Resentencing After A Remand for A New Trial (Part 1)

On May 9, 2018, a three-judge appellate panel decided the Sussex County case of State v. Robert Kosch, Jr. The principle issue under N.J.S.A. 2C:44-7 is whether a trial court can resentence a defendant on the remaining unaffected convictions after the Appellate Division directs a new trial on several theft convictions.

In relevant part, the Court held as follows: The circumstances that resulted in defendant’s prosecution and conviction of nine counts of theft, forgery, and trafficking in personal identifying information, are fully recounted in our earlier opinion, and need not be repeated here. It suffices for present purposes to observe that we reversed the convictions on three counts of theft of immovable property and remanded for a new trial on those counts. We also then directed that “once those three counts are finally adjudicated, defendant should be resentenced on all convictions, including those” that went undisturbed. Without adjudicating those three counts, the judge resentenced defendant on the convictions unaffected by our prior decision. And, by ordering – for the first time – an extended fifteen-year prison term, subject to a six-year period of parole ineligibility, on the trafficking conviction, as to which he previously assigned only a seven-year term, the judge imposed the same aggregate prison term and parole ineligibility period as before. This new judgment of conviction was entered on March 2, 2017. Defendant appeals, and we now reverse and remand for further proceedings.

The trial court appears to have taken a cavalier approach to the handling of this case after it was remanded. Not only did the judge ignore the higher court’s order, but s/he also undermined their own prior sentence in an effort to reach the same result that was reversed on appeal. One possible explanation for the Court’s approach is that s/he was angry about being reversed on appeal. Another is that the judge suspected that any subsequent appeal would be made pro se, i.e. without the assistance of appellate counsel. Here, the pro se defendant was, unlike most, capable of executing a successful appeal.