convictions were sole basis for finding probation
violation, probationer could then seek to renew challenge
to his violation of probation. See also State v. Lavoy, 259
N.J. Super. (App. Div. 1992).
Nichols v. U.S., 511 U.S. 738 (1994). Consistent
with Sixth and Fourteenth Amendments, uncounseled
misdemeanor conviction, valid due to absence of
imposition of prison term, is also valid when used to
enhance punishment at subsequent conviction.
According to Parke v. Raley, 506 U.S. 20 (1992), at
sentencing, due process does not require prosecution to
prove validity of prior conviction by clear and convincing
extra-record evidence where no transcript of prior
proceeding exists.
Neither due process nor double jeopardy will prevent
amendment of a sentence to correct any illegality therein.
State v. Baker, 270 N.J. Super. 55, 72-73 (App. Div.),
aff’d o.b., 138 N.J. 89 (1994); State v. Tavares, 286 N.J.
Super. 610, 617 (App. Div. 1996); State v. Koch, 256 N.J.
Super. 207 (Law Div. 1991); R. 3:22-12.
According to State v. LeFurge, 222 N.J. Super. 92
(App. Div.), certif. denied, 111 N.J. 568 (1988), delay of
defendant’s sentencing for three and one-half years did
not violate Sixth Amendment or due process rights of
defendant. The charge on which defendant was
convicted was dismissed post-conviction, State appealed,
and appeal was held up for a lengthy period as result of
significant delays on defendant’s part, with no suggestion
of purposeful stalling by government, appellate issues
raised by State were substantial and resulted in
reinstatement of defendant’s conviction, defendant never
claimed speedy trial right, his defense was not impaired,
and no cognizable prejudice to him resulted.
North Carolina v. Pearce, 395 U.S. 711 (1969), held
that due process prohibits imposing a more severe
sentence to discourage defendants from exercising their
statutory right to appeal. The Court ruled that a)
whenever a court imposes a harsher sentence upon a
defendant after a new trial, the reasons for the sentence
must affirmatively appear on the record, and b) those
reasons must be based on objective information
concerning identifiable conduct by defendant occurring
after the time of the original sentence.
State v. Ferguson, 273 N.J. Super. 486 (App. Div.),
certif. denied, 138 N.J. 265 (1994), held that due process
of law requires that vindictiveness against defendant who
is successful on appeal play no part in his or her new
sentence, but more severe sentence upon defendant’s
reconviction after successful appeal is not automatically
prohibited.In Texas v. McCullough, 475 U.S. 134 (1986), the
presumption of judicial vindictiveness did not apply, or
was overcome, where the trial judge granted a post-trial
motion for new trial on the ground of prosecutorial
misconduct, but after defendant’s reconviction imposed
a more severe sentence, since the trial court based the
harsher sentence on evidence not presented at the first
trial concerning defendant’s responsibility for the crime
and his prior criminal history.In Wasman v. United States, 468 U.S. 559 (1984),
the Court held a defendant may receive an increased
sentence, on reconviction after a successful appeal, if the
sentencing court relies on a criminal conviction after the
first proceeding. The sentencing court may consider
intervening events between the two sentencing
proceedings, such as a conviction, to justify an enhanced
sentence, to sufficiently rebut the presumption of
improper motive under the due process clause.According to State v. Pomo, 95 N.J. 13 (1983),
defendants who appeal municipal court sentences to the
Superior Court, Law Division, risk increased sentences if
they misrepresent their prior criminal record to the lower
court. While the court repeated the general rule that
defendants’ appealing municipal court convictions to the
Superior Court should not face sentence enhancement,
policy considerations dictate that defendants may not lie
to a municipal judge, with impunity, and then, on
appeal, restrict the Law Division to the sentence imposed
below.In State v. Heisler, 192 N.J. Super. 586 (App. Div.
1984), the sentencing court violated due process by
imposing a sentence five times greater than originally
imposed, following defendant’s successful appeal to
correct an illegal sentence. The court cautioned that
sentencing judges must articulate reasons to justify a
substantially enhanced sentence, not mandated by law,
after a defendant successfully challenges the initial illegal
sentence.State v Decher, 196 N.J. Super. 157 (Law Div. 1984).
held due process and fundamental fairness mandate that
a sentence imposed and served shall not be enhanced at
a later date. This rule applies if the State mistakenly fails
to notice and to count, for sentencing purposes on a