STATE OF NEW JERSEY v. IAN P. STEINGRABER

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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3781-19T3

STATE OF NEW JERSEY,

Plaintiff-Appellant, APPROVED FOR PUBLICATION
December 1, 2020
v. APPELLATE DIVISION

IAN P. STEINGRABER,

Defendant-Respondent.

Submitted October 15, 2020 – Decided December 1, 2020

Before Judges Whipple, Rose, and Firko.

On appeal from the Superior Court of New Jersey,
Law Division, Union County, Accusation No. 14-08-
0867.

Lyndsay V. Ruotolo, Acting Union County
Prosecutor, attorney for appellant (Michele C.
Buckley, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).

Ernest G. Ianetti, attorney for respondent.

The opinion of the court was delivered by

ROSE, J.A.D.

This appeal requires us to decide whether the terms of a negotiated plea

agreement waived the prosecutor's requirement to move for imposition of
parole supervision for life (PSL) under N.J.S.A. 2C:43-6.4. We granted the

State's motion for leave to appeal from an April 27, 2020 Law Division order,

granting defendant Ian Steingraber's amended petition for post-conviction

relief (PCR), as further amended by the PCR court sua sponte to a motion for

reduction of sentence pursuant to Rule 3:21-10(b)(4). The PCR court

concluded the trial court's imposition of PSL – in the absence of a motion by

the prosecutor as required under the PSL statute – constituted an illegal

sentence. Having conducted a de novo review of the record and governing

principles, we are persuaded the PCR court erred as a matter of law.

Accordingly, we reverse the PCR court's order, but remand for the trial court

to consider whether PSL should have been imposed.

In August 2014, defendant waived his rights to indictment and trial by

jury, and pled guilty to an accusation charging him with second-degree

endangering the welfare of a child, N.J.S.A. 2C:24-4(b)(5)(a). Defendant

admitted he uploaded to the internet images "that depicted sexual intercourse

between children less than eighteen" years old. In exchange for defendant's

guilty plea, the State agreed to dismiss the remaining endangerment charge,

and recommended sentencing defendant within the third-degree range, limited

to a four-year term of imprisonment. See N.J.S.A. 2C:44-1(f)(2). Although

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defendant was not required to submit to an evaluation at the Adult Diagnostic

and Treatment Center in Avenel, defendant's plea was subject to "Megan's Law

ramifications . . . including parole supervision for life." 1

Defendant acknowledged he initialed and signed each page of the plea

form and signed the supplemental PSL and Megan's Law forms. The trial

court also asked defendant whether he understood "parole supervision for life

. . . mean[t] just that" because "[n]ormally there's a limitation o[n] how long

you're on parole based upon the crime. But for certain crimes there's no

limitation, it is for life." Defendant responded affirmatively. The court again

asked whether defendant understood that under the terms of his plea bargain:

"Avenel does not apply, Megan's Law does, parole supervision for life does."

Defendant again responded, "Yes." The court accepted the guilty plea, finding

defendant "underst[ood] his rights" and "freely and voluntarily" entered his

guilty plea.

Defendant was sentenced on November 21, 2014 by another judge and

was represented at the hearing by another assigned counsel. The State urged

1
Effective February 1, 2018, the Legislature amended N.J.S.A. 2C:47-1 of the
Sex Offender Act, N.J.S.A. 2C:47-1 to -10, to require a defendant convicted of
second-degree endangering the welfare of a child under N.J.S.A. 2C:24-
4(b)(5)(a), to submit to a psychological evaluation at the Adult Diagnostic and
Treatment Center.

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the court to sentence defendant pursuant to the terms of the plea agreement.

For reasons that are not relevant here, defense counsel argued defendant had

overcome the presumption of imprisonment, N.J.S.A. 2C:44-1(d), and asked

the court to sentence defendant to probation. Implicitly recognizing it could

not place defendant on probation and PSL simultaneously, N.J.S.A. 2C:43- -

2(g), and finding three mitigating factors "significantly and substantially"

outweighed the sole aggravating factor, the court sentenced defendant to a

four-year term of imprisonment, but "suspend[ed] the imposition of that

custodial sentence on condition that he successfully complete parole

supervision for life; that he comply with all Megan's Law registration

provisions." See N.J.S.A. 2C:43-2(b).

The court elaborated:

I gave you four years but you don't have to do that
four years as long as you successfully complete your
parole supervision for life. If you violate that, without
anything further, you could be brought back to court
and sentenced to four years in state prison. The same
applies . . . with respect to computer access. If it's
determined that between now and the time you are
placed on parole supervision or anytime thereafter,
that you have access to a computer, you could be
violated on this sentence, the suspension of the
custodial portion would be vacated and you could be
sentenced to four years in state prison.

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See State v. Rivera, 124 N.J. 122, 126 (1991) (recognizing "[a] court may

suspend the imposition of a sentence only after first determining that a non -

custodial sentence is authorized and appropriate").

When asked whether he understood the terms of his sentence, defendant

politely responded, "Yes, I do, Your Honor." Defense counsel further

informed defendant on the record that in addition to a prison term of up to four

years for a PSL violation, he could be charged with a separate fourth-degree

offense for the violation. See N.J.S.A. 2C:43-6.4. Defendant again

acknowledged he understood the ramifications of his sentence.

Defendant did not file a direct appeal. In March 2017, defendant

apparently was sentenced to a six-year term of imprisonment with five years of

parole ineligibility for another conviction of second-degree endangering the

welfare of a child, N.J.S.A. 2C:24-4(b)(5)(a) (subsequent matter). 2

In May 2019, defendant filed a pro se petition for PCR; assigned counsel

thereafter amended defendant's petition, asserting the "plea bargain

impermissibly infringed on the court's sentencing discretion." According to

the PCR court: "The crux of defendant's surviving claim [wa]s that the PSL

sentence imposed by the court . . . [wa]s illegal because the State failed to

2
The record on appeal does not contain defendant's judgment of conviction
for the subsequent matter.

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make a formal application for the imposition of the sentence." Defendant

further claimed the sentence violated his due process rights.

In a written decision accompanying its April 27, 2020 order, the PCR

court granted defendant's application. Strictly construing N.J.S.A. 2C:43- -

6.4(a), the PCR court found the statute "expressly and unequivocally required

the State to file a motion for the imposition of . . . PSL, and reserved discretion

to the [sentencing] court for its imposition." 3 In reaching its decision, the PCR

court rejected the State's argument that the negotiated plea agreement, which

included the PSL condition, waived "the prosecutor's filing requirements and

the [sentencing] court's discretion" to impose PSL. Instead, the court

concluded the State's motion was "a required presentencing condition, without

which render[ed] the subsequent sentence illegal."

On appeal, the State essentially argues defendant's sentence was

authorized by law and, as such, it was not illegal. Acknowledging PSL is not

mandated under N.J.S.A. 2C:24-4(b)(5), and the prosecutor was obligated to

move to impose the condition here, the State maintains "the recording of the

3
The PCR court incorrectly determined the 2017 amendments to the PSL
statute and N.J.S.A. 2C:24-4(b)(5)(a) "ma[de] a PSL sentence mandatory
under the facts present[ed] here." That subsection of the endangerment statute
still requires the State to move for the imposition of PSL. See n.3 below.
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[PSL] provision on the plea form, which was signed by defendant and orally

placed on the record by the court, served as the State's motion."

II.

We review the legality of a sentence de novo, "affording no special

deference to the court['s] interpretation of the relevant statutes." State v.

Nance, 228 N.J. 378, 393 (2017). A court may correct an illegal sentence "at

any time before it is completed." State v. Murray, 162 N.J. 240, 247 (2000);

see also R. 3:21-10(b). If a defendant's sentence is illegal, a reviewing court

must remand for resentencing. See State v. Romero, 191 N.J. 59, 80-81

(2007).

"There are two categories of illegal sentences: those that exceed the

penalties authorized for a particular offense, and those that are not auth orized

by law." State v. Hyland, 238 N.J. 135, 145 (2019). Both categories are

"defined narrowly." Ibid. (quoting Murray, 162 N.J. at 246). The second

category, which is at issue on this appeal, includes a sentence that "fails to

satisfy required presentencing conditions." Murray, 162 N.J. at 247.

N.J.S.A. 2C:43-6.4 requires the State to move for PSL as a presentence

condition to certain convictions for endangering the welfare of a child,

including the conviction at issue here, N.J.S.A. 2C:24-4(b)(5)(a). At the time

of defendant's sentence, the PSL statute provided in pertinent part:

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Notwithstanding any provision of law to the contrary,
. . . a court imposing sentence on a person who has
been convicted of endangering the welfare of a child
pursuant to paragraph (4) or (5) of subsection b. of
N.J.S.A. 2C:24-4, . . . shall include, upon motion of
the prosecutor, a special sentence of parole
supervision for life in addition to any sentence
authorized by Title 2C of the New Jersey Statutes,
unless the court finds on the record that the special
sentence is not needed to protect the community or
deter the defendant from future criminal activity.

[ N.J.S.A. 2C:43-6.4(a) (2013) (emphasis added). 4]

As the PCR court correctly recognized, "the State did not file" a motion

for PSL and "the [trial] court made no findings regarding its imposition."

Under Rule 1:6-2, however, a motion need not be filed formally; it may be

made orally during a court hearing. Indeed, we have recognized "the rules of

court permit oral motions if they are 'made during a trial or hearing,' or if 'the

court permits it to be made orally.'" State v. Washington, 453 N.J. Super. 164,

201-02 (App. Div. 2018) (quoting R. 1:6-2(a)).

Nor do we agree with the PCR court's analysis, which compared the lack

of a "forgiving provision" in the PSL statute with an express waiver provision

in the sentencing rule governing extended terms. See R. 3:21-4 (e) and (f)

4
The present version of N.J.S.A. 2C:43-6.4(a) still requires a motion of the
prosecutor but was amended to include "a person who has been convicted of
endangering the welfare of a child pursuant to paragraph (4) or subparagraph
(a) or sub-subparagraph (iii) of subparagraph (b) of paragraph (5) of
subsection b. of N.J.S.[A.] 2C:24-4 . . . ."
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(providing "[i]f the negotiated disposition includes the recommendation of an

extended term, the prosecutor's oral notice and the recordation of the extended

term exposure in the plea form completed by defendant and reviewed on the

record shall serve as the State's motion"). The inclusion of the waiver

provision in a court rule is not indicative of the Legislative intent of a statute.

Nonetheless, we disagree with the State that the negotiated plea

agreement substituted for the State's obligation to move for PSL. Although the

plea agreement and the court expressly stated defendant's plea subjected him to

PSL – as defendant acknowledged during the plea hearing – imposition of PSL

is not mandated under N.J.S.A. 2C:43-6.4. Neither the plea agreement nor the

court indicated defendant waived the sentencing court's ability to "find[] on the

record that the special sentence [wa]s not needed to protect the community or

deter . . . defendant from future criminal activity." N.J.S.A. 2C:43-6.4. At

sentencing, the court failed to engage in that analysis. But that omission does

not render defendant's sentence illegal here, where PSL is permitted under

N.J.S.A. 2C:43-6.4., for defendant's violation of N.J.S.A. 2C:24-4(b)(5)(a).

Accordingly, we reverse the PCR court's determination that defendant's

sentence was illegal, but we remand to for a limited resentencing proceeding

for the trial court to consider whether it would have imposed PSL when it

sentenced defendant. In that regard, the trial court should consider whether

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PSL was "not needed to protect the community or deter . . . defendant from

future criminal activity" under the PSL statute. Unlike resentencing for an

illegal sentence, however, on remand the trial court should not "view

defendant as he stands before the court on that day." State v. Randolph, 210 N.J. 330, 354 (2012). Instead, we direct the trial court to determine the

applicability of the PSL provision "from the vantage point of the original

sentencing." Ibid.

Reversed and remanded. We do not retain jurisdiction.

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