Petition — New Jersey v. Ryan

Supreme Court brief1981

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' & 0 “te l 5 1 ors. supreme Court US.

9 1981

Ly THE aati ity TEVAS,

Supreme Cowt of the United States

Octosrr Trem, 1980

STATE OF NEW JERSEY,

Petitioner,

v8.

EDWARD RYAN,

Respondent.

On Writ of Certiorari to the New Jersey Supreme Court

PETITION FOR WRIT OF CERTIORARI

JaMes R. Zazzatt,

Attorney General of New Jersey,

Attorney for Petitioner, State of

New Jersey,

State House Annex,

Trenton, New Jersey 08625.

Joun DeCicca,

Assistant Attorney General,

Division of Criminal Justice,

CN 24

13 Roszel Road,

Princeton, New Jersey 08540.

(609) 452-9500

Of Counsel.

Rocky L. Peterson,

Deputy Attorney General,

nm the Petition.

Adams Press Corp., 5 Commerce Street, Newark, N. J. 97102—(201) 623-8611

Question Presented for Review

Whether the Double Jeopardy Clause of the Fifth

Amendment precludes an increase in a custodial sentence

after the original sentence has been partially executed?

TABLE OF CONTENTS

QueEstTION PRESENTED FoR REVIEW i

Opinions BELOw

JURISDICTION

Constitution, Statutes AND Ruxes INVOLVED ..........-.--

United States Constitution

New Jersey Statute—Title 2A

New Jersey Statute—Title 2C

New Jersey Rules of Court

oo —~ PP © DD DO bo _

STATEMENT OF THE CASE

Reasons For GRANTING THE WRIT:

Point I—The Double Jeopardy Clause of the

Fifth Amendment does not prevent the impo-

sition of an increased term of imprisonment

after partial execution of the original sentence 9

A. Non-finality of sentence in cases involving rev-

ocation of probation 10

B. Partial execution of a sentence is not a consti-

tutional bar to an increased sentence upon

revocation of probation 12

C. Impact on government’s right to appeal .......... 18

Conciusion 20

TABLE OF CONTENTS iii

: PAGE

APPENDIX:

A-—Opinion of the Supreme Court of New Jer-

sey la

Concurring and Dissenting Opinion of

' Schreiber, J. 17a

B—Opinion of the Superior Court of New Jer-

sey, Appellate Division 25a

C—Order of the Supreme Court of New Jersey

Granting Stay of the Judgment .................... 40a

: Cases Cited

Albernaz v. United States, —— U.S. —, 67 L. Ed.

2d 275 (1981) 15

Benton v. Maryland, 395 U.S. 784 (1969) -...............0-+-- 11

Bullington v. Missouri, US. , 29 Cr. L. Rptr.

2023 (May 4, 1981) 9-12

Chaffin v. Stynchcombe, 412 U.S. 17 (1978) .................. 12

Green v. United States, 355 U.S. 184 (1957) .................. 18

Lange, Ex parte, 85 U.S. 163 (1874) 14

Murphy v. Massachusetts, 177 U.S. 155 (1900) .............. 18

North Carolina v. Pearce, 395 U.S. 711 (1969) ..10, 12, 16-18

Roberts v. United States, 320 U.S. 264 (1943) .............. 11, 14

State v. Cunningham, 143 N.J. Super. 415, 363 A. 2d

- 871 (App. Div. 1976) ....... 10

State v. Driesse, 95 N.J. Super. 491, 231 A. 2d 835

(App. Div. 1967) 10

State v. Pallitto, 107 N.J. Super. 96, 257 A. 2d 121

(App. Div. 1969), certif. den. 55 N.J. 309, 261 A. 2d

354 (1970) 10

iv ‘TABLE OF CONTENTS

| PAGE

State v. Ryan, 171 N.J. Super. 427, 409 A. 2d 821

_ (App. Div. 1979) certif. granted 82 N.J. 297, 412 A.

2d 802 (1980) 1,8

State v. Ryan, N.J. : A. 2d —— (1981) 1

Stroud v. United States, 251 U.S. 15 (1919) ................ 12

United States v. Benz, 282 U.S. 304 (1931) 2.0.22... 14

United States v. DiFrancesco, 449 U.S. ——, 66 L.

Ed. 2d 328 (1980) 5, 8-18

United States v. Scott, 437 U.S. 82 (1978) .................... 18

White In re, 18 N.J. 449, 114 A. 2d 261 (1955) ......10, 11, 14,

15, 17

United States Constitution Cited

Fifth Amendment (Double Jeopardy Clause) ......2, 5, 9,11,

12, 14, 20

Fourteenth Amendment 11

Statutes Cited

N.J.S.A. 2A :94-1 5

N.J.S.A. 2A :119-2 5

N.J.S.A. 2A :168-2 6

N.J.S.A. 2A 3168-4 2, 7, 8, 10, 14, 17

N.J.S.A. 2C :44-1f(2) 19

N.J.S.A. 2C :44-7 19

N.J.S.A. 2C :45-3 4,10

N.J.S.A. 2C :45-3(b) 14

TABLE OF CONTENTS Vv

PAGE

28 U.S.C. :

_ See, 1257(3) .. 2

Rules Cited

F. R. Crim. P. 35 17

N. J. Ct. R. 2:9-4(d) 7 19

N. J. Ct. BR. 3:21-7 6, 16

N. J. Ct. RB. 3:21-10 6, 16, 17

N. J. Ct. R. 3:21-10(b) 4

Sup. Ct. R. 17.1(¢) 20

Other Authority Cited

Dunsky, The Constitutionality of Increasing Sen-

tences on Appellate Review, 69 J. Crim. L. and

Criminology, 19 (1978) 14

NO.

In THE

Suprene Court of the Unites States

Ocroser Term, 1980

STATE OF NEW JERSEY,

Petitioner,

vs.

EDWARD RYAN,

Respondent.

On Writ of Certiorari to the New Jersey Supreme Court

——

PETITION FOR WRIT OF CERTIORARI

Opinions Below

The opinion of the New Jersey Supreme Court, cap-

tioned State v. Ryan, —— N.J. ——, —— A. 2d ——

(1981), appears in the Appendix (A1, et seg.). The opin-

ion of the Superior Court of New Jersey, ‘Appellate Di-

vision, similarly captioned, appears in 171 N.J. Super.

427, 409 A. 2d 821 (App. Div. 1979) and in the Ap-

pendix. (A 28 et seq.).

Jurisdiction

The jurisdiction of this Court is invoked pursuant to

28 U.S.C. Section 1257(3). The opinion of the New Jer-

sey Superior Court, Appellate Division affirming respond-

ent’s sentence was rendered on December 4, 1979. (A 25).

On April 20, 1981, the New Jersey Supreme Court re-

versed the Appellate Division holding that the enhance-

ment of respondent’s custodial term of 3 to 5 years to

5 to 7 years following a violation of probation violated

the Double Jeopardy Clause of the Fifth Amendment

of the United States Constitution. The alleged constitu-

tional infirmity was premised solely upon the fact that

the original sentence had been partially executed. (A 1).

On May 20, 1981, the New Jersey Supreme Court granted

petitioner’s timely motion for a stay pending disposition

of the instant petition. (A 40).

Constitution, Statutes and Rules Involved

United States Constitution

Amendment V—Capital Crimes; Double Jeop-

ardy; Self-Incrimination; Due Process; Just Com-

pensation for Property

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a present-

ment or indictment of a Grand Jury, except in

cases arising in the land or naval forces, or in

the Militia, when in actual service in time of War

or public danger; nor shall any person be sub-

ject for the same offence to be twice put in jeop-

ardy of life or limb; nor shall be compelled in

any criminal case to be a witness against himself,

nor be deprived of life, liberty, or property, with-

out due process of law; nor shall private prop-

erty be taken for public use, without just com-

pensation.

New Jersey Statute—Title 2A

N.J.S.A. 2A:168-4. Termination or extension of

probation; violation of conditions; arrest and de-

tention; sentence; powers of judge other than trial

judge

Upon a report from the chief probation officer

that the probationer has complied with the con-

ditions of probation and that the best interests of

the public and the probationer will be subserved

thereby or for other good cause, the court may,

at any time, discharge a person from probation,

or may extend the probation period within the li-

mits of the maximum period provided by section

2A :168-1 of this title.

At any time during the probation period the court

may issue a warrant and cause the probationer

to be arrested for violating any of the conditions

of his probation, or any probation officer, police

officer, or other officer with power of arrest, upon

the request of the chief probation officer, may ar-

rest the probationer without a warrant; and a com-

mitment by such probation officer setting forth that

the probationer has, in his judgment, violated the

conditions of his probation shall be sufficient war-

rant for the detention of such probationer in the

County jail, house of detention or local prison, when

designated in the commitment, until he can be brought

before the court. Such probation officer shall forth-

with report such arrest or detention to the court

- and submit to the court a report showing the man-

ner in which the probationer has violated his pro-

bation. Thereupon the court, after summary hear-

ing, may continue or revoke the probation and the

suspension of sentence, and may cause the sentence

imposed to be executed or impose any sentence which

might originally have been imposed.

New Jersey Statute—Title 2C

N.J.S.A. 2C :45-3 Summons or Arrest of Defendant

Under Suspended Sentence or on Probation; Com-

mitment Without Bail; Revocation and Resentence.

b. When the court revokes a suspension or proba-

tion, it may impose ou the defendant any sentence

that might have been imposed originally for the of-

fense of which he was convicted. ,

New Jersey Rules of Court

R. 3:21-10(b): Reduction or Change of Sentence

(b) Exceptions. A motion may be filed and an order

may be entered at any time (1) changing a custodial

sentence to permit entry of the defendant into a

custodial or non-custodial treatment or rehabilita-,

tion program for drug or alcohol abuse, or (2)

amending a custodial sentence to permit the release

of a defendant because of illness or infirmity of the

defendant or (3) changing a sentence for good cause

shown upon the joint application of the defendant

and prosecuting attorney, or (4) changing a sentence

as authorized by the Code of Criminal Justice.

Statement of the Case

This is a petition for writ of certiorari to review a final

decision rendered by the New Jersey Supreme Court. That

court reversed a judgment of the New Jersey Superior

Court, Appellate Division, and held that the Double Jeop-

ardy Clause of the United States Constitution precludes

the imposition of an increased sentence after a violation

of probation when the original custodial sentence has been

partially executed. The opinion of the court was written

by Justice Robert L. Clifford and was joined by five other

justices. Justice Sidney M. Schreiber dissented on the

ground that this Court’s opinion in United States v. Di-

Francesco, 449 U.S. ——, 66 L. Ed. 2d 328 (1980) strongly

supports the proposition that a defendant’s original custo-

dial sentence term may be increased upon violation of pro-

bation regardless of the fact that the original custodial

term was partially executed. Justice Schreiber similarly

noted that a defendant should not have any expectation

of finality in a sentence which has been suspended subse-

quent to the partial service of a custodial term.

Respondent’s appeal of his sentence evolved from two

indictments returned by the Grand Jury of Monmouth

County, New Jersey on August 2, 1973. Specifically, In-

dictment No. 1388-72 charged respondent with two counts

of breaking and entering with intent to steal in violation

of N.J.S.A. 2A:94-1 and two counts of larceny in violation

of N.J.S.A. 2A:119-2. Indictment No. 1389-72 charged re-

spondent with two counts of breaking and entering with

intent to steal in violation of N.J.S.A. 2A:94-1 and larceny

contrary to the provisions of N.J.8.A. 2A:119-2.

On November 13, 1973, Accusation No. A-253-73 charged

respondent with two counts of breaking and entering with

intent to steal in violation of N.J.S.A. 2A:94-1. Finally,

Municipal Complaint No. W-598011 (Mise. No. 3568)

charged respondent with the disorderly persons offense of

stealing. That same day, respondent entered retraxit pleas

of guilty to all of the above charges.

On January 4, 1974, respondent was sentenced by the

trial court to an aggregate term of three to five years in

State Prison. Respondent was re-sentenced on January 4,

1974 by the trial court to the Monmouth County Correc-

tional Institution for a six month term concurrent to the

State Prison term on the disorderly persons offense.

Pursuant to N.J. Ct. R. 3:21-10, (Reduction or change

of sentence) respondent’s sentences were again changed on

July 2, 1974. Respondent received a suspended term of in-

carceration and was transferred to a drug treatment pro-

gram. He was also placed on two years probation. The

order made effective August 1, 1974, required respondent

to abide by the rules and regulations of the treatment

facility and the Probation Department. N.J.9.A. 2A :168-2

and N.J.Ct.R. 3:21-7

On February 14, 1977, respondent was cited for viola-

tion of probation in that: (1) On November 24, 1975, he

was convicted in municipal court of the disorderly persons

offense of growing marijuana; (2) he absconded from

probation supervision and was missing since January 5,

1976; and (3) he changed his place of residence and left

New Jersey for more than 24 hours, both without permis-

sion of his probation officer. (T2-8 to 16).*

At the violation of probation hearing on February 18,

1977, respondent pled guilty to absconding from the super-

1“T” refers to probation violation hearing on February 18,

1977.

- “2T” refers to sentencing on February 25, 1977.

“PSR” refers to pre-sentence report.

vision of the probation department and leaving the State

without permission (T3-19 to 4-5). The hearing was then

adjourned for one week. (T28-3 to 21).

By February 25, 1977, the date of the second hearing,

the court had received new information that seven de-

tainers had been lodged against respondent. (2T2-17 to

18). In fact, respondent was then serving 30 days for mali-

cious damage and larceny (2T18-19), and had just pled

guilty to a contempt of court charge for which he had been

given a 30 day sentence. (2T3-4 to 8). The court there-

after sentenced respondent to an aggregate term of five to

seven years in State Prison. This sentence represented an

increase of two years over the previous custodial sentence.

(2T10-16 to 11-24). Respondent was given credit for 219

days spent in custody. Finally, respondent was again sen-

tenced on the municipal complaint to six montis in the

Monmouth County Correctional Institution to run concur-

rently with the State Prison terms.

On April 6, 1977, respondent filed a Notice of Appeal to

the Superior Court of New Jersey, Appellate Division. In

his brief, respondent raised several issues including the

alleged unconstitutionality of an increased custodial sen-

tence after partial execution of the original term. Respond-

ent also contended that if N.J.S.A. 2A:1684 permitted

an increased sentence after the original sentence has been

partially satisfied, then it violated the Double Jeopardy

Clause of the United States Constitution.

On December 4, 1979, the New Jersey Superior Court,

Appellate Division, upheld the increased sentence given re-

spondent. The court determined that where a prison term

was partially served when the balance of the term was

suspended and respondent was placed on probation, double

jeopardy concepts do not preclude the imposition of a new

and greater sentence in place of the suspended sentence

when respondent violates conditions of his probation, State

v. Ryan, 171 N.J. Super. 427, 409 A, 2d 821 (App. Div.

1979) (A 25 et seq.).

Respondent petitioned for certification in the New Jer-

sey Supreme Court. That petition was granted on Febru-

ary 11,1980. 82 N.J. 297, 412 A. 2d 802 (1980). In its sup-

plemental brief to the New Jersey Supreme Court, re-

spondent contended that double jeopardy considerations

made it impermissible to apply N.J.S.A. 2A:168-4 to an

offender after service of his state prison term has begun.

In its reply brief, petitioner argued that the imposition

of an increased sentence after execution of the original

sentence does not violate the principles of double jeopardy.

On April 20, 1981, the New Jersey Supreme Court re-

versed the decision of the Appellate Division, vacated the

increased term of five to seven years and reinstated the

original sentence of three to five years, The New Jersey

Supreme Court held that double jeopardy considerations

militate against increasing a defendant’s prison sentence

after violation of probation when he has already served

a portion of that custodial term, The court distinguished

United States v. DiF rancesco, 449 U.S. , 66 L.Ed, 2d

828 (1980) as not addressing the issue of partial execu-

tion ‘of sentence as raised by respondent. The New Jer-

sey Supreme Court further distinguished Dil’rancesco by

noting that, unlike the defendant in Dil’rancesco, respond-

ent here had no reason to expect that his sentence was not

final at the time it was imposed and his imprisonment

began,

In a dissenting opinion, Justice Sidney Schreiber found

that application of the facts and holding of Dil’rancesco

to the factual pattern of the instant matter indicated the

absence of a double jeopardy obstacle. Justice Schreiber

argued that the pronouncement of :«tence has never car-

ried the finality that attaches to a judgment of acquittal,

particularly where the State legislature has removed any

expectation of finality by providing for an increased term

of imprisonment following a violation of probation.

On May 4, 1981, petitioner moved in the New Jersey

Supreme Court for a stay of judgment pending the filing

of a petition for certiorari to this Court. On May 18, 1981,

petitioner informed the New Jersey Supreme Court of this

Court’s recent decision in Bullington v. Missowi, —— U.S.

——, 29 Or. L. Rptr. 2023 (May 4, 1981), as further sup-

port of its motion for a stay. On May 20, 1981, petitioner’s

motion for a stay pending determination of its petition

for certiorari to this Court was granted. (A 40).

Petitioner now petitions this Court for a writ of cer-

tiorari to review the decision of the New Jersey Supreme

Court.

REASONS FOR GRANTING THE WRIT

POINT I

The Double Jeopardy Clause of the Fifth Amendment

does not prevent the imposition of an increased term of

imprisonment after partial execution of the original

sentence.

The decision of the New Jersey Supreme Court that the

Double Jeopardy Clause of the Constitution precludes the

imposition of any increased sentence after violation of

probation when the original sentence has been partially

executed is not consistent with the Constitution and con-

flicts with two recent decisions of this Court, The deci-

sions in United States v. Dif rancesco, 499 U.S. ——, 66

L.Ed, 2d 328 (1980) and Bullington v. Missouri, —— U.S.

——, 49 U.S.L.W. 4481 (1981) indicate that there is no

constitutional barrier to increasing a sentence after ini-

tial imposition. This Court has also approved and found

no constitutional prohibition in instances where the orig-

inal sentence has been increased after partial execution of

that sentence. North Carolina yv. Pearce, 395 U.S. 711

(1969). Prior to ad*vessing the central issue regarding

the constitutionality of increasing a partially executed sen-

tence, a brief review of the relevant New Jersey statutes

and precedent is in order.

A. Non-finality of sentence in cases involving revocation

of probation.

The New Jersey State Legislature has provided in

N.J.S.A. 2A:168-4 and its successor statute, N.J.S.A.

2C :45-3(b) (effective September 1, 1979), that following a

revocation of probation or suspended sentence, the court

may impose any sentence which might originally have been

imposed for the underlying offense. Under N.J.S8.A.

2A :168-4 a court would typically impose a custodial term,

e.g. 8 to 5 years, suspend it and place the defendant on

probation for a specified period, When probation is re-

voked in such cases the above cited statutes clearly em-

powered a sentencing court to impose an increased sen-

tence, e.g. 5 to 7 years, which would then be served by

the defendant. New Jersey courts have consistently up-

held the propriety of such an increase in the face of

constitutional challenges. In re White, 18 NwJ. 449, 454

114 A, 2d 261 (1955) ; State v. Cunningham, 143 N.J. Super.

415, 417, 363 A. 2d 871 (App. Div. 1976); State v. Pallitto,

107 N.J. Super. 96, 100, 257 A. 2d 121 (App. Div. 1969),

certif. den. 55 N.J. 309, 261 A. 2d 354 (1970); State v.

Driesse, 95 N.J. Super. 491, 494, 231 A. 2d 835 (App. Div.

1967).

The underlying philosophy which removes this practice

from the limitations of the Fifth Amendment Double

Jeopardy Clause’ was initially set forth in the dissenting

opinion of Mr. Justice Frankfurter in Roberts v. United

States, 320 U.S. 264, 274 (1943) and cited with approval

in In re White, supra, 18 N.J. at 455, 114 A. 2d at 264-265:

To treat the pronouncement of a term sentence

as a kind of bargain whereby the probationer knows,

no matter what, he cannot be put in prison beyond

the term so named is to give a wholly unreal inter-

pretation to the procedure. We certainly should not

countenance the notion that a probationer has a

vested interest in the original sentence nor encour-

age him to weigh the length of such a sentence

against any advantages he may find in violating his

probation. To bind the court to such a sentence is

undesirable in its consequences and violative of the

philosophy of probation.

From the above, it is obvious that Mr, Justice Frank-

furter was alluding to the non-finality of a sentence, par-

ticularly where it has been suspended and a probationary

term is imposed pursuant to a statutory scheme. Simi-

larly, this Court has reaffirmed that a criminal sentence,

once pronounced, does not have to be accorded the con-

stitutional finality and conclusiveness as that which at-

taches to a jury’s verdict of acquittal, United States v.

DiF rancesco, supra, 499 U.S. , 66 L. Ed, 2d at 343.

Although this doctrine was recently narrowed in Bulling-

ton v. Missouri, supra, —— U.S. ——, 49 U.S.L.W. 4481,

the sentence hearing there resembled a trial on the issue

of guilt or innocence in which the prosecution was required

2 As made applicable to the States through the Fourteenth Amend-

ment. Benton v. Maryland, 395 U.S. 784, 794 (1969).

to prove additional facts in order to justify a particular

sentence, In that situation, where the imposition of a

particular sentence can be regarded as an “acquittal” of

any more severe sentence that could have been imposed,

the protection afforded by the Double Jeopardy Clause is

available to a defendant. Bullington v. Missouri, supra,

— U.S. at » 49 U.S.L.W. at 4483. Absent the above

sentencing process,® which is not present in the instant mat-

ter, it seems beyond cavil that the Double Jeopardy Clause

does not apply equally to sentencing as it does to deter-

minations of guilt or innocence. Chaffin v. Stynchcombe,

412 U.S. 17, 24 (1973); North Carolina v. Pearce, supra,

395 U.S. at 720; Stroud v. United States, 251 U.S. 15

(1919); United States v. DiF rancesco, swpra, 449 U.S. at

, 66 L.Ed. 2d at 343.

B. Partial execution of a sentence is not a constitutional

or lop ge eta it emma tal ce

The focal point of this petition and the New Jersey Su-

preme Court opinion is whether partial execution of a

‘custodial sentence precludes an increase of that sentence.

In determining this question in the affirmative, the New

Jersey Supreme Court relied solely on the Fifth Amend-

ment of the United States Constitution:

®Even though in DiFrancesco like Bullington, the presecution

was required to prove additional facts at a separate procedure to

sentence defendant as a “dangerous special offender,” it was not

a de novo proceeding. Also, the burden of proof in DeFrancesco

was merely a preponderance of the evidence with the choices of

punishment being far greater. For these reasons, the Bullington

Court distinguished DiFrancesco as being inapposite to their con-

cerns. Jd. at U.S. ,49 U.S. L. W. at 4484.

[S]imply stated the contention [here] is that jeop-

ardy attached as soon as defendant commenced

serving his prison term, hence principles of double

jeopardy foreclosed the imposition of any increased

term after violation of probation. We agree. State

v. Ryan, —— NJ. » ‘ A.2d ——, —,

1981. (Alla).

In an attempt to distinguish State v. DiFrancesco,

supra, from the instant matter, the New Jersey Supreme

Court determined that the issue raised by respondent,

i.e. whether double jeopardy considerations militate against

increasing respondent’s prison sentence after violation of

probation when he has already served a portion of the

custodial term, was specifically left open by the DiF'ran-

cesco court. The New Jersey Supreme Court obviously

felt the crucial difference was the partial execution of re-

spondent’s original sentence and relied on a quote from

Justice Blackmun:

[O]ur Double Jeopardy clause was drafted with the

common law protections in mind. This accounts for

the established practice in the federal courts that

the sentencing judge may recall the defendant and

increase his sentence, at least (and we venture no

comment as to this limitation) so long as he has not

begun to serve that sentence.

United States v. DiFrancesco, supra, —— U.S. at ——,

66 L. Ed. 2d at 344 (citations omitted) (emphasis added).

In his dissent, Justice Schreiber of the New Jersey Su-

preme Court noted that the above quotation only referred

to situations in which the sentencing judge recalls a de-

fendant who is not on bail to correct an erroneous sen-

tence.

More importantly, it does appear that the majority in

DiF rancesco did discuss the execution of a sentence with

regard to the Double Jeopardy Clause. The language of

the Court indicates that the two decisions traditionally

cited in support of the proposition that jeopardy attaches

at the beginning of execution of sentence thereby barring

any increase of sentence, United States v. Benz, 282 U.S.

304, 307 (1931) and Ex parte Lange, 85 U.S. 163, 174

(1874), do not, in fact, stand for that proposition. United

States v. DiF rancesco, supra, 449 U.S. at ——, 66 L. Ed.

2d at 347. Justice Blackmun noted that in Lange the stat-

ute involved authorized imprisonment up to one year or a

fine. Thus, no double jeopardy problem would have existed

if the statute had provided punishment of both fine and

imprisonment. For these reasons, the majority deter-

mined that “the holding in Lange, and thus the dictum in

Benz, are not susceptible of general application. We con-

fine the dictum in Bene to Lange’s specific context.” Id.

As one commentator has observed, the decisions applying

the dictum of Benz did not consider whether statutory pro-

visions postponing sentence finality also postponed sen-

tence jeopardy. Dunsky, The Constitutionality of Increas-

ing Sentences on Appellate Review, 69 J. Crim. L. and

Criminology, 19, 32 (1978).

Despite the clear pronouncements from this Court and

itself in In re White, swpra, as to the non-finality of sen-

tence, the New Jersey Supreme Court determined that

here respondent “had no reasons to expect that his original

sentence was not final at the time it was imposed and his

imprisonment began.” (A 13). Not only is such a finding

contrary to the philosophies of probation set forth in Rob-

erts v. United States, supra, it is directly contrary to the

clear intent of the New Jersey Legislature.* As observed

* Although not expressly doing so, the opinion of the New Jer-

sey Supreme Court appears to render any increased term imposed

pursuant to N.J.S.A. 2A:168-4 or 2C:45-3(b) unconstitutional,

at least where there has been a partial execution.

by Mr. Justice Oliphant in In re White, supra 18 N.J. at

454, 114 A. 2d at 264:

[Bly what more plain or strong language could

the [N.J.] Legislature express its intention that the

judge should be authorized to revoke the original

sentence, the suspension thereof and the probation

and impose any sentence which could be statutorily

given for the crime committed?

This contravention of the legislative intent is important

because

[T]he question of what punishments are constitu-

tionally permissible is not different from the ques-

tion of what punishment the Legislative Branch in-

tended to be imposed. Where Congress intended ...

to impose multiple punishment, imposition of such

sentences does not violate the Constitution.

Abernaz v. United States, US. , 67 L.Ed. 2d 275,

285 (1981). Clearly, Mr. Justice Schreiber was correct in

asserting that the multiple punishment feature of the

Double Jeopardy Clause only prevents the subjection of a

defendant to punishment in excess of that prescribed by

the legislature.

Therefore, in light of the New Jersey Supreme Court

finding that respondent had no reason to expect that this

original sentence was not final, the following is appropri-

ate:

Although it might be argued that the defendant per-

ceives the length of his sentence as finally deter-

mined when he begins to serve it, and that the trial

judge should be prohibited from thereafter increas-

ing the sentence, that argument has no force where,

as in the dangerous special offender statute, Con-

gress has specifically provided that the sentence is

subject to appeal. Under such circumstances there

can be no expectation of finality in the original sen-

tence.

United States v. DiF rancesco, supra, 449 U.S. at » 66

L.Ed. 2d at 347. [citations omitted] Here, the New Jersey

Legislature has specifically provided in its probation stat-

utes that, upon revocation of probation, the sentencing

court may impose any sentence which might originally have

been imposed. Respondent should not therefore assert

claims of double jeopardy when, having voluntarily agreed

to the conditions of probation (N.J.Ct.R. 3:21-7), he vio-

lated those terms and is resentenced in accordance with the

statutory scheme for such a violation. Under these cireum-

stances there can be no expectation of finality in the origi-

nal sentence.

Another aspect of this discussion of the increase of a

partially executed sentence is the “waiver” argument of

North Carolina v. Pearce, swpra. In Pearce, this Court

permitted an increased sentence after partial execution

of the initial sentence. However, the New Jersey Supreme

Court attempted to distinguish Pearce. That court felt

that the principle derived from North Carolina v. Pearce,

supra, 395 U.S. at 723-26 that a more severe sentence upon

reconviction is permitted when justified by defendant’s sub-

sequent conduct, absent any motive of retaliation, was not

applicable to this situation because the original conviction

here had not been nullified and the “slate wiped clean.” Jd.

at 321; (A18-19). Justice Clifford argued that respond-

ent’s use of N.J.Ct.R. 3:21-10° to modify his sentence re-

5 Petitioner submits that the procedural background of this matter

is not a bar to the resolution of the main issue before this Court,

(Footnote continued on following page)

sulted only in a suspension of his original sentence pending

successful completion of the drug rehabilitation program

and probationary term, not in a vacation or annulment of

his sentence. The sentence was only temporarily inopera-

tive. (A 19).

Petitioner submits that the dissent below correctly notes

that if respondent had been incarcerated pending trial,

convicted, given a suspended custodial sentence, and placed

on probation, an increased sentence would not be barred

by the principles of double jeopardy. In re White, supra.

Similarly, any incarceration prior to subsequent granting

of a new trial which resulted in an increased sentence

would pose no constitutional problem. North Carolina v.

Pearce, supra.’ “Tf in these circumstances the sentencing

slate is wiped clean, why it is not equally so where the

defendant has violated his probation which had been

granted at his request after commencement of his incar-

ceration?” (A 26).

Petitioner stresses, however, that it is not saying that

respondent has waived his double jeopardy rights by pur-

suing the original modification of his sentence. This Court

(Footnote continued from preceding page)

i.e., the propriety of an increased sentence after partial execution

of the original. As in F. R. Crim. P. 35, a motion for a modi-

fication or reduction of sentence pursuant to N.J.Ct.R. 3:21-10

can not result in an increased sentence. However, the increase

here was a result of respondent’s subsequent violation of proba-

tion. (N.J.S.A. 2A:168-4).

® Note that if any rule of finality had applied to the pronounce-

ment of a sentence, the original sentence in Pearce would have

served as a ceiling on the one imposed at retrial. United States

v. DiFrancesco, supra, 449 U.S. at , 66 L. Ed. 2d. at 344-345.

See discussion of finality above.

has rejected the idea that through an appeal, a defendant

waives his double jeopardy protections. Green v. United

States, 355 U.S. 184, 191-92 (1957). However, it has also

been recognized that the Double Jeopardy Clause does not

relieve a defendant from the consequences of his voluntary

choice. United States v. Scott, 487 U.S. 82, 99 (1978). A

convicted person should not be allowed by his own act to

_avoid the jeopardy in which he stands and then assert it

as a bar to subsequent jeopardy.. Murphy v. Massachu-

setts, 177 U.S. 155, 161 (1900). Here the increased set

tence given respondent simply reflected his non-amenabil-

ity to reform, which, as the New Jersey Supreme Court

concedes, “is an appropriate concern at the time of sen-

tencing after reconviction.” (A 18). Again, the New Jer-

sey Supreme Court has misinterpreted a decision of this

Court (Pearce)' and incorrectly applied the Double Jeop-

ardy Clause.

C.. Impact on government’s right to appeal

The decision of the New Jersey Supreme Court is sig-

nificant not only to cases involving probation, but also to

the ability of the government to appeal excessively lenient

sentences. The New Jersey Supreme Court determined

that jeopardy attaches once a defendant has commenced

serving his prison term. Such a bold assertion (whether

correct or not) has a substantial impact on the availability

of government appellate review of lenient sentences, If

the New Jersey precedent is allowed to stand, then sen-

7 While Pearce dealt with the imposition of a new sentence after

retrial rather than, as here, a new sentence following a violation

of probation, that difference is no more than a “conceptual nicety.”

United States v. DeFrancesco, supra, 449 U.S. at , 6 L. Ed.

2d at 345.

tencing courts would have their sentences isolated from

appellate review (N.J.S.A. 2C:44-7), by immediate com-

mencement of execution® of a sentence or by the court deny-

ing the government’s motion for stay of execution. With

jeopardy having attached upon execution, the State would

be precluded from appealing an excessively lenient sen-

tence. Thus, while not specifically addressing the issue,

the New Jersey Supreme Court has seemingly foreclosed

government appeals of lenient sentences in many cases,

Such a result would not be in keeping with State and Fed-

eral statutes permitting such review.

8 N.J.S.A. 2C:44-1£(2) states a sentence shall not become final

for 10 days to permit an appeal by the prosecution where a non-

custodial or probationary term is imposed for a first or second

degree offense. N.J.Ct.R. 2:9-4(d) states a sentence may be stayed

upon application of the State. Such a stay is not mandatory, how-

ever, and the failure to obtain a stay would eliminate the State’s

statutory appeal rights.

CONCLUSION

This Court should grant this petition for certiorari

because the New Jersey Supreme Court has incorrectly

decided an important question of federal law (whether

the Double Jeopardy Clause of the Fifth Amendment

applies to a partially executed sentence) which requires

resolution by this Court, particularly as the decision

below directly conflicts with applicable decisions of this

Court. See R. 17.1(c).

Respectfully submitted,

JaMes R. Zazzaut,

Attorney General of New Jersey,

Attorney for Petitioner, State of

New Jersey.

By: Jonn DeCicco,

Assistant Attorney General.

Joun DeCicco,

Assistant Attorney General,

Of Counsel.

Rocky L. Peterson,

Deputy Attorney General,

nm the Petition.

APPENDIX A

Opinion of the Supreme Court of New Jersey

SUPREME COURT OF NEW JERSEY

A-15 September Term 1980

STATE OF NEW JERSEY,

Plaintiff-Respondent,

EDWARD JOSEPH RYAN,

Defendant-Appellant.

Argued October 7, 1980—Decided April 20,1981

On certification to the Superior Court, Appellate Divi-

sion, whose opinion is reported at 171 N.J.Super. 427

(1979).

Gerald P. Boswell, Assistant Deputy Public Defender,

argued the cause for appellant (Stanley C. Van Ness,

Public Defender attorney; Susan Slovak, Assistant Deputy

Public Defender, of counsel and on the briefs).

Rocky L, Peterson, Deputy Attorney General, argued

the cause for respondent (John J. Degnan, Attorney

General of New Jersey, attorney).

The opinion of the Court was delivered by Currrorp, J.

[la]

Appendia A

Defendant was sentenced to a custodial term on his

criminal convictions. He served part of that term, after

which the sentence was suspended and he was placed on

probation. When defendant violated the terms of his pro-

bation, the trial court sentenced him to a custodial term

exceeding that originally imposed for the underlying of-

fense. On appeal defendant challenged that sentence on

double jeopardy grounds. The Appellate Division affirmed

the sentence, State v. Ryan, 171 N.J.Super. 427 (1979).

We granted certification, 82 N.J. 297 (1980), to review that

determination as well as the Appellate Division’s decisions

denying sentence credit for time spent on probation and

interpreting the impact of N.J.S.A. 2A:168-4 on R, 3:21-

10(b) proceedings.

In January 1974 defendant, Edward Joseph Ryan,

pleaded guitly to charges of larceny and breaking and en-

try with intent to steal. He was sentenced to concurrent

terms of three to five years in New Jersey State Prison.

After serving approximately six months in custody defend-

ant moved for sentence modification under that provision

of R. 3:21-10(b) permitting “entry of the defendant into

a custodial or non-custodial treatment or rehabilitation

program for drug or alcohol abuse * * *.” The original

sentencing court granted the motion effective August 1,

1974, It transferred defendant to Patrick House, a narco-

tic treatment facility of Jersey City Medical Center and

placed him on probation for two years.’

1So much of the transcript on the moticn hearing as has been

furnished to us contains no warning by the court to defendant

(Footnote continued on following page)

Appendia A

In February 1977 Ryan was cited for violating the con-

ditions of his probation. He pleaded guilty to absconding

from probationary supervision and leaving the state with-

out permission. It further developed at a hearing on those

charges that seven detainers had been lodged against de-

fendant; the State of New York was attempting to extra-

dite him; he was serving thirty days on a conviction for

malicious damage and larceny; and he was facing addi-

tional punishment for a contempt of court conviction.

Confronted with this supplemental information the trial

court revoked both the probation and the suspension of

the original three to five year sentence, and sentenced de-

fendant to concurrent terms of five to seven years, the

statutory maximum for the underlying offenses. On ap-

peal to the Appellate Division defendant challenged that

sentence as violating his double jeopardy rights on the

ground that his original sentence was impermissibly in-

creased after having been partially executed. Ryan fur-

ther claimed entitlement to sentence credit for the time he

had spent in the program prior to reincarceration. In ad- .

dition, he contested the trial court’s power to invoke the

provision of N.J.S.A. 2A:1684 allowing imposition of a

(Footnote continued from preceding page)

concerning the consequences of probation violation. Ryan signed

a standard form of the probation department, informing him that

“Ti]f you fail to observe the conditions of your probation you

may be returned to court and required to serve your sentence

in an institution” (emphasis supplied). No mention was made

of the possibility of any increase in the term that had previously

been imposed. Henceforth, in similar circumstances the court should

spell out in unmistakable terms precisely what penalties may await

a defendant who does not adhere to the conditions of his proba-

tion. See also R. 3:21-7.

4a,

Appendia A

custodial term after revocation of probation, claiming that

the statute is inapplicable in the context of R. 3:21-10(b)

sentence modifications.

In rejecting these contention? the Appellate Division re-

lied on the language of N.J.S.A. 2A :168-4 authorizing “the

imposition of any sentence that could have been imposed

for the underlying crime after probation violation has oc-

curred.” 171 N.J.Super. at 434. Hence the court below ap-

proved the sentence of five to seven years after probation

violation, even though the original sentence had aggre-

gated three to five years and had been partially served.

For its conclusion it relied heavily on State v. Cumning-

ham, 142 N.J.Super. 415 (AppDiv. 1976), which in similar

circumstances upheld the imposition of a higher sentence

after violation of probation. 171 N.J.Super. at 432.

In disposing of defendant’s contention that he was en-

titled to sentence credit for time spent on probation, the

Appellate Division stressed the substantive differences be-

tween a probationer’s condition of relative freedom of,

movement and a custodial prisoner’s confinement. It con-

cluded that the statutory scheme and prevailing case law

recognize those differences in declining to equate proba-

tion and prison time. Jd. at 441-43. See State v. Smeen,

147 N.J.Super. 229, 233-34 (App.Div.), certif. den., 74 N.J.

263 (1977). See also Hall v. Bostic, 529 F.2d 990, 991 (4th

Cir. 1975), cert. den., 425 U.S. 594, 48 L.d.2d 199 (1976)

(“There is nothing unusual in the denial * * * of credit for

probation or parole time against a prison sentence, It is

common to both state and federal probation and parole

systems. The validity of such denial has been universally

recognized both in federal and state decisions” (footnote

omitted).) However, in denying sentence credit for proba-

tion time, the court below did so without prejudice to de-

Appendia A

fendant’s right to move in the trial court for credit limited

to the time he had spent at Patrick House, inasmuch as

the record was uninformative as to “the extent to which

defendant’s liberty had been restrained during the two

months or so he had spent there.” 171 N.J.Super. at 442.

Finally, the Appellate Division refused to adopt defend-

ant’s position that the provision of N.J.S.A. 2A:1684,

which empowers the trial court, after revocation of proba-

tion, to “impose any sentence which might ordinarily have

been imposed” does not apply to probationary terms meted

out in connection with R. 3:21-10(b) modifications. The

court held that the application of the statute to such pro-

bation terms was manifestly in keeping with the legisla-

tive mandate, N.J.S.A. 2A:168-1 and N.J.S.A. 2A:164-17,

as well as the case law on the subject. See, ¢.g., State v.

Johnson, 133 N.J.Super. 457 (App.Div. 1975).

On these latter two issues, namely, the disallowance of

sentence credit for time spent on probation, at least under

the circumstances of this case, and the applicability of

N.J.S.A. 2A :168-4 to modification of sentence proceedings

under R. 3:21-10(b), we are in accord with the Appellate

Division’s disposition and generally adopt its reasoning.’

Our opinion in State v. Williams, 81 N.J. 498 (1980), filed

2Our discussion of the applicability of N.J.S.A. 2A:168-4 to

R. 3:21-10(b) proceedings would not be different had this case

arisen under the parallel provision of the New Jersey Code of

Criminal Justice, generally effective September 1, 1979. N.J.S.A.

2C:45-3(b) in its amended form reads as follows:

When the court revokes a suspension or probation, it

may impose on the defendant any sentence that might have

been imposed originally for the offense of which he was

convicted.

Appendia A

after the Appellate Division decision in this case was

handed down, is scant support for defendant’s sentence

credit argument. The underpinning of the credit allowance

for time spent on probation in Williams was the evident

unfairness of denying credit inasmuch as uninterrupted

service of defendant’s sentence was rendered impossible

only through the trial court’s error in granting probation.

81 N.J. at 500. See also State v. Braewnig, 135 N.J.Super.

89, 94 (Law Div. 1975), mod. on other grounds, 140 N.J.

Super. 245 (App.Div. 1976).

However, because we disagree with the Appellate Divi-

sion’s resolution of defendant’s double jeopardy argument,

we reverse the judgment below and reinstate the original

three-to-five year aggregate custodial sentence.*

Prior to the adoption of the Code of Criminal Justice,

resort to the sentencing provision of N.J.S.A. 2A:168-4

was more frequently found in situations in which, on con-

viction of the underlying offense, the court had either sus-

pended the imposition of any sentence or had imposed sen-

tence and immediately suspended the execution thereof

® Even though defendant was paroled prior to the time his ap-

peal was heard in the Appellate Division, the question of appro-

priate sentence following violation of probation is not moot. The

duration of his parole is limited by “the term specified in the

original sentence.” N.J.S.A. 30:4-123.65. Should defendant’s

parole be revoked and he be recommitted, “the term of further

imprisonment upon such recommitment * * * shall not exceed

the original sentence determined from the date of conviction.”

NJ.S.A. 2C:43-9(b).

Appendia A

and had placed the defendant on probation.* When de-

fendant thereafter violated probation, a number of op-

tions were open to the trial court under the statute: it

might continue the probation or revoke both the probation

and the suspension of any sentence previously imposed;

following any such revocation it might require a defend-

ant to serve the sentence originally imposed or it might

impose any sentence that could have been meted out origi-

nally on conviction of the underlying offense.’

The case law recognizing the applicability of N.J.S.A.

2A :168-4 in the stated circumstances is clear. See In

re White, 18 N.J. 499 (1955); State v. Driesse, 95 N.J.

Super. 491 (App.Div.1967); State v. Zachowski, 53 N.J.

Super. 321 (App.Div.1959). Although the statements of

principle justifying the imposition of a custodial sentence

after probation revocation under N.J.S.A. 2A :168-4 have

not been entirely consistent, compare State v. Wall, 127

N.J.Super. 594, 596 (App.Div.1976), and State v. Pallitto,

*Under the Code of Criminal Justice it is no longer necessary

for the sentencing court to impose and suspend the execution

of a sentence before placing a defendant on probation. Rather,

the Legislature now treats probation as a sentence in and of itself,

hence the statutory reference to a court that “sentences [an offender]

to be placed on probation.” N.J.S.A. 2C:45-l1(a). Furthermore,

probation is properly viewed as a conditional sentence in that the

defendant remains subject to a prison term for failure to comply

with the conditions imposed by the court. See .).J.S.A. 2C:45-3

(a) (4) and ABA Standards, Probation §1.1(b) and Commentary

(Approved Draft, 1970).

5¥For a discussion of the philosophy of probation and its role

in our criminal jurisprudence one may profitably consult Justice

Jacobs’ opinion for the court in Adamo v. McCorkle, 13 N.J. 561,

563-67 (1953).

Appendia A

107 N.J.Super. 96, 100 (App.Div.1969), certif. den., 55

N.J. 309 (1970), with State v. Pascal, 133 N.J.L. 528,

532-33 (Sup.Ct.1946), aff'd, 1 N.J. 261 (1949), the sen-

tence imposed after revocation of probation should be

viewed as focusing on the original offense rather than

on the violation of probation as a separate offense. This

is borne out by the statute’s limitation on the sentence

that follows a violation of probation to the sentence al-

ready imposed or one that might originally have been

imposed, thereby anchoring the proceedings to the ori-

ginal offense. The custodial term allowed by the sta-

tute is imposed because of the defendant’s failure to abide

by the conditions of his probation but is not for the

violation of those conditions. A respected text offers

this exposition of the situation in which a defendant’s

entire original sentence was suspended:

In the event the Court finds that the defend-

ant has violated the terms of his probation, the

Court may either continue or revoke the original

probation and the suspension of sentence. In the

event the Court chooses to revoke the original pro-

bation, it may then cause the original suspension

of sentence to be executed or it may impose any

sentence, including the maximum, which might ori-

ginally have been imposed. Imposing the maximum

sentence for the original offense after revocation

of probation without grand jury indictment or trial

by jury is not unconstitutional, since the new sen-

tence is only a sanction for defendant’s original

offense for which he had been properly tried.

[R. Knowlton & D. Coburn, New Jersey Criminal

Practice, §24:11 (footnotes omitted).]

Appendiz A

That the imposition of a custodial term after revoca-

tion of probation does not violate a defendant’s double

jeopardy rights is beyond question in view of the Su-

preme Court’s recent flat statement to that effect in United

States v. DiFrancesco, —— U.S. ——, ——, 66 L.Ed.2d

328, 346 (1980): “[T]here is no double jeopardy pro-

tection against revocation of probation and the imposition

of imprisonment.” But that does not answer the ques-

tion squarely presented here, not addressed by the New

Jersey authorities cited above, and apparently left open

by the Supreme Court in DiFrancesco, supra, namely,

whether double jeopardy considerations militate against

increasing the defendant’s prison sentence after violation

of probation when he has already served a portion of

that custodial term. That feature of the case is central

to Ryan’s position. Simply stated the contention is that

jeopardy attached as soon as defendant commenced serv-

ing his prison term, hence principles of double jeopardy

foreclosed the imposition of any increased term after vio-

lation of probation. We agree.

®In DiFrancesco the Supreme Court, after reviewing the com-

mon law double jeopardy principles, pointed out:

[O]ur Double Jeopardy clause was drafted with the com-

mon law protections in mind. This accounts for the es-

tablished practice in the federal courts that the sentencing

judge may recall the defendant and increase his sentence,

at least (and we venture no comment as to this limitation)

so long as he has not yet begun to serve that sentence.

[United States v. DiFrancesco, supra, —— U.S. at —,

66 L.Ed. 2d at 344 (citations omitted) (emphasis ad-

ded).]

10a

Appendia A

Out of respect for our dissenting colleague’s view that

“application of the reasoning and doctrine in DiFran-

cesco to the factual pattern of the instant case indicates

an absence of a double jeopardy obstacle,” post at

(slip opinion at 4), we first address that contention di-

rectly.

The Supreme Court in Dif rancesco upheld 18 U.S.C.

§3576, which authorizes the prosecutor to appeal the im-

position of sentence on a defendant who qualified as a

“dangerous special offender.” It ruled that such an appeal

does not violate the Double Jeopardy protection against

double punishment. DiF rancesco, US. at , 66 L.

Ed. 2d at 347. That case is distinguishable from the pres-

ent one.

The issue in DiFrancesco was stated in this fashion:

“Tojur task is to determine whether a criminal sentence,

once pronounced, is to be accorded constitutional finality

and conclusiveness similar to that which attached to a

jury’s verdict of acquittal.” Id. at , 66 L.Ed.2d at 343

(emphasis added). The instant case is concerned with

whether a criminal sentence is entitled to finality once the

defendant has begun to serve ut. Our holding is that in the

latter circumstances, jeopardy attaches once the defendant

has commenced serving his prison term.

The distinction between this case and DiF'rancesco is fur-

ther highlighted by the expectation analysis offered in the

latter case. Since the defendant in DiF'rancesco had been

tried as a dangerous special offender under 18 U.S.C. $§

3575 and 3576, the Supreme Court noted that he had no

legitimate expectation of finality in his original sentence.

lla

Appendiz A

The statute gave him notice of the possible appeal. Id. at

, 66 L.Ed.2d at 347. In the case now before us the

defendant had no reason to expect that his original sen-

tence was not final at the time it was imposed and his

imprisonment began. When he subsequently moved for

sentence modification under R, 3:21-10(b), the defendant

was seeking special, more lenient treatment subject to cer-

tain conditions. Thus, the defendant was on notice that a

“breach of those conditions may result in revocation of

the beneficial treatment”, but, given the finality of his ori-

ginal sentence, he would expect “at the very worse [that]

the original sentence may be reinstated.” Id. at » 66

L.Ed.2d at 353 (Brennan, J., dissenting).

It is unmistakably clear that the Supreme Court, in

DiF rancesco, did not intend to overrule the long-standing

principle that one of the purposes of the guarantee against

double jeopardy is to protect a criminal defendant against

the imposition of more than one punishment for a single

offense. Id. at , 66 L.Ed.2d at 346-47. See Whalen v.

United States, 445 U.S. 684, , 63 L.Ed.2d 715, 721

(1980); North Carolina v. Pearce, 395 U.S. 711, 717, 23

L.Ed2d 656, 664-65 (1969). In that connection this Court

has recognized that jeopardy attaches as soon as execu-

tion of the sentence commences. State v. Laird, 25 N.J.

298, 306-07 (1957). We have likewise acknowledged the

principle that once a sentence has gone into operation,

“serious double jeopardy problems” would arise if the trial

judge were permitted to increase that sentence. State v.

Matlack, 49 N.J. 491, 501 (1967); see State v. Vaccaro, 150

N.J.Super. 410, 413 (App.Div. 1977). Those problems are

squarely presented here.

The Appellate Division looked to State v. Cunningham,

supra, for authority in upholding the imposition of the in-

12a

Appendia ‘A

creased sentence in this case. It sought support as well

from North Carolina v. Pearce, supra, for its analogy to

cases where a conviction is reversed on appeal, the origi-

sentence vacated, and a more severe penalty imposed

following retrial. Finally, in affirming the longer prison

term imposed on,Ryan the Appellate Division rejected de-

fendant’s argument that his resentencing should be gov-

erned by the provisions of N.J.S.A. 2A:164-16, covering

split sentences to county institutions. The court found this

case controlled by N.J.S.A. 2A:164-17, requiring all except

life sentences to be for a maximum and minimum term.

171 N.J.Super. at 438. This last point need not detain us

as we are in accord with the Appellate Division’s view of

it.

State v. Cunningham, supra, cannot be distinguished in

any significant respect from the case before us. In Cun-

ningham defendant was convicted of possession of a con-

trolled dangerous substance and sentenced to a prison

term of two to three years. After serving some four

months of the term he sought sentence reconsideration

under R, 3:21-10. In granting the application the trial

court suspended execution of the unserved balance of the

prison sentence and placed defendant on probation for

three years, with a special condition that he enter and

successfully complete a specified drug rehabilitation pro-

gram. Defendant violated his probation by leaving the

program without consent of the staff, whereupon the court

revoked his probation and sentenced him to three to four

years in prison pursuant to N.J.S.A. 2A:168-4. Defend-

ant’s motion for post-conviction relief was denied and the

Appellate Division affirmed, holding that the imposition of

the longer prison sentence did not violate defendant’s dou-

ble jeopardy rights.

18a

Appendia A

Cunningham is based on two propositions, neither of

which is persuasive. First, even though double jeopardy

attaches when execution of a sentence commences, the in-

creased term after violation of probation “is imposed for

violation of probation, caused by defendant’s subsequent

act, and is not a second or additional punishment for the

original crime,” 143 N.J.Super. at 417. We have rejected

this notion, supra at (slip opinion 9-10). Second, Cun

ningham warns that “a contrary ruling * * * would un-

doubtedly have a chilling effect on the sentencing judge’s

willirigness to reconsider a sentence and place a defendant

on probation, with or withvut special conditions.” Id. at

418. We do not share this apprehension.

To be sure, whenever a sentencing judge must decide

whether to permit an inmate to leave the prison walls for

entry into a drug rehabilitation program, the decision poses

a risk. The same risk is inherent in suspending the im-

position of any sentence or in sentencing the offender to

probation pursuant to N.J.S.A. 2C:45-1. But the sen-

tencing discretion can be exercised in the case of a par-

ticular offender who has served a portion of his custodial

term as well as it can in the case of one who has violated

the terms accompanying his suspension or probation. We

acknowledge the absence of perfect symmetry between the

first situation, in which the defendant can be returned to

confinement only for the balance of his previously imposed

sentence, and the second, where the defendant faces the

maximum term that could be imposed for the offense of

which he was convicted. These are appropriate matters

for consideration by the court faced with a motion for

l4a

Appendia A

modification of sentence under R. 3:21-10." If, under the

circumstances of this case and Cunningham, the court’s

exercise of discretion is “chilled” by the prospect that a

probation violator will be exposed to no more than the un-

served balance of his term—a prospect we deem unlikely

—that is simply the price of vindication of a defendant’s

right not to be put in double jeopardy. As our discussion

indicates, we disapprove of State v. Cunningham, supra,

and that case may no longer be considered as acceptable

authority.

Finally, we address the State’s contention, adopted by

the Appellate Division, that when a defendant by his own

motion has his original sentence set aside, the constitu-

tional guarantee against double jeopardy does not restrict

the imposition of whatever sentence may be legally author-

ized, even though it may be greater than the original sen-

tence imposed. On the strength of North Carolina v.

Pearce, supra, the court below attempted to apply to the

instant matter the principle derived from that case that

a more severe sentence upon reconviction is permitted when

justified by defendant’s subsequent conduct, absent any

motive of retaliation for the taking of an appeal. See

Pearce, supra, 395 U.S. at 723-26, 23 L.Ed.2d at 668-70.

Proceeding by way of analogy the Appellate Division con-

cluded that “a sentence imposed after probation has been

violated can reflect the added basis for evaluating defend-

ant’s amenability to reform, namely, his response to pro-

bation.” 171 N.J.Super. at 436.

™For example, one might reasonably expect that the experi-

ence of a defendant who has spent some time behind bars and

had a taste of prison life might provide a greater deterrent to

violation of probation.

lba

Appendia A

There can be no doubt that defendant’s subsequent con-

duct is an appropriate concern at the time of sentencing

after reconviction. But the linchpin of Pearce’s analysis

is the premise that

the original conviction has, at the defendant’s be-

hest, been wholly nullified and the slate wiped clean.

** * [Sjo far as the conviction itself goes, and that

part of the sentence that has not yet been served,

it is no more than a simple statement of fact to say

that the slate has been wiped clean. The conviction

has been set aside, and the unexpired portion of the

original sentence will never be served.

[395 U.S. at 721, 23 L.Ed.2d at 667 (emphasis in

original).]

Here, Ryan has not attacked his original conviction. His

R. 3:21-10(b) motion sought only a modification of sen-

tence, not a new trial. The granting of that motion re-

sulted only in a suspension of the execution of his original

sentence pending successful completion of the drug re-

habilitation program and probationary term, not in a vaca-

tion or annullment of that sentence. In effect the sentence

became temporarily and conditionally inoperative. Under

the circumstances there was no impairment of the jeop-

ardy that attached at the execution of the sentence. The

slate was not “wiped clean” within the meaning of Pearce.

The sentence imposed following defendant’s violation of

probation is vacated and the original sentence aggregating

three to five years is reinstated. The judgment of the Ap-

pellate Division is:

Reversed.

16a

Appendia A

Chief Justice Wilentz and Justices Sullivan, Pashman,

Handler and Pollock join in this opinion.

Justice Schreiber has filed a separate concurring and

dissenting opinion.

17a

Appendia A

Concurring and Dissenting Opinion of Schreiber, J.

SUPREME COURT OF NEW JERSEY

A-15 September Term 1980

- =

— a

STATE OF NEW JERSEY,

Plaintiff-Respondent,

Vv.

EDWARD JOSEPH RYAN,

Defendant-Appellant.

Scurerer, J., concurring in part and dissenting in part.

The Supreme Court opinion in United States v. Di-

Francesco, —— U.S. ——, —— S.Ct. ——, 66 L.Ed.2d

328 (1980), strongly supports the proposition that resen-

tencing a defendant whose probation has been revoked is

not inhibited by the Double Jeopardy Clause which pro-

tects a person from being “subject for the same offence

to be twice prt in jeopardy of life or limb.” DiF rancesco

is not on “all fours” with the present case, but it dealt with

the same legal principles implicated in this case. DiF ran-

cesco involved an increased sentence following an appeal

by the government challenging the original sentence as

18a

Appendia A

too lenient. In this case, the increased sentence followed

revocation of probation. However, in both cases, the in-

creased sentences were authorized by statute. Defendants

in both cases had begun to serve their original prison

terms before the increases were imposed. Consequently,

the double jeopardy analysis followed by the Supreme

Court is entitled to thoughtful consideration in resolving

this federal constitutional question.

Writing for the Court in DiFrancesco, Justice Blackmun

stated that the central objective of the double jeopardy

principle was the prohibition against successive trials, as

evidenced by the common laW roots of the Clause, namely

pleas of autre fois acquit, autre fois convict, and pardon.

The pronouncement of sentence, he declared, has never

carried the finality that attaches to an acquittal. Id. at

—, 8.Ct. at ——, 66 L.Ed.2d at 343. Thus in North Caro-

lina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d. 656

(1969), the defendant, who successfully obtained a new

trial after appeal, could be subjected to a greater sentence

than that which had. beep ‘raposed following the first trial.

. Justice Blackmun then expiained:

The Double Jeopardy Clause does not provide the

defendant with the right to know at any specific

moment in time what the exact limit of his punish-

ment will turn out to be. Congress has established

many types of criminal sanctions under which the

defendant is unaware of the precise extent of his

punishment for significant periods of time, or even

for life, yet these sanctions have not been considered

to be violative of the Clause. Thus, there is no dou-

ble jeopardy protection against revocation of pro-

bation and the imposition of imprisonment. See,

19a

Appendia A.

é.g., Thomas v. United States, 327 F2d 795 (CA10),

cert. denied, 377 US 1000, 12 L Ed 2d 1051, 84 S Ct

1936 (1964). There are other situations where pro-

bation or parole may be revoked and sentence of

imprisonment imposed. [citations omitted] While

these criminal sanctions do not involve the increase

of a final sentence, and while the defendant is aware

at the original sentencing that a term of imprison-

ment later may be imposed, the situation before us

is different in no critical respect. Respondent was

similarly aware that a dangerous special offender

sentence is subject to increase on appeal. His legiti-

mate expectations are not defeated if his sentence

is increased on appeal any more than are the expec-

tations of the defendant who is placed on parole or

probation that is later revoked. [—— U.S. at ——,

— 8.Ct. at ——, 66 L.Ed.2d at 346; emphasis sup-

plied]*

According to Justice Blackmun, the dictum found in

United States v. Benz, 282 U.S. 304, 307, 51 S.Ct. 118 ——,

75 L.Ed. 354, 356-357 (1931), that an increase in sentence

1 Contrary to the majority opinion, the DiFrancesco court did

not specifically leave open the question of whether double jeopardy

militated against increasing the sentence of a defendant whose

probation was revoked when the probation commenced after some

part of the custodial term had been served. See ante at —— (slip

op. at 10-11). The quotation in footnote 6 of the majority opin-

ion, ante at —— (slip op. at 11), refers to a situation in which

the sentencing judge recalls a defendant who is out on bail to

correct an erroneous sentence. See, ¢.g., United States v. Di-

Lorenzo, 429 F.2d 216, 221 (2 Cir. 1970), cert. den. 402 U.S.

950, 91 S.Ct. 1609, 29 L.Ed.2d 120 (1971).

20a.

‘Appendia A

after the defendant had begun service of his sentence vio-

lated the double jeopardy guarantee against multiple pun-

ishment, had been erroneously derived from Ex Parte

Lange, 85 U.S. 163, —— S.Ct. ——, 21 L.Ed. 872 (1874)

the statute involved authorized imprisonment up to one

year or a fine. After the defendant paid the fine, the

trial court resentenced him to a year’s imprisonment.

The Lange Court observed that to impose imprisonment

after payment of the fine was to punish twice for the same

offense. Justice Blackmun noted that no double jeopardy

problem would have existed if the statute had provided

punishment of both fine and imprisonment. He limited

the Benz dictum and the holding in Lange “to Lange’s spe-

cific context.” —— U.S. at ——, —— S.Ct. at —, 66

L.Ed.2d at 347.

Justice Blackmun then concluded:

Although it might be argued that the defendant per-

ceives the ength of his sentence as finally deter-

mined when he begins to serve it, and that the trial

judge shouk. be prohibited from thereafter increas-

ing the sentence, that argument has no force where,

as in the dangerous special offender statute, Con-

gress has specifically provided that the sentence is

subject to appeal. Under such circumstances there

can be no expectation of finality in the original sen-

tence. See S Rep No. 91-617, p 97 (1969); Dunsky,

The Constitutionality of Increasing Sentences on

Appellate Review, 69 J Crim L & Criminology 19,

32 (1978). [Zbid.]

Thus the multiple punishment feature of the Double

Jeopardy Clause only prevents the subjection of a de-

fendant to punishment in excess of that prescribed by

21a

Appendix A

the legislature.2 That this construction accords with the

Supreme Court’s understanding has recently been confirmed

in Albernaz v. United States, —— U.S. ——, —— S.Ct.

—, —— L.Ed.2d —— (1981) [49 U.S.L.W. 4237 (March

9, 1981)], wherein the Court wrote, albeit in dictum, with

respect to the Double Jeopardy Clause:

Thus the question of what punishments are con-

stitutionally permissible is not different from the

question of what punishment the Legislative Branch

intended to be imposed. Where Congress intended

. . . to impose multiple punishment, imposition of

such sentences does not violate the Constitution.

[Id. at ——, —— S.Ct. at ——, —— L.Ed.2d at

— (49 U.S.L.W. at 4240)]

Application of the reasoning and doctrine in DiFran-

cesco to the factual pattern of the instant case indicates

the absence of a double jeopardy obstacle. The trial

court had the authority to suspend “the imposition or

execution of sentence, and also to place the defendant

on probation. .. .” N.J.S.A. 2A:168-1. Upon violation

of the probation terms, the trial court was empowered

to “impose any sentence which might originally have been

imposed.” N.J.S.A. 2A:168-4, The statutory underpin-

nings satisfying double jeopardy are self-evident. The

authorization for imposition of any sentence contemplated

an increased sentence over that originally imposed be-

fore sentence was suspended. Accordingly, a defendant

should not have any expectation of finality in the sen-

2 This is not to say that a defendant can be resentenced once

the sentence has been served. See Ex Parte Lange, 58 U.S. 163,

176, —— S.Ct. ——, ——, 21 L.Ed. 872, 879 (1874).

22a

Appendia A

tence which has been suspended, See United States v.

DiFrancesco, —— U.S. at ——, —— S.Ct. at ——, 66

L.Ed.2d at 347. Thus the defendant could lawfully be

sentenced to any term within the statutory maximum,

less credit for time served.

The defendant was not subject to a second trial. The

suspension of his sentence was at his request. “[T]he

Double Jeopardy Clause, which guards against Govern-

ment oppression, does not relieve a defendant from the

consequences of his voluntary choice.” United States v.

Scott, 437 U.S. 82, 90, 98 S.Ct. 2187, ——, 57 L.Ed.2d 65,

79 (1978). Increase of the sentence after defendant had

commenced serving his sentence did not subject him to

multiple punishment. He was entitled to credit for all

time previously served and his total period of incarcera-

tion would be substantially less than the maximum period

for which he could have been imprisoned.

If defendant had been incarcerated pending trial, con-

victed, given a custodial sentence which was suspended

and placed on probation, it is conceded double jeopardy

would not prevent a court from imposing a greater sen-

tence upon violation of conditions of probation. United

States v. DiFrancesco, —— U.S. at ——, —— S.Ct. at

——, 66 L.Ed.2d at 346; see In re White, 18 N.J. 449

(1955). If defendant had been convicted, sentenced and

incarcerated while his appeal was pending, and later ob-

tained a new trial, double jeopardy would not bar the

court from imposing a greater sentence after a second

conviction. North Carolina v. Pearce, 395 U.S. 711, 89

S.Ct. 2072, 23 L.Ed.2d 656 (1969). If in these circum-

stances the sentencing slate is wiped clean, why is it

not equally so where the defendant has violated his pro-

23a

Appendia A

bation which had been granted at his request after com-

mencement of his incarceration?

I would hold the Double Jeopardy Clause did not bar

defendant’s resentencing.

An additional consideration in this case, however, is the

legitimate expectation of the defendant in view of what

occurred at the time sentence was suspended. The ma-

jority opinion has referred to that expectation by call-

ing attention to the standard form of the Monmouth

County Probation Department which states:

If you fail to observe the conditions of your pro-

bation you may be returned to court and required

to serve your sentence in an institution.

The defendant’s signature was affixed to the form be-

neath a legend that the statement had been read and

explained to him. However, at the hearing on the mo-

tion to suspend the sentence, the trial court made no

reference to the consequences of defendant’s failure to

adhere to the probation terms. Moreover, during the

hearing on violation of probation, defendant argued that

the sentence could not legally exceed the custodial term

originally fixed. Accordingly, it may well have been de-

fendant’s expectation that his custodial sentence would

remain the same because of the statement in the form.

If upon resentencing the trial court had found that was

a reasonable expectation, foreclosing imposition of a

longer sentence would have been warranted as a matter

of fundamental fairness or due process. Cf. State v.

Taylor, 80 N.J. 353, 364 (1979) (validity of plea bargain

depended on “defendant’s reasonable expectations drawn

from the terms of the bargain”). I would remand the

24a

Appendia ‘A

matter to the trial court for a factual determination on

this issue.

I fully agree with and join in the majority opinion with

respect to the disallowance of sentence credit for time

spent on probation and the applicability of N.J.S.A. 2A:

168-4.

25a

APPENDIX B

Opinion of the Superior Court of New Jersey,

Appellate Division

SUPERIOR COURT OF NEW JERSEY,

APPELLATE DIVISION

STATE OF NEW JERSEY,

Plaintiff-Respondent,

Vv.

EDWARD JOSEPH RYAN,

Defendant-A ppellant.

Argued October 29, 1979—Decided December 4, 1979.

Before Judges Biscnorr, Borrer and Dwyer.

Susan Slovak, Assistant Deputy Public Defender, argued

the cause for appellant (Stanley C. Van Ness, Public De-

fender; Diana Johnston, Assistant Deputy Public Defender,

of counsel and on the brief).

Rocky L. Peterson, Deputy Attorney General, argued the

cause for respondent (John J. Degnan, Attorney General;

Edwin H. Stern, Deputy Attorney General, and Rocky L.

26a

Appendiz B

Peterson, Deputy Attorney General, of counsel and on the

brief). ;

The opinion of the court was delivered by

Borrsr, J. A. D. .

This appeal concerns a defendant who served part of a

State Prison sentence before being released on probation

for drug treatment pursuant to R.3:21-10(b). Defendant

thereafter violated probation. The issues are (1) whether

the trial judge could properly sentence or resentence de-

fendant after the probation violation to a greater sentence

than defendant was serving when he was placed on proba-

tion and (2) whether defendant is entitled to credit for

time spent on probation. State v. Cunningham, 143 N.J.

Super. 415 (App. Div. 1976), with which we agree, wpheld

a higher sentence imposed after violation of probation in

similar circumstances. However, State v. Williams, 167

N.J.Super. 203 (App.Div. 1979), certif. granted 81 N.J. 272

(1979), held that a defendant who was released on proba-

tion after serving part of his sentence has a constitutional

right to credit against his remaining prison term for time

spent on probation. We reach a different result as to this

issue in the case at hand.

_ The beginnings of this case are found in the guilty pleas

entered by defendant to two indictments and one accusa-

tion charging him with five counts of breaking and enter-

ing with intent to steal and three counts of larceny. In

addition, defendant pleaded guilty to the disorderly per-

sons offense of stealing charged in a municipal complaint.

As a result, on January 4, 1974 defendant was sentenced

to State Prison for concurrent terms, the longest being

three to five years. A concurrent six-month term in the

27a

Appendix B

Monmouth County Correctional Institution was imposed

for the disorderly persons offense. Defendant was given

credit for nine days spent in custody. In an unreported

opinion we upheld the sentences in an appeal in which de-

fendant urged that they were excessive.

{1, 2] After serving seven months in custody, defend-

ant’s motion under R.3:21-10(b) to suspend his sentences

was granted as of August 1, 1974, and he was placed on

probation and transferred to a drug treatment center where

he resided until some time in September 1974. Thereafter,

in February 1977 defendant was cited for violating proba-

tion. He pleaded guilty to two of the three charges,

namely, abscond from probationary supervision and fail-

ing to report since January 5, 1976, and changing his resi-

dence without permission and leaving the State for more

than 24 hours without permission. Sentence was imposed

pursuant to N.J.S.A. 2A:168-4, Defendant received vari-

ous concurrent sentences for terms of five to seven years

and two to three years, respectively, for the crimes charged

in the indictments and accusation. In addition, he was sen-

tenced to a concurrent term of six months in the Mon-

mouth County Correctional Institute for the disorderly

persons offense.! Defendant was given credit for 219 days

spent in custody.

1 Defendant contends that this sentence should be vacated be-

cause he had served more than six months in custody before he

was released on probation. The State agrees with this conten-

tion, and we concur. The six-month term originally imposed for

the disorderly persons offense was made concurrent with the sen-

tences to State Prison. Thus, having served and been credited

with 219 days in custody when he was transferred to the drug

(Footnote continued on following page)

28a

Appendia B

On this appeal defendant contends that, notwithstanding

his violation of probation, the imposition of a higher sen-

tence than that originally imposed after he had begun to

serve his prison sentences contravenes the double jeopardy

clauses of the United States Constitution and the Constitu-

tion of New Jersey. In addition, defendant contends that

these sentences were excessive and an abuse of the trial

judge’s discretion.

[3] Similar double jeopardy claims were considered and

rejected in State v. Cunningham, 143 N.J.Super. 415 (App.

Div. 1976), and, as indicated above, we concur in its hold-

ing. Suspending a defendant’s prison sentence, whether

before any part of a custodial sentence has been served, as

in In re White, 18 N.J. 449 (1955), or after part has been

served, as in State v. Cunningham, supra, and placing a

defendant on probation, is done pursuant to legislative au-

thority. As part of the legislative scheme, N.J.S.A. 2A:

168-4 permits the imposition of any sentence that could

have been imposed for the underlying crimes after a pro-

bation violation has occurred. The court in In re White,

(Footnote continued from preceding page)

treatment facility, defendant had completed the sentence for the

disorderly persons offense prior to that transfer. No part of that

sentence remained to be suspended when defendant was placed

on probation. Accordingly, we vacate the sentence imposed for

the disorderly persons offense following defendant’s violation of

probation. This has no practical significance since defendant was

given credit for more time spent in custody than the six-month

concurrent sentence.

We note, also, that defendant has been released on parole. This

does not moot the appeal, however, because the length of defend-

ant’s lawful sentence and credit for time served will determine

the duration of parole.

29a

Appendia B

supra, spoke of this sentence as a “new” sentence. 18 N.J.

at 456. Surely, it is a sentence that replaces the original

sentence, so that the original sentence must be viewed as

provisional or tentative in nature when it has been sus-

pended in part or in whole and probation imposed. See

Roberts v. United States, 320 U.S. 264, 274, 64 S.Ct. 113,

118, 88 L.Ed. 41, 47 (1943) (Frankfurter, J., dissenting).

[4, 5] In Roberts, swpra, 320 U.S. at 274-275, 64 S.Ct. at

118-119, 88 L.Ed. at 46-47, Mr. Justice Frankfurter argued

that it should make no difference whether the sentencing

judge fixes a prison term which is suspended or fixes no

term at all and merely suspends all sentencing before plac-

ing a defendant on probation. The third variant is the

case at hand, where a prison term has been imposed and

was partially served before the court, at defendant’s re-

quest, suspended the balance of the term. In all three situ-

ations the legislative scheme attaches the same conse-

quences to a violation: a new sentence can be imposed for

the underlying crimes to the limits allowed by law. The

probation violation permits a judge to revoke probation

and compel execution of the orginial sentence; it also al-

lows the judge to vacate the original sentence and impose

any sentence that could have been imposed at the outset.

In re White, supra, 18 N.J. at 454. When, as here, a de-

fendant moves to suspend the prison term which he is serv-

ing and for release on probation, he must be taken to ac-

cept the probation laws that he invokes.

[6-12] We recognize the general rule that double jeop-

ardy attaches when a defendant begins serving his sen-

tence, so that he cannot be subjected to multiple punish-

ments for the same offense. Ex parte Lange, 85 U.S. (18

Wall.) 163, 174, 21 L.Ed. 872, 878 (1874); North Carolina

v. Pearce, 395 U.S. 711, 730-732, 89 S.Ct. 2072, 2091-2092,

30a

Appendix B

23 L.Ed.2d 656, 672-674 (1969). Normally, a sentence which

has begun cannot be set aside and a higher sentence im-

posed. Id.; State v. Matlack, 49 N.J. 491, 501-502 (1967),

cert. den. 389 U.S. 1009, 88 S.Ct. 572, 19 L.Ed.2d 606

(1967). However, where on appeal defendant’s conviction

is reversed and his sentence vacated, defendant can be

given a more severe sentence upon reconviction than ori-

ginally imposed, so long as his subsequent conduct justifies

the higher sentence and retaliation for taking an appeal

has not motivated the new sentence. North Carolina v.

Pearce, supra, 395 U.S. at 723-726, 89 S.Ct. at 2079-2081,

23 L.Ed.2d at 668-670. By analogy, a sentence imposed

after probation has been violated can reflect the added

basis for evaluating defendant’s amenability to reform,

namely, his response to probation. Roberts v. United States,

supra, 320 U.S. at 276, 64 S.Ct. at 119, 88 L.Ed. at 48

(Frankfurter, J., dissenting). That experience may reveal

that the sentences oriyinally imposed were too lenient. On

the other hand, defendant has it within his power to avoid

resentencing and reincarceration by complying with the

conditions of probation. We see no reason to condemn this

flexibility in sentencing when defendant is given the advan-

tages of probation. It does not permit an arbitrary in-

crease in a sentence unrelated to a defendant’s subsequent

conduct. See Roberts v. United States, supra, where three

justices, dissenting on a different issue (the interpretation

of the federal Probation Act), opined that there was no

constitutional bar to increasing a suspended sentence after

probation has been violated; but the majority of the court

did not reach this issue. Double jeopardy concepts should

not condemn the imposition of a new sentence in place of

the suspended sentence as part of a state’s sentencing plan

when a defendant violates conditions of probation imposed

on his release from prison. Of course, defendant must be

3la

Appendia B

given credit for time served against the new sentence.

North Carolina v. Pearce, supra, 395 U.S. at 718, 89 S.Ct.

at 2077, 23 L.Ed.2d at 665.

Apart from the constitutional issue, defendant contends

that R.3:21-10(b) was not intended to authorize an in-

crease in sentence under any circumstances. Defendant

cites State v. Matlack, 49 N.J. 491 (1967), cert. den, 389

US. 1009, 88 S.Ct. 572, 19 L.Ed.2d 606 (1967), in sup-

port, as well as a general comment to this effect in the

Report of the New Jersey Supreme Court’s Committee

on Criminal Practice, 98 N.J.L.J. 321, 343 (1975). How-

ever, these references are not pertinent. The Committee

on Criminal Practice cited Matlack for the proposition that

R. 3:21-10 was not intended to authorize an increase in

sentence as part of a sentence modification “unless the

original sentence is the result of a mistake of a clerical

nature.” 98 N.J.L.J. at 343. The Matlack court did not

address itself to a suspension of sentence and imposition

of probation; it was not concerned with sentencing under

N.J.S.A. 2A:168-4 for a violation of probation. In Mat-

lack the trial judge had imposed a sentence of 2 to 3

years for robbery and 10 to 15 years for atrocious as-

sault and battery, clearly in excess of the authorized seven

year maximum. ‘The trial judge indicated that the sen-

tence for robbery was “mistakenly made under the

Atrocious Assault and Battery indictment and the sentence

should be corrected.” 49 N.J. at 494. The Supreme Court

held that a sentence imposed cannot be increased except

where a clerical error does not reflect the true sentence

intended by the trial judge. If the trial judge in Mat-

lack intended the longer sentence for the atrocious as-

sault and battery, erroneously thinking it was a more

serious offense than robbery, he could not increase the

32a

Appendia B

robbery sentence merely because the other illegal sen-

tence had to be reduced. 49 N.J. at 502. Obviously, a

probation violation was not involved.

Defendant also contends that N.J.S.A. 2A:168-1 and

N.J.S.A. 2A:168-4 do not apply when service of a State

Prison sentence is interrupted by a resentencing under

R.3:21-10(b). Defendant suggests that suspension of a

sentence and imposition of probation may be made under

the inherent power of the court independent of N.J.S.A.

2A :168-1 et seq. We disagree, N.J.S.A. 2A:164-17 deals

with sentences to State Prison. It provides: “Nothing

contained in this section shall be construed to repeal or

affect the power of the courts to suspend the imposition

or execution of sentence and place the offender on pro-

bation.” N.JiS.A. 2A:168-1, which preceded the enact-

ment of N.J.S.A. 2A:164-17, authorizes a court “to sus-

pend the imposition or execution of sentence, and also to

place the defendant on probation .. .” The court in Adamo

v. McCorkle, 13 N.J. 561, 566 (1953), cert. den., 347 U.S.

928, 74 S.Ct. 531, 98 L.Ed. 1080 (1954), reviewed the his-

tory of probation in New Jersey and concluded that “the

abundant coverage” of the Probation Act, now found in

N.J.S.A. 2A:168-1 et seqg., made it unnecessary and not

useful to refer to cases which preceded the adoption of

that act.

[13] We see no reason to resort to our inherent power

to suspend sentences when N.J.S.A, 2A:168-1 is broad

enough to allow the suspension of a partially executed

sentence so that a defendant can be placed on probation.

It follows, therefore, as we held in State v. Cunningham,

supra, that N.J.S.A. 2A:168-4 applies to a violation of

probation imposed with the suspension of a sentence pur-

suant to R.3:21-10(b).

33a

Appendia B

[14] Nor do we find persuasive defendant’s reference to

N.J.S.A. 2A:164-16 and the holding of State v. McCue,

148 N.J.Super. 425 (App.Div.1977). State v. McCue in-

volved a split sentence to a county institution, with pro-

bation imposed pursuant to N.J.S.A. 2A:164-16, By a

split sentence we mean one in which a designated por-

tion is ordered served in jail and the balance suspended,

with defendant placed on probation. N.J.S.A. 2A :164-16

authorizes such a sentence, but it applies only to sen-

tences to a county jail, penitentiary or workhouse. It

also limits resentencing for a probation violation to “the

remaining portion of the sentence originally pronounced,”

in contrast to the imposition of a new sentence as au-

thorized by N.J.S.A. 2A:168-4. N.JS.A. 2A:164-16 con-

trasts with N.J.S.A. 2A :164-17, which governs State Prison

sentences. State v. McCue, supra, recognizes that N.J.S.A.

2A:164-17 does not authorize split sentences to State

Prison. While release under R.3:21-10(b) transforms a

State Prison sentence into something resembling a split

sentence, it affords no basis for limiting the sentence that

can be imposed for a probation violation by analogy to

the legislative prescription in N.J.S.A. 2A :164-16.

[15] Thus, as in State v. Cunningham, we conclude that

a court has the full authority granted by N.J.S.A. 2A :168-

4 in sentencing a probation violator who was released

from State Prison pursuant to R.3:21-10(b). In such a

case, neither double jeopardy principles nor statutory limi-

tations prevent a judge from sentencing a probation vio-

lator to any sentence that could have been imposed for the

original underlying offense or offenses.

[16] Defendant also contends that the trial judge erred

in not allowing him credit against the new sentences for

time served while on probation, in addition to time served

34a

Appendix B

in jail, in keeping with the holding of State v. Williams,

supra” In Williams the court reasoned that probation is

“a form of punishment.” 167 N.J.Super. at 207. In re

Buehrer, 50 N.J. 501, 509 (1967), was quoted to show that

probation has “sting” and that restrictions on the pro-

bationer are “punitive in quality.” Thus, our colleagues

in Williams concluded that in the circumstances of that

case, compelling a defendant to serve his full sentence with-

out credit for time spent on probation constitutes “multi-

ple punishments for the same offense,” interdicted by the

double jeopardy clause of the Fifth Amendment. 167

N.J.Super. at 208. North Carolina v. Pearce, supra, was

cited in support of that holding.

There is a factual distinction between Williams and the

case at hand which may or may not be significant. In

Williams, defendant was ordered released from prison

pursuant to R.3:21-10 and placed on probation with drug-

treatment conditions. The State appealed this order with-

out seeking a stay, and, while defendant was on proba-

tion it was reversed as an abuse of the trial judge’s dis-

cretion. Defendant was remanded to serve his prison

term. The court held that “refusing defendant credit for

the probationary period served . . . would be to imper-

missibly increase his sentence previously imposed ... .”

167 N.J.Super. at 208.

2 Even if defendant were entitled co credit for time served on

probation, it would not include the time during which he ab-

sconded “while under supervision” and failed to report, since

“the time during which [a probationer] remains away or hidden

shall not be counted as part of his term of probation.” N.J.S.A.

2A :168-1. Moreover, we would also have to contend with the

fact that defendant violated probation in other respects, though

not formally charged with such violation.

35a

Appendix B

The court in Williams may have thought it unfair that

defendant’s full sentence was to be extended by the sev-

eral years he spent on probation without wrongdoing on

his part, and without violating probation. In those cir-

cumstances it treated probation as a form of punishment

for which credit was allowed against defendant’s maxi-

mum sentence.

[17] We question whether North Carolina v. Pearce,

supra, compels the result reached in Williams. North Caro-

lina v. Pearce did not involve credit for time spent on pro-

bation before or during a custodial term. Pearce involved

a sentence imposed after the retrial of a defendant who

had served part of his jail sentence under a conviction that

was reversed on appeal. As noted above, Pearce held that

on resentencing a defendant must be given full credit for

time served under his original sentence, but that an in-

crease in sentence may be imposed. Probation was not

involved.

N.J.S.A, 2A :168-2 provides that conditions of probation

may include reporting to a probation officer, restricting a

change in residence, avoiding undesirable associations, and

such other requirements as the court determines. In the

case at hand defendant’s release from prison was condi-

tioned on his participation as a resident in a drug treat-

ment center until “properly discharged by the authorities

thereof and with the approval of the Monmouth County

Probation Department... .” The primary goal must have

been rehabilitation since defendant was released from pris-

on. Probation has been termed “a period of grace in order

to aid the rehabilitation of a penitent offender; to take

advantage of an opportunity for reformation which actual

service of the suspended sentence might make less prob-

able.” Burns v. United States, 287 U.S. 216, 220, 53 S.Ct.

36a

Appendiz B

154, 155, 77 L.Ed. 266, 268 (1932); Adamo v. McCorkle,

supra, 13 N.J. at 563. The court in In re Buehrer, supra,

while speaking of probation as “involving punishment,”

also said: “Probation assumes the offender can be rehabil-

itated without serving the suspended jail sentence.” 50

N.J. at 509. Nevertheless, however mild the restrictions

on a probationer’s liberty, probation may be viewed in

some cases as essentially punitive in nature. Whatever

the object, probation may be given one effect in one case

and another effect in others. For example, in United

States v. Rosenstreich, 204 F.2d 321 (2 Cir. 1953), pro-

bation was viewed as punitive for the purpose of deter-

mining when defendant commenced serving his sentence.

[18] We hesitate to allow the labels applied to the goals

of probation—punishment, deterrence, rehabilitation—to

determine the result in this case. It is preferable to look

at the burdens of probation to determine the issue involved.

Despite some restrictions on a probationer’s movements,

the probationer’s condition, like a parolee’s, is “very dif-

ferent from that of confinement in a prison.” Morrissey

v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 2601, 33 L.Ed.

2d 484, 495 (1972). In our view, “street time” spent by a

defendant on probation cannot be equated with prison

time. The probationer is free to move about, with some

restrictions; he is encouraged to become and remain em-

ployed, N.J.S.A. 2A:168-2; and his reporting duties and

other obligations are normally not so burdensome as to

compare with incarceration. (A different view may be

taken of time spent in a custodial setting, such as in a resi-

dential treatment institution, but we will deal with that

later.) Clearly, the Legislature has not equated probation

and prison time. In authorizing a custodial sentence after

probation has been violated, the Legislature contemplated

37a

Appendix B

that a maximum custodial sentence could be imposed.

N.J.S.A. 2A :164-4, The statutory scheme does not man-

date credit for time spent on probation. Jd.; see also

N.J.S.A. 2A:164-16, discussed above; cf. R.3:21-8; State

v. Smeen, 147 N.J.Super, 229 (App.Div.), certif. den. 74

N.J. 263 (1977).

[19] We conclude that defendant cannot demand credit

for probation time as a matter of right. This is the pre-

vailing view. Hall v. Bostic, 529 F.2d 990, 991 (4 Cir.

1975), cert. den, 425 U.S. 954, 96 S.Ct. 1733, 48 L.Ed.2d

199 (1976); Thomas v. United States, 327 F.2d 795 (10

Cir. 1964), cert. den. 377 U.S. 1000, 84 S.Ct, 1936, 12 L.Ed.

2d 1051 (1964); United States v. Guezi, 275 F.2d 725 (3

Cir. 1960) ; Kaplan v. Hecht, 24 F.2d 664, 665 (2 Cir. 1928) ;

Gehl v. People, 161 Colo. 535, 537, 423 P.2d 332, 334 (Sup.

Ct.1967) ; State v. Lowdermilk, 245 Ind. 93, 98, 195 N.B.2d

476, 479 (Sup.Ct.1964); State v. Young, 273 Minn. 240,

245-249, 141 N.W.2d 15, 19-20 (Sup.Ct.1966) ; Van Dorn v.

Warden, Nevada State Prison, Nev., 569 P.2d 938 (Sup.

Ct.1977) ; see State v. Phillips, 443 8.W.2d 139 (Mo.Sup.

Ct.1969). In some cases where credit for probation time

has been allowed the result was dictated by statute. Peo-

ple v. Stewart, 61 Ill.App.3d 111, 114, 18 Ill.Dee. 476, 479,

377 N.E.2d 1112, 1115 (Ct.App. 1978); State v. Murray,

81 N.M. 445, 447, 468 P.2d 416, 419 (Ct.App.1970).

We had referred to defendant’s residential status in a

drug treatment center, Patrick House, in Jersey City. De-

fendant did not expressly contend that the time spent there

should be considered separately in determining whether

probation should be equated with prison time for credit

purposes. On the record before us, however, we are un-

able to determine the extent to which defendant’s liberty

had been restrained during the two months or so that he

38a

Appendix B

spent there. The record indicates that he was on a metha-

done program, but tells us nothing more. Accordingly, in

denying credit for probation time we do so without preju-

dice to defendant’s right to move in the trial court for

credit limited to the time he spent at Patrick House. See

State v. Smeen, supra. We doubt that a sufficient showing

can be made to annul on constitutional grounds a statutory

scheme which does not allow for such credit, Out of cau-

tion, however, we prefer to leave the issue open until a

record is made and the contention is specifically advanced

in this or any other case.

Lastly, we consider defendant’s contention that after his

conviction for violating probation, the sentence imposed

was excessive and an abuse of discretion.

[20] As background we note that defendant, born in

July 1950, has a history as a juvenile and adult offender,

with two previous indeterminate sentences to the Youth

Correctional Institution Complex. His criminal conduct

continued while on parole from that institution. He as-

serted that the property crimes in this case were com-

mitted to support his addiction to heroin.

We are primarily interested in his behavior after he

was released from prison on August 1, 1974 and placed on

probation. First defendant spent two months or less in

Patrick House. (He claimed at the probation violation

hearing that he successfully ended his use of methadone

as well as heroin.) In June 1975 he was charged with

growing marijuana in a field in Highlands, New Jersey.’

®The court below disregarded this charge, as we do, because

defendant’s conviction was ultimately reversed by us for inade-

quate proof of the test made of the vegetation defendant and a

friend were seen tending.

39a

Appendiz B

That same month he was arrested in Seaside Heights for

possession of stolen property and larceny. Defendant

continued to report to the probation department until

January 5, 1976, when he made his last visit and advised

that his conviction for the disorderly persons marijuana

offense was being appealed.

In February 1977 defendant was committed for 30 days

for malicious damage and larceny. By then there were

five or six detainers lodged against him by New Jersey

and New York authorities, These included charges on

two counts of burglary, one of possession of stolen prop-

erty and one of jewelry theft in May 1976 in New York,

a disorderly persons offense of contributing to the de-

linquency of a minor in May 1976, two contempt of court

offenses, one of which was for failing to pay a fine, and

larceny of a motor vehicle in October 1976 in Ocean County.

The New York authorities had initiated extradition pro-

ceedings against defendant. It appears that defendant had

entered guilty pleas to the malicious damage charge and

one of the contempt of court charges.

Defendant had served only seven months in jail for the

underlying serious crimes before he was released on pro-

bation. Considerable leniency was accorded him; but he

was unfaithful to the obligations of probation. We cannot

say that the trial judge abused his discretion in the sen-

tences imposed. See State v. Whitaker, 79 N.J. 508, 512-

517 (1979) ; State v. Knight, 72 N.J. 193 (1976).

Affirmed.

40a

APPENDIX C

Order of the Supreme Court of New Jersey Granting

Stay of the Judgment

SUPREME COURT OF NEW JERSEY

M-1043 September Term 1980

(Filed—May 20, 1981)

STATE OF NEW JERSEY,

Plaintiff-Movant,

Vv.

EDWARD JOSEPH RYAN,

Defendant-Respondent.

This matter having been duly presented to the Court,

it is onperep that the motion for stay of the judgment of

this Court is granted pending disposition of a timely peti-

tion to the United States Supreme Court for a writ of

certiorari.

Wrirness, the Honorable Robert N. Wilentz, Chief Jus-

tice, at Trenton, this 18th day of May, 1981.

SrerHen W. TowNsenp

Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.