Opinion
DOCKET NO. A-4761-11T2
06-02-2014
STATE OF NEW JERSEY IN THE INTEREST OF G.R., A Juvenile.
Joseph E. Krakora, Public Defender, attorney for appellant G.R. (Frank M. Gennaro, Designated Counsel, on the brief). Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent State of New Jersey (Nancy A. Hulett, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Leone.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FJ-12-1677-12.
Joseph E. Krakora, Public Defender, attorney for appellant G.R. (Frank M. Gennaro, Designated Counsel, on the brief).
Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent State of New Jersey (Nancy A. Hulett, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant G.R., a juvenile, was adjudicated delinquent. The court sentenced him to both probation and detention as a condition of probation. He appeals, arguing that such a "split" sentence is illegal for juveniles. Because he has served his sentence, we dismiss the appeal as moot.
I.
We relate only those facts necessary for our disposition. The seventeen-year-old defendant was the subject of several juvenile complaints. He pled guilty to acts of delinquency, including a drug offense, and received a one-year deferred disposition. While on deferred disposition, he was charged with more acts of delinquency, including another drug offense.
On April 30, 2012, defendant appeared in court to plead guilty to the most recent drug offense, and to be resentenced on the offenses for which he had received deferred dispositions. He tested positive that day for drug use. The juvenile court, disturbed by defendant's continued drug use, not only sentenced him to probation for a year, but also required as a condition of probation that he "serve between 30 and 60 days of detention." Specifically, the court stated that if defendant had any positive drug tests between May 1 and his post-graduation surrender date of June 25, then he would serve a sixty-day detention. If his drug tests were negative during that period, he would serve only thirty days. The court also resentenced defendant to concurrent one-year terms of probation on the remaining charges, imposed penalties and assessments, and suspended his driver's license for six months.
The parties have not informed us whether defendant served thirty or sixty days in detention.
Defendant appealed, challenging only his sentence. Before his appeal was argued on the sentencing calendar, he served the custodial part of his sentence. At the argument before a different panel of this court, defense counsel stated:
The bad news is he's already served the sentence. As far as I can tell . . . the driver's license revocation is up. The sentence is served, and we haven't been able to contact him. . . . I guess my argument is more or less academic that the split sentence in juvenile court isn't permitted.Defense counsel could identify no benefit to defendant if judgment of adjudication were revised to eliminate the detention portion. That panel ordered the case to be placed on the regular calendar, bringing it before this panel.
I.
We must hew to the limits on adjudicating moot issues. "Mootness is a threshold justiciability determination rooted in the notion that judicial power is to be exercised only when a party is immediately threatened with harm." Betancourt v. Trinitas Hosp., 415 N.J. Super. 301, 311 (App. Div. 2010). "'It is firmly established that controversies which have become moot or academic prior to judicial resolution ordinarily will be dismissed.'" N.J. Div. of Youth & Family Servs. v. W.F., 434 N.J. Super. 288, 297 (App. Div. 2014) (quoting Cinque v. N.J. Dept. of Corr., 261 N.J. Super. 242, 243 (App. Div. 1993)). Similarly, "'for reasons of judicial economy and restraint, courts will not decide cases in which . . . a judgment cannot grant effective relief.'" Cinque, supra, 261 N.J. Super. at 243.
Here, defendant concedes that he has served his sentence of detention, and that his driver's license is no longer suspended. Indeed, the passage of time suggests that defendant has also served his one-year probationary sentence, and has been released from all custody and supervision. Defendant does not claim otherwise.
Defendant does not challenge the validity of his adjudication of guilt, which "'does not become moot simply because . . . the sentence has been served and completed.'" State v. Gartland, 149 N.J. 456, 464 (1997) (quoting Bower v. State, 135 N.J.L. 564, 568 (Sup. Ct. 1947)); see State v. Parmigiani, 65 N.J. 154, 155 (1974). Instead, he raises only one argument:
Defendant also does not claim that his fines and assessments based on that adjudication are at issue in this appeal or prevent it from being moot.
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THE IMPOSITION OF A "SPLIT" SENTENCE OF PROBATION CONDITIONED ON THE SERVICE OF A PERIOD OF TIME IN CUSTODY CONSTITUTED AN ILLEGAL SENTENCE.As defendant admitted, that argument has become "academic" because he has served his custodial sentence.
Because defendant has apparently served his detention sentence, and apparently his entire sentence, "there is patently no remedy which can now be afforded him." State v. Hughes, 230 N.J. Super. 223, 226 (App. Div. 1989). Notably, defendant's brief does not request any relief from his judgment. He simply asks that we rule on the legality of split sentences in juvenile cases. However, "it is well settled that we will not render advisory opinions or function in the abstract." Indep. Realty Co. v. Twp. of N. Bergen, 376 N.J. Super. 295, 301 (App. Div. 2005); see Gartland, supra, 149 N.J. at 464.
In federal court, "a defendant wishing to continue his appeals after the expiration of his sentence must suffer some 'continuing injury' or 'collateral consequence' sufficient to satisfy Article III" of the United States Constitution. United States v. Juvenile Male, ____ U.S., ___, 131 S. Ct. 2860, 2864, 180 L. Ed. 2d 811, 815 (2011). "When the defendant challenges his underlying conviction, [federal] cases have long presumed the existence of collateral consequences." Ibid. "But when a defendant challenges only an expired sentence, no such presumption applies, and the defendant must bear the burden of identifying some ongoing 'collateral consequenc[e]' that is 'traceable' to the challenged portion of the sentence and 'likely to be redressed by a favorable judicial decision.'" Ibid.
Unlike Article III, "the New Jersey Constitution does not confine the exercise of the judicial power to actual cases and controversies." Gartland, supra, 149 N.J. at 464. Regardless, a showing of collateral consequences may be sufficient to avoid mootness. See State v. Levine, 253 N.J. Super. 149, 156 n.2 (App. Div. 1992). However, defendant here fails to identify any collateral consequence from his split sentence, and thus does not avoid mootness. See In re Geraghty, 68 N.J. 2 09, 212 (1975); Cinque, supra, 261 N.J. Super. at 244.
Importantly, defendant was released on probation, not on parole. Release on parole does not moot a challenge to the imposed prison term because the duration of parole, and the duration of any time served after revocation of parole, "is limited by 'the term specified in the original sentence.'" State v. Ryan, 86 N.J. 1, 6 n.3 (1981) (quoting N.J.S.A. 30:4-123.65); see also Glover v. N.J. State Parole Bd., 271 N.J. Super. 420, 422-23 (App. Div. 1994); Levine, supra, 253 N.J. Super. at 156 n.2. By contrast, the length of a probation term is fixed by the court at the time of sentencing, as here. The probation term's duration and the duration of any time served after revocation of probation is limited by the statutory maximum rather than the imposed custodial sentence. N.J.S.A. 2C:45-2(a), -3(b).
In any event, defendant appears to have completed his one-year term of probation. Given that the only effect of his brief detention was to defer the commencement of his probation, and that defendant has been released and has not shown any other adverse consequences, "his release from custody has mooted his appeal." See Granata v. N.J. State Parole Bd., 237 N.J. Super. 630, 633 (App. Div. 1990); see also State v. Maryland, 327 N.J. Super. 436, 455 (App. Div. 2000), rev'd on other grounds, 167 N.J. 471 (2001).
Thus, "the matter had become moot because [defendant's] sentence had been completed." State ex rel. C.V., 201 N.J. 281, 286 (2010). Nonetheless, both defendant and the State argue that we should decide the merits because "the question raised is one of public importance and likely to recur." Ibid. Appellate courts "occasionally will decide [technically moot] matters where the issue is of substantial importance, likely to reoccur, but capable of evading review." Bd. of Educ. of Sea Isle City v. Kennedy, 196 N.J. 1, 18 (2008). We recognize our discretion to entertain such appeals, but decline to exercise that discretion here. Finkel v. Twp. Comm. of Hopewell, 434 N.J. Super. 303, 315 (App. Div. 2013); State v. Hughes, 230 N.J. Super. 223, 227 (App. Div. 1989).
We do not doubt the importance of the issue of whether split sentences are permissible in juvenile cases. See C.V., supra, 201 N.J. at 286 (stressing the importance of flexibility in juvenile sentencing). However, that issue has already been addressed by this court. In State ex rel. T.S., 413 N.J. Super. 540, 541 (App. Div. 2010), this court held that "[t]he Juvenile Justice Code does not authorize the Family Part to condition a term of probation upon the completion of a period of detention." Given the holding in T.S., it is not clear that the issue of split juvenile sentences is likely to recur frequently. See Crespo v. Crespo, 408 N.J. Super. 25, 37 (App. Div. 2009) (holding trial courts are bound by Appellate Division decisions), aff'd o.b., 201 N.J. 207 (2010); see generally Geraghty, supra, 68 N.J. at 212-13 (dismissing the appeal as moot where the issue is now addressed by the rules). Further, any such split sentences need not evade review if, as in T.S., supra, 413 N.J. Super. at 541, the execution of the custodial part of the disposition was stayed pending appeal. See O'Shea v. Bd. of Educ., 127 N.J. 244, 245 (1992) (declining to review an issue of general public importance that will not escape judicial review); Janicky v. Point Bay Fuel, Inc., 410 N.J. Super. 203, 208 (App. Div. 2009).
The State, which did not seek certification to the Supreme Court in T.S., urges us to reject that ruling, arguing that the Code of Juvenile Justice authorizes split sentences. We express no view as to the correctness of the decision in T.S. We recognize that "the decisions of one panel of the Appellate Division are not binding upon the remaining panels." David v. Gov't Emps. Ins. Co., 360 N.J. Super. 127, 142 (App. Div.), certif. denied, 178 N.J. 251 (2003); see Brundage v. Estate of Carambio, 195 N.J. 575, 592-93 (2008). We nonetheless decline in our discretion to address the correctness of T.S. in a moot case.
Appeal dismissed as moot.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION