The New Jersey Supreme Court continued:
Subsection (a) of N.J.S.A. 2C:44-5 provides that “not more than one sentence for an extended term shall be imposed.” Subsection b provides that, “when a defendant who has previously been sentenced to imprisonment is subsequently sentenced to another term for an offense committed prior to the former sentence (1) The multiple sentences imposed shall so far as possible conform to subsection a.” In Hudson, supra, the Court held that the “so far as possible” qualifier is triggered only when compliance cannot be achieved, as, for example, when the second extended-term sentence is mandatory.
The Court reviews pre-Hudson cases that interpreted N.J.S.A. 2C:44-5 and notes that they focused on subsection a, not on subsection b. Because no precedent on subsection b existed, precedent did not dictate an opposite result. Hudson neither broke new ground, nor imposed a new obligation on the State. Hudson represents an enunciation of the statutory language present since the statute’s enactment in 1978, and the prohibition against imposing two discretionary extended-term sentences is simply the rule that has, or should have, always been applied. As a result, the Court does not delve any further into the retroactivity analysis, but rather analyzes defendant’s sentence under the rule espoused in N.J.S.A. 2C:44-5(b)(1) since the statute’s enactment.
The Court agrees with the Appellate Division that, under the strictures of N.J.S.A. 2C:44-5(b)(1), defendant’s sentence is illegal and cannot stand. Because the sentence in indictment 1263 is the only one before the Court, that is the sentence that the trial court should revisit. It would be interesting to see how the defendant’s sentencing exposure would differ if the other indictment happened to be before the Court on appeal. Although the total harm done would be the same, i.e. Bull would still be guilty of the exact same crimes, the chronological order of the crimes could have an enormous impact on his sentencing exposure if the indictments related to crimes of different degrees. For example, if a first degree extended term is vacated instead of a second degree extended term, Bull will likely serve decades less in prison.
The Court concluded:
In future cases, where a reviewing court is considering two or more sentences under this statute, the State may choose which indictment it seeks an extended term for at a new sentencing hearing, so long as defendant is credited for any portion of the extended sentence that defendant may have already served. The judgment of the Appellate Division was affirmed. The second extended-term sentence was vacated and the case was remanded to the trial court for resentencing.