Split Sentences and Parole Ineligibility (Part 2)

Judge Vernoia continued in relevant part: The enumerated sentencing alternatives listed in N.J.S.A. 2C:43-2(b) must be applied “except as provided in subsection (a),” and subsection (a) includes a more general exception. N.J.S.A. 2C:43-2(a) requires sentencing in accordance with the seven enumerated sentencing alternatives, “except as otherwise provided by” the Criminal Code. In other words, the enumerated sentencing alternatives are authorized and must be employed in sentencing unless the Criminal Code provides otherwise.

As we have explained, defendant was sentenced in exacting compliance with N.J.S.A. 2C:43-2(b)(2)’s plain language, and the Criminal Code does not “otherwise provide” that a split sentence cannot include a period of parole ineligibility. Indeed, defendant does not identify any statutory provision barring imposition of a period of parole ineligibility on the term of imprisonment imposed as part of a split sentence. Again, if the Legislature intended to prohibit a split sentence that included a term of imprisonment subject to a mandatory period of parole ineligibility, it would have “otherwise provided” for such an exception in the Criminal Code. It did not, and we cannot find or rely upon that which is not there. 

In Rodriguez, the Court determined an intermittent custodial sentence imposed pursuant to subsection (b)(7) of N.J.S.A. 2C:43-2 was not an authorized sentence of imprisonment for a conviction under N.J.S.A. 2C:40-26(c). The Court discussed the differences between an intermittent sentence of imprisonment and a sentence of imprisonment subject to a period of parole ineligibility, and it found service of an intermittent sentence under N.J.S.A. 2C:43-3(b)(7) is inconsistent with, and does not meet the requirements of, the period of parole ineligibility mandated under N.J.S.A. 2C:40-26(c). Id. at 114-19. We have similarly held a sentence that is inconsistent with service of a mandatory period of parole ineligibility is an unauthorized and illegal sentence.

The Legislature has great latitude in fixing harsh sentencing ranges. It is unlikely that it would “shock the judicial conscious” if it one day further harshens the punishment for this offense by making it a third-degree crime with a maximum five-year sentence and a period of parole ineligibility.