appeal." (Sentencing

Transcripts). Petitioner filed a direct appeal that was

denied on or about December 6, 2000. Petitioner filed

a PCR application that was denied on or about

October 21, 2004. On or about August 14, 2009, a

representative from the New Jersey Parole Board

notified Petitioner for the first time that he would be

released to Community Supervision for Life (CSL)

and he would have to register for Megan's Law. (App,.

36a - 44a). At that time, Petitioner had no idea what

Community Supervision for Life was. Moreover, he

had no idea that approximately twelve (12) years

5

after he was sentenced that he would be facing such

penal and detrimental consequences of CSL and

Megan's Law. On or about September 18, 2009,

Petitioner was released from the Department of

Corrections because he served his maximum sentence

(App., 45a). While a direct appeal, and a prior post­

conviction relief application were previously filed, the

CSL issue was never addressed because Petitioner

had no idea that his sentence was illegally enhanced

to include CSL without his knowledge. (App., 48a).

Thirty-three days (33) after serving the maximum

sentence of approximately twelve (12) years,

Petitioner was informed for the first time that he was

sentenced to CSL and Megan's Law. He was told to

sign on the line or it would delay his release, and he

noted on the form that he was unaware of being

sentenced to CSL. The conditions of Community

Supervision for Life are more than those of the

conditions of standard parole. See Sex Offender

Management/Supervision on the New Jersey State

Parole Boards Home page. "Parole officers assigned to

the Sex Offender Management Unit use a

"containment" approach to sex offender supervision.

The Containment Approach includes intensive parole

supervision". The conditions of (CSL) are so onerous

that the Supreme Court of New Jersey has deemed

them to be punitive in nature. State v. Schubert, 212

N.J. 295, 309 (2012). See State exrel. B.P.C., 421 N.J.

Super. 329, 354 (App.Div.2011); State v. Jamgochian,

363 N.J. Super. 220, 224 (App. Div.2003). For

example, since being on (CSL), petitioner has had to

report to the Jersey City Parole Office District 4, at

least twice a month. This interferes with petitioner's

job and cost of living. Petitioner at times can lose

6

entire days’ pay. While at the office petitioner is often

required to conduct mandatory drug testing,

searches, and answer questions under the threat of

being placed on a curfew or being placed on Electronic

Monitoring System. Petitioner cannot take a job

unless it is approved by his assigned parole officer,

which has caused petitioner to lose several

employment opportunities as employers do not want

to hire someone on parole. In addition, Petitioner has

lost at least four (4) jobs as a result of parole officers

contacting his employers and demands on him having

to leave work to meet with him when they demand it.

Petitioner cannot volunteer for anything unless it is

approved by his assigned parole officer. Petitioners

assigned parole officer conducts monthly visits to

petitioner's residence and employment. This can be

done at any time the parole officer decides. Petitioner

cannot leave the state to go on vacation, visit friends

and family, or even travel to New York City for a day

trip. When Petitioner was advised about the addition

of CSL to his sentence, he was unable to afford an

attorney; accordingly, Petitioner filed a pro se Motion

for Post-Conviction Relief to address the CSL issue on

or about October 18, 2013, and a supplemental PCR

Brief on March 10, 2014. On or about March 10, 2014,

the court sent a letter stating that the Motion would

not be heard due to a procedural bar. (App.,33a - 35a).

On or about March 11, 2014, Petitioner filed a Motion

for reconsideration, but it was never addressed by the

court. After that denial, Petitioner was uncertain on

how to proceed. The denial letter from Judge

DePASCALE stated, ‘Your first motion for post­

conviction relief was denied on October 21, 2004.

Almost ten years have passed between the filing of

7

your first and second post-conviction motions, clearly

in excess of the one-year time limit provided in Rule

3:22-12. Therefore, your second motion for post­

conviction relief is procedurally barred”. Additionally,

your motion to suspend community supervision for

life is without merit. N.J.S.A. 2C43-6.4(c) states

"[t]he judge may grant a petition for release from a

special sentence of parole supervision for life only

upon proof by clear and convincing evidence that the

person has not committed a crime for 15 years since

the last conviction or release from incarceration,

whichever is later." Petitioner’s motion was not filed

under the precepts of N.J.S.A. 2C:43-6.4....to be

relieved of CSL after serving the required 15 years.

Petitioner Anderson moved before the Court because

applying CSL to defendants' sentence is illegal as is

argued in his petition and the supplemental brief.

Whereas petitioner relied on N.J.Ct. Rule 3:21-10(b)

(5). Petitioners' continuous supervision from parole

and the onerous conditions that were being placed on

him and knowing his rights have been and are still

being violated, due to the sentence being illegal.

Petitioner decided to file another illegal sentence

motion with the court. Petitioner retained counsel to

file a Motion to correct the illegal imposition of CSL.

Subsequently a hearing was held on January 9, 2023,

before Judge Nesle A. Rodriguez. On January 26,

2023, the court denied the defendant’s Motion. (App.,

27a - 32a). On May 9, 2023, counsel filed a

reconsideration letter brief to correct the illegal

sentence of CSL. The court held a hearing for that

motion. That hearing was held on June 1, 2023. The

court

later

that

day

denied

petitioners

reconsideration motion. (App., 20a - 26a). Petitioner

8

proceeded pro se and filed an appeal with the New

Jersey Appellate Division. On October 25, 2024, the

court issued a written opinion (App., 3a - 19a) and in

that decision the court stated, “Remand for correction

of defendant's sentence at a sentencing hearing to

include CSL is required to comply with N.J.S.A.

2C:43-6.4(a). We disagree with defendant's argument

that resentencing would violate the Double Jeopardy

Clauses of the federal and State constitutions.” Still

the court also noted that,” On the merits of

defendant's claim, we agree with his argument that it

was improper for the JOC (App., 46a - 50a) to include

a CSL term when CSL was not imposed at his

sentencing hearing. "In the event of a discrepancy

between the court's oral pronouncement of sentence

and the sentence described in the judgment of

conviction, the sentencing transcript controls and a

corrective judgment is to be entered." State v. Abril,

444 N.J. Super. 553, 564 (App". Div. 2016). A remand

to correct the discrepancy is the appropriate remedy

in such circumstances, see also State v. Pohlabel, 40

N.J. Super. 416, 423 (App. Div. 1956) ("[W]here there

is a conflict between the oral sentence and the written

commitment, the former will control if clearly stated

and adequately shown, since it is the true source of

the sentence . . ..").

9

Amendment, and by Article I, paragraph 10 of the

New Jersey Constitution. See United States v.

Gagnon, 470 U.S. 522, 526, (1985). In some

circumstances that do not involve the confronting of

witnesses or evidence against a defendant, the right

is protected by the due process clauses of the Fifth and

Fourteenth Amendments. Gagnon, supra, 470 U.S. at

526. The right is so vital to the proper and fair

functioning of the criminal justice system that it is

protected by a specific rule. New Jersey's Rule

3U6(b) provides in pertinent part: “The defendant

shall be present at every stage of the trial, including

the impaneling of the jury and the return of the

verdict, and at the imposition of sentence, unless

otherwise provided by Rule. Nothing in this Rule,

however, shall prevent a defendant from waiving the

right to be present at trial. A waiver may be found

either from (a) the defendant's express written or oral

waiver placed on the record, or (b) the defendant's

conduct evidencing a knowing, voluntary, and

unjustified absence after (1) the defendant has

received actual notice in court or has signed a written

acknowledgment of the trial date, or (2) trial has

commenced in defendant's presence.” Petitioner

Anderson was sentenced on February 13, 1998.

During that sentencing hearing, petitioner Anderson

was present and did speak at his sentence. The court

sentenced Anderson to a 20-year term with a parole

disqualifier of 10 years. This sentencing term was to

be served in state prison. At the end of the hearing,

petitioner Anderson was taken into custody and

began

to

serve

his

sentence. At

no time, thereafter, was Anderson ever called back

before the court for any imposition of any additional

11

sentence. It wasn’t until August 14, 2009, 33 days

prior

to

Petitioner

being

released

from

prison, that Petitioner was told by a representative of

the New Jersey State Parole Board, that upon

release, petitioner will be released on Community

Supervision for Life and would have to register under

Megan’s Law. (App., 36a - 44a). It was here that

Petitioner Anderson had first heard of CSL

and Megan’s Law and was unaware of such. After

being released and reporting to parole, Anderson was

assigned to a parole officer and was required to sign a

form of conditions of parole. In the instance, Judge

Jose L. Fuentes, J.S.C.; never sentenced petitioner to

CSL, nor was Petitioner ever advised of any sentence

called CSL or Megan’s Law at any time during

pretrial, during trial, or during the sentencing

proceedings. In State v. Pohlabel, 40 N.J. Super. 416,

423 (App. Div. 1956), it shows that "where there is a

conflict between the oral sentence and the written

commitment, the former will control if clearly stated

and adequately shown, since it is the true source of

the sentence, instead of the latter which is merely the

work of a clerk." 40 N.J. Super. 416, 423 (App. Div.

1956); see also State v. Abril, 444 N.J. Super. 553, 564

(App. Div. 2016) ("In the event of a discrepancy

between the court's oral pronouncement of sentence

and the sentence described in the judgment of

conviction, the sentencing transcript controls, and a

corrective judgment is to be entered."). In Wampler,2

the United States Supreme Court has approved of the

broad rule that “[tjhe judgment of the court

establishes a defendant’s sentence, and that sentence

may not be increased by an administrator’s

2 Hill v. United States exrel. Wampler, 298 U.S. 460 (1936).

12

amendment.” Earley, 451 F.3d at 75 (citing Greene v.

United States, 358 U.S. 326, 329 (1959) and Johnson

v. Mabry, 602 F.2d 167, 170 (8th Cir. 1979).

The United States Supreme Court has long

recognized that a defendant’s presence at critical

stages of criminal proceedings, particularly during

sentencing, is indispensable to the fairness and

integrity of the adjudicative process. In Sanders v.

United States, 411 U.S. 711 (1973), the Court

emphasized that the defendant must be afforded a

meaningful opportunity to participate in the

proceedings, a principle that is equally applicable in

the context of sentencing. This right is a necessary

component of due process under the Fifth

Amendment, as later extended to the states through

the Fourteenth Amendment.

In State v. Schubert, 212 N.J. 295, 309 (2012),

The New Jersey State Supreme Court stated, “It is

the Legislature, for example, that described

community supervision for life as a “special sentence

N.J.S.A. 2C43-6.4a. We cannot disregard sentence”

to be imposed by the sentencing court, such a clear

expression of the intent of the Legislature when it

enacted N.J.S.A. 2C43-6.4.” Sentencing is a uniquely

judicial responsibility. People v. Selikoff, 35 N.Y. 2d

227, 240-241 (1974); People v. Fuller, 57 N.Y. 152,

158'159 (1982) ("The court ... alone must impose the

sentence ..."); Seventy-seven years ago, the Supreme

Court established that the sentence imposed by the

sentencing judge is controlling: it is this sentence that

constitutes the court's judgment and authorizes the

custody of a defendant. Hill v. United States ex rel.

Wampler, 298 U.S. 460 (1936). Speaking for a

unanimous Court, Justice Cardozo announced a basic

13

principle of criminal sentencing: "The only sentencing

known to the law is sentence or judgment entered

upon the record of the court. Until corrected in a

direct proceeding, it says what it was meant to say

and this by an irrebuttable presumption." Id. 464.

"Any alteration to that sentence, unless made by a

judge in a subsequent proceeding, is of no effect."

Earley v. Murray, 451 F.3d 71, 75 (2d Cir. 2006)

Earley P} emphasis added), Any addition to that

sentence not imposed by the judge [is] unlawful." Id.

"If, as in Wampler, an erroneous order of commitment

prepared by the clerk of the court with the court's

knowledge cannot alter the sentence imposed by the

court, only the judgment of a court, as expressed

through the sentence imposed by a judge, has the

power to constrain a person’s liberty. Wampler, 298

U.S. at 464." Earley I, 451 F.3d at 75. See also Sudler

v. City ofNew York, 689 F.3d 159, 171 (2d Cir. 2012)

(administrative authorities have no power to alter a

sentence, because the imposition of a sentence is a

judicial act; only a judge can do it); Rivers v. Fisher,

390 Fed. Appx. 22, 24 (2d Cir. 2010) ("There is no

doubt that River's constitutional rights were violated

when the Department of Corrections administratively

imposed a 5-year term of supervised release that was

not orally pronounced by the sentencing judge").

Moreover, after imposing sentence in a defendant's

presence, the Court cannot thereafter increase the

sentence with defendant absent. Bartone v. United

States, 375 U.S. 52, (1963)- Sentencing is a uniquely

judicial responsibility. People v. Selikoff, 35 N.Y. 227,

240-241 (1974); People v. Fuller, 57 N.Y. 152, 158'159

(1982) ("The court... alone must impose the sentence

..."); People v. Farrar, 52 N.Y. 2d 302, 306 (1981) ("The

14

sentencing function rests primarily with the Judge,

whose ultimate obligation is to impose an appropriate

sentence."). Because the court is responsible for

sentencing, and because "the right to an open court in

criminal proceedings ... functions for the benefit of the

accused; that the public may see he is fairly dealt with

and not unjustly condemned, " Commonwealth v.

Lavoie, 464 Mass. 83, 86 (2013), quoting Waller v.

Georgia, 467 U.S. 39, 46 (1984), the judicial act of

sentencing promotes transparency and provides the

defendant with a prompt and definitive statement

regarding the consequences of his guilty plea or

conviction. As a result, it greatly facilitates a

defendant's knowledge of his or her obligation to

society, a defendant's decision as to whether to pursue

an appeal and the public's understanding of the

sentencing process. See Fine v. Commonwealth, 312

Mass. 252,256 (1942) ("Sentence is final judgment in

a criminal case, and that is the end of the case, apart

from statutory provisions, so far as concerns the usual

and ordinary control of the court"). Commonwealth v.

McLaughlin, 431 Mass. 506, 518 (2000) (inherent

power of trial judge to stay execution of sentence).

Compare United States v. Richardson, 925 F.2d at

117 ("We agree that if the executive branch had

unilateral power to directly and automatically ratchet

up a sentence ... [a] threat to the authority and

independence of the judicial branch ...").

In the instance, the Judgment of Conviction

was prepared on February 20, 1998, by the court clerk

Susan Smith. This was prepared outside of the

petitioner’s presence and was done 7 days after

petitioner was sentenced. Judge Fuentes sentenced

petitioner on February 13, 1998, and that sentence

15

imposed is the true and controlling sentence. The

court clerk’s mere act of checking off a box indicating

Community Supervision for Life (CSL) on the

judgment of conviction (JOC), (App., 48a) has resulted

in petitioner having to serve a sentence that has been

deemed punitive and more onerous than that of just

regular parole. The minimum time required to be

served on CSL is 15 years, then someone can petition

the court to ask to be removed from CSL and Megan’s

Law. Moreover, the fact that CSL was not part of the

orally pronounced sentence, petitioner was unaware

of CSL until he was ready to be released from prison.

Petitioner was denied the opportunity to challenge

CSL nor was petitioner represented by counsel when

CSL was added to the JOC. The New Jersey Appellate

Court states, petitioner was aware of the imposition

of CSL due to the many appeals following his

conviction. In the written opinion the court writes,

“Although CSL was not mentioned at defendant’s

sentencing hearing, the JOC entered seven days later

included a CSL provision. The court continues by

writing, defendant was on notice of the JOC, which

was the subject of his direct appeal and first PCR

petition. In both instances, defendant challenged

aspects of his sentence, but not the CSL provision in

the JOC.” In addition, the court writes that the

instance is distinguishable from State v. Schubert,

212 N.J. 295 (2012). In Schubert, prior to the plea

hearing Schubert executed the plea form and two

additional forms containing questions, one titled “For

Sexual Offenses” and the other titled “Additional

Questions for Certain Sexual Offenses.” These forms

are acknowledgment of someone pleading guilty and

being made aware of the requirements of Megan’s

16

Law and community supervision for life. Even though

in Schubert the court did not pronounce Megan’s Law

or CSL at the time of sentencing, Schubert had notice

of these conditions when he signed the forms and new

of them. Here in petitioner Anderson’s case, although

it was a trial and not a plea, there was never any

mention of Megan’s law or CSL at any time before

trial, after trial, or at the time of sentencing. Any

appeals or post convictions taken by defendant or

appointed counsel is not a substitute for where

defendant has been notified of CSL being applied to

the JOC even if that JOC was part of any appeals

filed. Since defendants are not present when the

written judgment is entered, the oral pronouncement

is controlling. United States v. Diggles, 957 F.3d 551

(5th Cir. 2020).

II.

THE ILLICIT ADDITION OF CSL AFTER

COMPLETION OF THE CUSTODIAL TERM

VIOLATES

DOUBLE

JEOPARDY

PRINCIPLES.

The fundamental principle governing criminal

sentencing is that the oral sentence pronounced on

the courthouse floor is the definitive judicial act that

constitutes the defendant’s sentence. As held

in Bartone v. United States, 375 U.S. 52 (1963), the

“sentence is a uniquely judicial act,” and its oral

pronouncement has irrevocable binding authority as

to the extent and nature of the punishment imposed.

The common-law principle—that the oral sentence

controls—provides that any subsequent written

judgment or clerical certificate must conform to what

was clearly and unambiguously stated in open court.

17

Indeed, as recognized in Hill v. United States ex rel.

Wampler, 298 U.S. 460 (1936), any deviation from the

sentence as orally pronounced renders the

subsequent written judgment void insofar as it

attempts to impose additional punishment. In the

present case, the sentencing judge clearly imposed a

custodial term during the sentencing proceeding, and

the orally pronounced sentence did not include any

additional punitive term of Community Supervision

for Life (CSL).

The Double Jeopardy Clause of the Fifth

Amendment, incorporated against the States by the

Fourteenth Amendment, protects a defendant from

being subjected to multiple punishments for a single

offense. The quintessential guarantee of double

jeopardy rests on a defendant’s reasonable

expectation that once the judicial summary of his

sentence is pronounced—in this instance, the oral

sentence—that

determination

finalizes

the

punishment. The subsequent addition of CSL to the

sentence after the defendant has served his custodial

term constitutes an impermissible "resentencing"

that directly undermines that finality. As the U.S.

Supreme Court has emphasized in Bartone,

“[sentencing is a uniquely judicial responsibility,”

and once the sentence has been imposed and

actuated, any later modification that increases the

deprivation of liberty must be strictly scrutinized

under double jeopardy principles.

The defendant, having completed his custodial

term in accordance with the orally pronounced

sentence, had a legitimate expectation that his

punishment was complete. The New Jersey Appellate

Court’s decision to remand for the erroneous inclusion

18

of CSL — a term that was not communicated to, nor

acknowledged by, the defendant at the time of his

sentencing - effectively seeks to re-impose

punishment for the same offense after finality has

attached. This is analogous to seeking a resentencing

in clear defiance of the doctrine of finality which lies

at the heart of protection against double jeopardy, as

reiterated in Hill v. United States ex rel. Wampler.

In State v. Schubert, 212 N.J. 295, 305 (Oct 22,

2012), the court writes, citing

State v.

Laird, 25 N.J.298, 305, 135 A.2d 859 (1957). A core

principle of “‘the jurisprudence of England and

America ... is that no man can be twice lawfully

punished for the same offense.”’ Ibid, (quoting Ex

parte Lange, 85 U.S. 163, (1874)). The court further

recognizes that, N.J. Ct. Rule 3:21-10, “was not

designed to authorize an enlargement of the

punishment after the sentence imposed had been

satisfied and the defendant discharged.” On

September 18, 2009, petitioner Anderson completed

his sentence and was discharged from custody from

the department of corrections. (App., 45a) Final

Discharge by Reason of The Expiration of His

Maximum Sentence. By ordering a remand to insert

the CSL term, the New Jersey Appellate Court is, in

effect, authorizing a resurrection of punitive

proceedings long concluded. The remand order, which

seeks to alter the finality of the sentenced custodial

term by introducing a new punitive element - CSL constitutes an impermissible alteration to a finalized

sentence. Once the defendant has served the term

imposed by the trial court’s unequivocal oral

pronouncement, any judicial attempt to impose an

additional sanction based on administrative or

19

clerical modifications breaches the prohibition

against multiple punishments for the same offense.

Moreover,

by

permitting

post

hoc

administrative corrections that alter the scope of a

sentence, the remand order ignores established

constitutional principles and extensive case law,

which demand that the judicial determination of a

sentence be final upon its effective execution. As

noted in Bartone and further articulated in Hill v.

United States ex rel. Wampler, the fundamental

fairness of the sentencing process requires that any

modifications increase a defendant’s punishment only

through a proper, contemporaneous judicial

determination—with the defendant present and

afforded full opportunity to be heard. From when the

JOC was prepared until petitioners' completion of his

sentence, petitioner was never called back before the

completion of that sentence to orally impose CSL.

Here, the administrative court clerk included an

additional punishment of CSL on petitioners JOC

which was not orally pronounced at the time of

sentencing. Moreover, the remand order itself, which

seeks to alter a final sentence by inserting CSL into

the

defendant’s

punishment

record

unconstitutionally reopens the sentencing process,

thereby subjecting the defendant to multiple

punishments for the same offense. Accordingly, the

defendant respectfully requests that this Court

recognize and remedy these constitutional violations

that impinge on double jeopardy principles. ,

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REASONS FOR GRANTING THE PETITION

Petitioner respectfully requests that this Court

grant the petition for writ of certiorari pursuant to

Rule 10, as the present case raises issues of national

import and involves clear federal constitutional

questions. In particular, the case presents a circuit

split and disagreement among the courts regarding

the controlling nature of an orally pronounced

sentence versus the later written judgment of

conviction. While established precedent has long held

that an unambiguous oral sentence control—see, e.g.,

United States v. Marquez, 506 F.2d 620 (2d Cir.)—the

New Jersey Appellate Division’s decision in this

matter validates a written judgment that modifies

that oral sentence by adding a harsher punitive term

(Community Supervision for Life) after the

defendant’s absence. This departure from the

controlling common-law principle not only raises a

significant conflict with lower courts, but it also

impacts the nationwide standard of procedural

fairness in sentencing, thereby warranting review by

this Court. In United States v. Villano, 816 F.2d 1448

(10Th Cir. 1987), the Tenth Circuit held that, “an

unambiguous oral pronouncement of sentence

controls when there is a conflict with the written

judgement and commitment order.” Id at 1450. Judge

Logan’s concurrence underscored the right to be

present at sentencing and the constitutional infirmity

of letting a clerk’s later JOC supersede the judge’s

spoken sentence. The decision in United States v.

Diggles, 957 F.3d 551, 556’57 (5th Cir. 2020), the Fifth

Circuit reaffirmed that a sentencing court’s spoken

pronouncement is the definitive act of sentencing, and

21

that post-sentencing administrative additions exceed

judicial authority and violated due process.

New Jersey jurisprudence echoes the "oral

controls" principle-but only imperfectly. In State v.

Rivers, 252 N.J. Super. 142 (App. Div. 1991), the

Appellate Division declared that any conflict must be

corrected in favor of the transcript of the oral

pronouncement. Yet in the decision below, the same

court validated an out-of-court JOC amendment that

added Community Supervision for Life without

Petitioner's presence. Similarly, while the New Jersey

Supreme Court in State v. Schubert, 212 N.J. 295

(2012), reiterated that special sentences must be

"imposed by the sentencing court," it did not confront

the procedural void when a clerk-absent the

defendant -incorporates such a term post hoc. This

split undermines the uniform administration of

federal criminal justice. A defendant in Denver

Colorado may see his oral sentence honored, while one

in Bayonne New Jersey may endure a harsher written

judgment entered outside his presence. Such

divergent treatment offends the Due Process Clause

by depriving defendants of the right to a transparent,

prompt, and authoritative sentencing determination.

It also compromises the Sixth Amendment right to be

present at "critical stages" of punishment, as

recognized in Gagnon v. Scarpelli, 411 U.S. 778, 782

(1973).

The petition further implicates critical federal

constitutional questions under the Fifth, Sixth, and

Fourteenth Amendments. Petitioner’s due process

rights are at issue because the added term of CSL

occurred in his absence—an essential stage of the

sentencing process that, under our jurisprudence,

22

must be conducted in the presence of the defendant to

ensure fairness and transparency. The practice of

preparing the Judgment of Conviction outside the

defendant’s presence and subsequently imposing a

harsher penalty contravenes the safeguarding

principles set forth in Bartone v. United States, 375

U.S. 52, (1963), as well as in numerous Supreme

Court decisions emphasizing that the defendant must

be present at all critical stages of the sentencing

process. Moreover, the imposition of an additional

punitive term after the oral sentence—without an

unequivocal waiver—raises serious double jeopardy

concerns, as it effectively increases the punishment

post-sentencing,

contrary

to

longstanding

constitutional safeguards.

The issues presented herein are not only

pivotal to Petitioner’s rights but also bear significant

nationwide importance. Ensuring that sentencing

adheres strictly to the controlling oral pronouncement

is fundamental to maintaining the integrity of the

judicial process and the public’s confidence in the

fairness of criminal adjudication. Moreover, the

circuit split regarding whether the oral sentence or

the subsequent written commitment should prevail

further underscores the need for this Court’s review

to achieve uniformity in the application of these

essential principles.

For the foregoing reasons, and in light of the

established standards embodied in Rule 10 and the

seminal cases such as United States v. Marquez, 506

F.2d 620 (2d Cir. 1974),

and Bartone v. United

States, 375 U.S. 52, (1963), this Court should grant

the petition for certiorari to resolve the conflicting

interpretations and to ensure that constitutional due

23

process and double

uniformly applied.

jeopardy

protections

are

CONCLUSION

This Court should grant the petition for writ of

certiorari.

Respectfully Submitted,

FRANK J. ANDERSON JR.,

193 West 48Th Street

Bayonne, NJ 07002

908-249-5942

24