Opinion
DOCKET NO. A-0493-11T4
03-31-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. L.J.A., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the supplemental brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the supplemental brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Ashrafi. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 09-05-0986 and 09-04-0634. Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the supplemental brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the supplemental brief). PER CURIAM
Defendant was tried before a jury and found guilty of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count two); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count three). The trial court merged count two with count one, and sentenced defendant on count one to an extended term of fifty years of incarceration. The court ordered that the extended term be served in its entirety, pursuant to N.J.S.A. 2C:43-6.4(e), as amended by L. 2003, c. 267, § 2. The court also imposed a concurrent ten-year term on count three.
Defendant appealed and, in an unpublished opinion, we affirmed defendant's convictions and sentences. State v. L.J.A., No. A-0493-11 (App. Div. Dec. 27, 2013). Thereafter, defendant filed a petition for certification with the Supreme Court. On February 3, 2015, the Court granted certification limited to the issue of the imposition of the extended-term sentence, summarily reversed our judgment on that issue, and remanded the matter to this court for reconsideration in light of State v. Perez, 220 N.J. 423 (2015). State v. L.J.A., 220 N.J. 565 (2015).
In response to our request, the parties filed supplemental briefs addressing the application of Perez to the extended-term sentence imposed in this matter. Having considered the parties' submissions, we conclude that Perez requires reconsideration of that part of our decision affirming the extended-term sentence without the possibility of parole, and that the matter must be remanded for resentencing on count one.
In Perez, the defendant was convicted in 1998 of aggravated sexual assault and armed burglary. Id. at 436. He was sentenced to an aggregate term of sixteen years of incarceration, with an eight-year period of parole ineligibility, along with a special sentence of community supervision for life ("CSL"), as provided by the terms of N.J.S.A. 2C:43-6.4 then in effect. Id. at 436-37.
In 2003, amendments to N.J.S.A. 2C:43-6.4 were enacted, which replaced all references to CSL in the statute with "parole supervision for life" ("PSL"). Id. at 437 (citing L. 2003, c. 267, § 2 (eff. Jan. 14, 2004)). The current version of N.J.S.A. 2C:43-6.4(e) states that a person who commits one of certain enumerated sexual offenses while on PSL shall be sentenced to an extended term of imprisonment which "shall . . . be served in its entirety prior to the person's resumption of the term of [PSL]." The pre-amendment version of the statute provided that a defendant on CSL who committed one of the enumerated offenses was subject to a mandatory extended term, but could be eligible for parole. Perez, supra, 220 N.J. at 438.
In 2011, the defendant in Perez pled guilty to second-degree child luring, contrary to N.J.S.A. 2C:13-6, and third-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a), offenses the defendant committed in 2010. Id. at 428. The trial court sentenced the defendant pursuant to the then-current provisions of N.J.S.A. 2C:43-6.4(e) to mandatory extended terms with no parole eligibility. Id. at 439-40.
In Perez, the Supreme Court held that the amendments to N.J.S.A. 2C:43-6 enacted in 2003 and thereafter "cannot be considered a simple clarification of the Legislature's intent about the nature of the special condition of post-sentence supervision of certain sexual offenders." Id. at 443. The Court stated that the 2003 amendments to N.J.S.A. 2C:43-6 confirmed the penal nature of the special conditions of CSL and PSL, and enhanced the penal exposure of a person previously sentenced to CSL for certain offenses committed while sentenced to CSL status. Ibid.
The Court added that the elimination in 2003 of any prospect for parole enhanced the penal consequences for any person placed on CSL status prior to January 14, 2004, the effective date of the statutory amendments. Id. at 442. The Court wrote that, applying the current version of N.J.S.A. 2C:43-6.4(e) to the defendant would require that he spend "many additional years in prison[.]" Ibid. The 2003 amendments to N.J.S.A. 2C:43-6.4(e) enhanced the punitive consequences of the defendant's special sentence of CSL and violate the prohibitions against ex post facto legislation in the federal and state constitutions. Ibid. The Court vacated the defendant's sentences and remanded the matter to the trial court for resentencing "in accordance with the law governing those sentenced to CSL." Ibid.
Here, defendant and the State agree that the extended-term sentence imposed on count one must be vacated and, as in Perez, the matter remanded to the trial court for resentencing in accordance with the law applicable to those sentenced to CSL status. Defendant acknowledges that he is subject to a mandatory extended-term sentence, as provided by the pre-amendment N.J.S.A. 2C:43-6(e)(1). Defendant further acknowledges that, while he cannot be required to serve the entire sentence without the possibility of parole, he is subject to a parole ineligibility term, as prescribed by the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. The State agrees, noting that defendant could again be sentenced to a fifty-year extended term, with a NERA parole-ineligibility period.
Accordingly, our prior decision is reconsidered in part. The sentence imposed on count one is vacated and the matter remanded to the trial court for resentencing on that count in accordance with the statutes governing persons sentenced to CSL status.
Remanded for resentencing in conformity with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION