Appeal from the United States District Court for the District of New Jersey (C.A. No. 400-73).
Aldisert, Weis and Garth, Circuit Judges.
This is a habeas corpus case in which the United States District Court ordered that a state prisoner's sentence be vacated and that on resentencing in the state court the trial judge give the reasons for his action. At the time a prison term was originally imposed, the defendant was classified as a multiple offender under New Jersey law, but after discovering that such a designation was erroneous, the state court resentenced the defendant to the same period of incarceration. Because we find on the record here that the state court procedure did not violate due process, there was no basis for federal intervention, and we vacate the order of the district court.
On June 17, 1968, the defendant Washington was convicted in the New Jersey Superior Court on counts of resisting arrest as well as possession and control of narcotics under N.J.S.A. § 24:18-4. On December 2, 1968, he was sentenced to a prison term for those offenses.
On October 14, 1969, the defendant was again convicted of a narcotics offense which occurred on August 28, 1968 -- after the jury verdict in the first trial but before he was sentenced in that proceeding. As a result of the second conviction, an "accusation"*fn1 was issued against Washington, citing him as a multiple offender under the New Jersey Narcotics Offenders Act, N.J.S.A. § 24:18-47(c)(2). He was found guilty of that " accusation" on January 8, 1970, and on January 23, 1970, received a five to ten year sentence (five years being the mandatory minimum which could be imposed under that multiple offender statute). The state trial judge commented at the time of sentencing:
"However, for the second violation of the narcotics statute, I have no discretion about the first five years because that is a mandatory minimum for a second violation . . ."
After further discussion of defendant's conduct, the judge said:
"I'm satisfied that substantial punishment should be meted out in this case. It may be substantial or more than the defendant anticipates, but I think it's very fair and very reasonable under the circumstances."
Approximately one month later, on February 25, 1970, the New Jersey Superior Court decided State v. Johnson, 109 N.J. Super. 69, 262 A.2d 238 (App. Div. 1970). That case held that, under the New Jersey Narcotics Offenders Act, a defendant could not be sentenced as a second offender when the second offense occurred before the date of his first conviction.*fn1a
On learning of the Johnson decision, the sentencing court, sua sponte, ordered a hearing for resentencing of defendant Washington which was duly held on March 23, 1970. After the defendant and his counsel were heard, the court commented:
"Mr. Washington, I have spent a lot of time on this matter only because I was trying to seek some justification to satisfy my conscience that I ought to reduce or change the sentence completely . . . My attitude is that the consideration to be given now is not different than what it was in January. As Mr. Epstein [defendant's counsel] mentioned, the statute permits me to sentence you now, not as a multiple offender, to a period of not less than two years and not in excess of fifteen years, plus a $2,000 fine. However, again reviewing the [presentence] report, I see no reason why I should change that sentence. What is there today that is different than what it was in January, Mr. Washington?"
Defendant then claimed progress toward rehabilitation, and his counsel pointed out that, legally, Washington was no longer a multiple offender. The judge replied that he was not proceeding upon the multiple offender accusation and, after some further discussion, ...