State v. Tavares

In State v. Tavares, 286 N.J. Super. 610, 612, 670 A.2d 61 (App. Div.), certif. denied, 144 N.J. 376, 676 A.2d 1091 (1996), Tavares pleaded guilty to two counts of second-degree sexual assault by virtue of sexual contact with children under thirteen years of age. His plea was entered October 28, 1991 in accordance with a plea bargain by which the prosecutor undertook to recommend that he receive two consecutive sentences, each for eight years with three years' parole ineligibility. He was found subject to confinement to the Adult Diagnostic Treatment Center at Avenel, N.J.S.A. 2C:47-3, and he was sentenced to two indeterminate terms of not more than eight years each at that institution. He appealed. In an order dated May 11, 1994, the Court held that the sentence to indeterminate terms at Avenel was not authorized by law. Id. at 613, 670 A.2d 61. The Court added: Although we find that the imposition of consecutive terms to Avenel does not violate State v. Yarbough, 100 N.J. 627, 498 A.2d 1239 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), we caution the judge to explore the consequences of imposing two Avenel terms for a fixed number of years, to determine whether the result is in keeping with the judge's sentencing goals. State v. Tavares, supra, 286 N.J. Super. at 613, 670 A.2d 61. Without notice or a hearing, the sentencing judge entered an amended judgment on June 13, 1994, sentencing Tavares to two concurrent eight-year terms at Avenel. On October 28, 1994, the State moved for reconsideration of the amended sentence, arguing that the sentence, although within statutory limits, was "illegal" and therefore subject to be increased, because it had been entered in chambers, without notice to the State. That motion was argued January 20, 1995. The sentencing judge declined to change the sentence and the State appealed. Id. at 615, 670 A.2d 61. Tavares had been serving his sentence since June 13, 1994, without a stay. On appeal, we held that the sentencing procedure had been improper. Id. at 616, 670 A.2d 61. Because we had remanded for re-sentencing, and not to enter a specific sentence in accordance with our directions, the court should have conducted sentencing procedures anew, including a hearing on notice in open court. Ibid. For the purpose of our decision, we assumed that the improper sentencing procedure had made the sentence itself "illegal" so that the protection against double jeopardy did not preclude modifying the sentence to Tavares's disadvantage. Id. at 619, 670 A.2d 61. The Court concluded: Even assuming that the sentence is "illegal," the State had an obligation to raise the issue in a timely fashion. The State could not wait, as it did, for four months after learning of the irregularity while defendant was serving his sentence. While an "illegal" sentence is "correctable at any time," the State has an obligation to move quickly when asserting an "illegality" because the defendant has an expectation of finality of a sentence within the parameters of statutory limits (at least in the absence of some appeal or post-conviction proceeding pending on his or her application). Here the State waited over four months after learning of the remand sentence before taking any action to correct what it now contends to have been a fundamental injustice. But cf. R. 1:7-4; 2:4-1(a). Even though the State did not know about the defendant's resentencing when it occurred, it is uncontested that the prosecuting attorney learned of the new sentence in June 1994, shortly after it was imposed, but did not file a "motion for reconsideration" for more than four months thereafter. This was far too late. Ibid.