STATE OF NEW JERSEY v. ROBERT J. KOSCH, JR.

 

(NOTE: The status of this decision is Published.)

                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION


                              SUPERIOR COURT OF NEW JERSEY
                              APPELLATE DIVISION
                              DOCKET NO. A-2982-16T3

STATE OF NEW JERSEY,
                                    APPROVED FOR PUBLICATION
          Plaintiff-Respondent,
                                          May 9, 2018
     v.
                                       APPELLATE DIVISION
ROBERT J. KOSCH, JR.,

          Defendant-Appellant.
_____________________________________________________

          Submitted April 17, 2018 – Decided May 9, 2018

          Before Judges Fisher, Fasciale and Sumners.

          On appeal from Superior Court of New Jersey,
          Law Division, Sussex County, Indictment No.
          13-05-0188.

          Robert J. Kosch, Jr., appellant pro se.

          Fredric M. Knapp, Morris County Prosecutor,
          attorney   for  respondent   (Paula  Jordao,
          Assistant Prosecutor, on the brief).

     The opinion of the court was delivered by

FISHER, P.J.A.D.

     Defendant appeals a judgment of conviction rendered after he

was resentenced following our decision on his first appeal. State

v. Kosch, 
444 N.J. Super. 368 (App. Div.), certif. denied, 
227 N.J. 369 (2016). Because our prior mandate did not permit a

resentencing on those convictions unaffected by our prior decision
without an adjudication of those counts as to which we ordered a

new trial, we reverse and remand.

     The circumstances that resulted in defendant's prosecution

and conviction of nine counts of theft, forgery, and trafficking

in personal identifying information, are fully recounted in our

earlier opinion, id. at 374-77, and need not be repeated here. It

suffices for present purposes to observe that we reversed the

convictions   on    three   counts   of   theft   of   immovable   property,


N.J.S.A. 2C:20-3(b), and remanded for a new trial on those counts.

We also then directed that "once those three counts are finally

adjudicated, defendant should be resentenced on all convictions,

including those" that went undisturbed. Kosch, 
444 N.J. Super. at
 392-93.   Without    adjudicating     those   three    counts,     the     judge

resentenced defendant on the convictions unaffected by our prior

decision. And, by ordering – for the first time – an extended

fifteen-year prison term, subject to a six-year period of parole

ineligibility, on the trafficking conviction, as to which he

previously assigned only a seven-year term,1 the judge imposed the

same aggregate prison term and parole ineligibility period as



1
  The record is particularly confusing about this count. In our
earlier opinion we referred to it, as it was described for the
jury, as "count 'eleven'" even though it was actually the tenth
count of a separate indictment.


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before. This new judgment of conviction was entered on March 2,

2017.

      Defendant appeals,2 and we now reverse and remand for further

proceedings.

      We start by considering whether the new judgment of conviction

is a final order.3 As noted, we previously reversed defendant's

convictions on three theft counts – counts one, six, and eight –

and   remanded   for   a   new   trial;   we   left   alone   the   remaining

convictions. The new judgment of conviction, however, contains no

disposition of the three remanded counts; the judgment merely

contains the observation that the "[p]rior adjudications on these

counts were vacated by the Appellate Division." Leaving those

three counts unadjudicated was no accident; the judge observed at

the resentencing hearing:

           Now, we are moving forward to a resentencing.
           And . . . this is without re-adjudicating
           counts one, six and eight. I think that is
           sensible, as the Appellate Division observed
           in another part of their opinion, there

2
  Defendant argues, among other things, that double-jeopardy
principles barred the new judgment and that the judge erred in
imposing an extended term for the first time on the so-called
eleventh count.
3
   Neither party suggested this possibility. Nevertheless,
appellate jurisdiction cannot be created by the silence or inaction
of the parties, and this court is under an obligation to ensure
its scarce resources are not needlessly expended on matters not
ripe for review. See Vitanza v. James, 
397 N.J. Super. 516, 519
(App. Div. 2008).

                                      3                               A-2982-16T3
           certainly seems as if there would be overlap
           in the merger in connection with those counts.

                 . . . .

           Now, in terms of what happens to counts one,
           six and eight, I think it may be at this point
           the doctrine of mandatory joinder or perhaps
           a form of double jeopardy or . . . lesser
           included of what might make it sensible not
           to proceed on those counts. Again, I've said
           and the Appellate Division had said that
           there's an overlap. So, I do think it is
           sensible to proceed in this fashion and . . .
           I suspect those counts, there would be no good
           reason ever to adjudicate them.

These comments demonstrate the judge was conscious of the fact

that the reason for our remand – the need for a final disposition

of those three counts – had not occurred. Despite our unambiguous

mandate, the judge deemed it appropriate to allow the State to

keep those three unadjudicated charges in its hip pocket pending

the outcome of defendant's inevitable appeal of the new judgment

of conviction. By proceeding in this manner, the judge entered a

new judgment of conviction that is not a final order.

     Ordinarily, we would dismiss such an interlocutory appeal,

see In re Appeal of Pennsylvania R.R. Co., 
20 N.J. 398, 404 (1956)

(recognizing that the rules presuppose "a single and complete

trial with a single and complete review" and forbid, absent leave

granted, a partial trial court adjudication followed by appellate

review   and   later   an   adjudication   in   the   trial   court   of   the


                                     4                                A-2982-16T3
remainder), but we will grant leave to appeal the new judgment of

conviction out of time because another circumstance warrants our

immediate intervention.

     That circumstance is simply this: our mandate did not permit

resentencing   absent   an   adjudication   of   the   three   immovable-

property counts. Kosch, 
444 N.J. Super. at 392-93 (directing that

resentencing may only occur "once those three counts are finally

adjudicated"). Whether in agreement or not, a trial judge is "under

a peremptory duty to obey in the particular case the mandate of

the appellate court precisely as it is written." Flanigan v.

McFeely, 
20 N.J. 414, 420 (1956); see also Lowenstein v. Newark

Bd. of Educ., 
35 N.J. 94, 116-17 (1961); Henebema v. Raddi, 
452 N.J. Super. 438, 450-51 (App. Div. 2017); State v. Henderson, 
433 N.J. Super. 94, 105 (App. Div. 2013). As we said in Tomaino v.

Burman, 
364 N.J. Super. 224, 233 (App. Div. 2003), "the very

essence of the appellate function is to direct conforming judicial

action." See also In re Plainfield-Union Water Co., 
14 N.J. 296,

303 (1954). Because we were unequivocal in directing that any

resentencing could only occur after a final disposition of the

three counts for which we remanded, the judge lacked the authority

to resentence this defendant without ensuring compliance with that

condition. So, without expressing any other view of the new

sentence imposed or the arguments defendant posed in this appeal,

                                   5                              A-2982-16T3
we reverse the March 2, 2017 judgment of conviction and remand for

further proceedings in conformity with our prior opinion and this

opinion as well. In light of the passage of time since our prior

mandate – more than two years – we assume the trial court will

complete the remanded proceedings with all due expedition.

     Reversed and remanded. We do not retain jurisdiction.




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