STATE V. JAMES BAKER

SYLLABUS
 

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

STATE OF NEW JERSEY V. JAMES BAKER (A-20-94)
 

(NOTE: This Court wrote no full opinion in this case. Rather, the Court's affirmance of the judgment of the Appellate Division is based substantially on the reasons expressed in Judge Skillman's opinion written below.)

Argued September 27, 1994 -- Decided October 27, 1994

James Baker and codefendant Stephen Garry were indicted for second degree robbery, attempted kidnapping, criminal restraint, kidnapping, and aggravated sexual assault. Pursuant to a plea bargain under which he agreed to testify against Baker, Garry pleaded guilty and was sentenced to a thirty-year term of imprisonment, with fifteen years of parole ineligibility. The State also offered Baker a plea bargain of a maximum term of thirty years with fifteen years of parole ineligibility that Baker turned down, electing instead to go to trial. Thereafter, a jury convicted Baker of robbery, attempted kidnapping, kidnapping and aggravated sexual assault. On December 4, 1987, Baker was sentenced to an aggregate term of twenty-seven years imprisonment with eleven years of parole ineligibility.

Baker appealed his conviction to the Appellate Division. The State cross-appealed, contending that Baker's sentence for kidnapping was illegal. The Appellate Division affirmed Baker's conviction but remanded the matter to the trial court for reconsideration of the sentence in light of the recent amendment to the kidnapping statute. That amendment requires that, if convicted of first degree kidnapping, the kidnapper serve a period of twenty-five years during which he or she is not eligible for parole. This sentence is mandatory when the victim of the kidnapping is less than sixteen years of age and has been sexually assaulted. Because Baker had committed the kidnapping in January 1987, after the amendment to the statute, and the less-than-sixteen-year-old victim had been sexually assaulted, the twenty-five year sentence was mandatory. Baker's motion for reconsideration of that remand was denied, as was his petition to the Supreme Court for certification.

Baker filed a petition for post-conviction relief, alleging that he had been denied effective assistance of counsel because his attorney had failed to present certain exculpatory evidence at trial, and that he had been denied due process and equal protection of the law because the State had entered into a plea bargain with Garry under which he testified against Baker in exchange for an illegally short sentence. After an evidentiary hearing, the trial court denied Baker's petition for post-conviction relief. Sometime thereafter, Baker was resentenced, pursuant to the remand, to a twenty-five-year term of imprisonment with a twenty-five-year parole disqualifier. This more than doubled the period of parole ineligibility imposed under the original sentence.

Baker filed separate notices of appeal from the denial of his petition for post-conviction relief and his resentence. Both were consolidated by the Appellate Division. That court affirmed Baker's conviction, finding that specific instances of trial counsel's conduct or failure to act did not, singularly or cumulatively, amount to ineffective assistance of counsel. A majority of the Appellate Division panel also found that Garry's testimony against Baker involving an illegal sentence did not deny Baker due process of law because the jury, while unaware that Garry had received a sentence that failed to include a mandatory period of parole ineligibility, did understand that Garry had received a reduced sentence in exchange for agreeing to testify against Baker.

Before the Appellate Division, Baker claimed that his resentencing to the twenty-five year term of imprisonment without eligibility for parole mandated by the amended kidnapping statute was fundamentally

unfair because at the time he was considering the State's plea offer, he was not advised that he was subject to this mandatory term if convicted. As such, the sentence violated the double jeopardy clauses and due process guarantees of the Federal and State Constitutions. In addressing that argument, the majority noted that if an original sentence imposed on a defendant is illegal, that sentence may be corrected at any time even if it requires an increase in the term of imprisonment. The panel found no support in the federal constitution or in the federal cases for Baker's due process and double jeopardy arguments. The majority held that there was nothing foreclosing the court from imposing a statutorily mandated sentence.

The majority of the Appellate Division noted that recent State cases have also held that an illegal sentence can be corrected, even if it involves an increase in the aggregate sentence. The panel concluded that even if Baker had a subjective expectation of the finality of his original sentence, it would not be a "legitimate" expectation entitled to protection under the double jeopardy clauses of the State and Federal Constitutions because it would be inconsistent with the statutorily mandated minimum sentence.

Baker also contends that there was an unconstitutional disparity between the sentence imposed on him at resentencing and the sentence previously imposed on Garry. The Appellate Division majority noted that there are significant differences in the status of the Baker and Garry cases. Garry entered a negotiated plea with the State while Baker appealed both his conviction and sentence. The Appellate Division found that the disparate sentences flowed from the difference in the procedural courses of the cases rather than any arbitrary action by the prosecutor or the court. As such, the differences in sentence do not constitute a denial of Baker's equal protection guarantees.

One member of the Appellate Division panel dissented, finding that, although as a doctrinal matter an illegal sentence may always be corrected, there are features in a particular case that may dictate otherwise. Judge Kestin found a combination of factors to suggest that Baker had not been dealt with fairly. Because no one involved at the time of the trial was aware of the recent amendment to the kidnapping statute requiring a mandatory minimum of twenty-five years, Baker was not given the opportunity to consider a plea offer from the State in light of the actual risks involved in rejecting it. Moreover, the dissent found that defense counsel's ignorance of the amendment to the statute precluded an effective cross-examination of Garry on the basis that he received an illegally low sentence in exchange for his testimony. Thus, given the unusual confluence of events and circumstances of this case, the dissent concluded that it is fundamentally unfair to impose the mandatory minimum sentence on Baker. Such a sentence violates important underlying values of decency and fair play, thereby denying Baker due process of law.

HELD: Judgment of the Appellate Division is AFFIRMED substantially for the reasons expressed by Judge Skillman in his written opinion below. Resentencing Baker to a greater term on remand did not violate the double jeopardy clauses and due process guarantees of the Federal and State constitutions. Moreover, the fact that Baker's sentence was longer than codefendant's sentence did not consitute a denial of the equal protection guarantees of the Federal and State constitutions. Lastly, codefendant's testimony against Baker under a plea bargain that involved an illegal sentence did not deny Baker due process of law.

JUSTICE O'HERN, dissenting, is in substantial agreement with the views expressed in Judge Kestin's dissenting opinion below.

CHIEF JUSTICE WILENTZ and JUSTICES CLIFFORD, HANDLER, POLLOCK, GARIBALDI and STEIN join in this opinion. JUSTICE O'HERN has filed a separate dissenting opinion.

SUPREME COURT OF NEW JERSEY
A- 20 September Term 1994

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES BAKER,

Defendant-Appellant.

Argued September 27, 1994 -- Decided October 27, 1994

On appeal from the Superior Court, Appellate Division, whose opinion is reported at 270 N.J. Super. 55 (1994).

Robert L. Sloan, Assistant Deputy Public Defender, argued the cause for appellant (Susan L. Reisner, Acting Public Defender, attorney).

Robert A. Suarez, Assistant Prosecutor, argued the cause for respondent (Andrew K. Ruotolo, Jr., Union County Prosecutor, attorney; Mr. Suarez and Steven J. Kaflowitz, Assistant Prosecutor, of counsel and on the letter brief).

Janet Flanagan, Deputy Attorney General, argued the cause on behalf of amicus curiae, Attorney General of New Jersey (Deborah T. Poritz, Attorney General, attorney).

PER CURIAM

The judgment is affirmed, substantially for the reasons expressed in Judge Skillman's majority opinion for the Appellate Division, reported at 270 N.J. Super. 55 (1994).

CHIEF JUSTICE WILENTZ and JUSTICES CLIFFORD, HANDLER, POLLOCK, GARIBALDI, and STEIN join in this opinion. JUSTICE O'HERN has filed a separate dissenting opinion.

SUPREME COURT OF NEW JERSEY
A- 20 September Term 1994

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES BAKER,

Defendant-Appellant.

O'HERN, J., dissenting.

I would reverse, substantially for the reasons expressed in Judge Kestin's dissenting opinion, reported at 270 N.J. Super. 79 (1994).

SUPREME COURT OF NEW JERSEY
 

NO. A-20

SEPTEMBER TERM 1994
ON APPEAL FROM Appellate Division, Superior Court ON CERTIFICATION TO

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES BAKER,

Defendant-Appellant.

DECIDED October 27, 1994
Chief Justice Wilentz

PRESIDING
OPINION BY Per Curiam CONCURRING OPINION BY
DISSENTING OPINION BY Justice O'Hern CHECKLIST
AFFIRM REVERSE CHIEF JUSTICE WILENTZ X JUSTICE CLIFFORD X JUSTICE HANDLER X JUSTICE POLLOCK X JUSTICE O'HERN X JUSTICE GARIBALDI X JUSTICE STEIN X TOTALS
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