State v. Schubert, A-15 September Term 2011; Supreme Court; opinion by Wefing, P.J.A.D., temporarily assigned; dissent by Hoens, J.; decided October 22, 2012. On certification to the Appellate Division. [Sat below: Judges Rodríguez, Miniman and LeWinn in the Appellate Division; Judge Kreizman in the Law Division.] DDS No. 14-1-8041 [48 pp.]

Defendant Joseph Schubert Jr. agreed to plead guilty to sexual assault. The state agreed to dismiss the remaining charges and recommend a noncustodial period of probation. Defendant executed the plea form and two additional forms containing questions for sexual offenses, one of which warned that he would be subject to community supervision for life (CSL). As part of the plea colloquy, defendant acknowledged that he would have to register in the community in which he resides and would need to provide verification of his address every 90 days.

Defendant was sentenced to three years’ probation, which he successfully completed. He was discharged from probation in June 2003.

In October 2007, the chairman of the New Jersey State Parole Board notified the trial court that defendant’s sentence did not contain any reference to CSL in accordance with N.J.S.A. 2C:43-6.4. The trial court then entered an amended judgment of conviction specifying that defendant was sentenced to CSL.

Defendant filed a petition for postconviction relief. He contended that the court lacked jurisdiction to amend the judgment because he had already completed his sentence and that doing so constituted double jeopardy, denied him due process of law, and was fundamentally unfair.

The trial court denied defendant’s petition. The Appellate Division reversed, concluding that the trial court’s action violated defendant’s double-jeopardy rights. The state’s petition for certification was granted.

Held: A trial court may not amend a judgment of conviction to include a provision erroneously omitted at the time of sentencing that increases the punitive consequences of that sentence after a defendant has finished serving his sentence. Because community service for life is punitive, the amendment of his judgment of conviction to include community supervision for life violated the constitutional prohibition against double jeopardy.

Community supervision for life has its statutory source in N.J.S.A. 2C:43-6.4, the Violent Predator Incapacitation Act, one of a series of laws referred to as “Megan’s Law.” At the time of defendant’s offense, plea and sentence, it directed that a trial court “shall include, in addition to any sentence authorized by this Code, a special sentence of community supervision for life.”

The court says that to decide whether the trial court could amend defendant’s judgment of conviction, it must first determine whether CSL is punitive or remedial. If it is remedial, double-jeopardy principles are inapplicable.

The court compares CSL with the registration and notification requirements in 2C:7-1 to -11, which Doe v. Poritz, 142 N.J. 1 (1995), found to be remedial. It says the mere loss of anonymity that flows from the registration and notification requirements cannot be equated with the significant restrictions that are attendant to CSL. For example, unlike a person subject to registration, an individual who is subject to CSL must obtain his parole officer’s permission regarding where to live and work, he is subject to random drug and alcohol testing and a yearly polygraph examination, and he is restricted in the use of a computer and the Internet.

Also, the court notes significant distinctions in the language in both statutes. N.J.S.A. 2C:7-3(1) states that the “court imposing a sentence … shall notify the defendant of the obligation to register.” N.J.S.A. 2C:43-6.4(a) provided at that time that the court “imposing sentence on a person who has been convicted of [certain specified sexual offenses] shall include, in addition to any sentence authorized by this Code, a special sentence of community supervision for life,” clearly indicating that the Legislature viewed CSL as an integral part of a sentence, rather than an administrative obligation after completion of the sentence. Further, 2C:43-6.4 appears in the sentencing provisions of the code while the registration and notification requirements appear elsewhere. Further, at least two appellate panels have concluded that CSL is punitive.

Satisfied that 2C:43-6.4 is punitive, the court then considers whether the trial court’s action was a valid correction of an illegal sentence, as argued by the state, or an improper imposition of an additional penalty.

Rule 3:21-10(b) provides that a court may correct a sentence not authorized by law at any time. A number of courts have opined that a court may correct an illegal sentence at any time even though the imposition of a lawful term involves an increase in the aggregate sentence. However, that principle is not unlimited. In discussing the predecessor to Rule 3:21-10, State v. Laird, 25 N.J. 298 (1957), stated that the “at any time” phrase did not authorize an enlargement of the punishment after the sentence had been satisfied.

The court says only two reported New Jersey decisions have permitted modification of a judgment of conviction that omitted the mandated provision for CSL but both are distinguishable. In one, the state sought to amend the judgment of conviction before the defendant had completed his probationary term. In the second, the state had appealed the sentence and the defendant cross-appealed the conviction so the issue of the sentence was properly before the court.

The court says that at least by the time he was discharged from probation, defendant had a legitimate expectation of finality in his sentence, particularly since there is no indication that either defendant or his attorney had attempted to mislead the court regarding CSL.

The court says to permit defendant’s sentence to be increased after it has been completed would violate his fundamental rights under the Double Jeopardy Clauses of the U.S. and N.J. constitutions.

The dissent says that there is no constitutional impediment to correcting defendant’s sentence to include CSL because CSL is not punitive and there can be no legitimate expectation of finality in an illegal sentence.

For appellant — Brian J. Uzdavinis, Deputy Attorney General (Jeffrey S. Chiesa, Attorney General). For respondent — Philip A. DeVencentes (Galantucci & Patuto).