State v. Schneider

Per Curiam.

Defendant was charged in two indictments with various counts of conspiracy, larceny and embezzlement. By retraxit motion granted, he pleaded guilty to six counts of embezzlement (N. J. S. A. 2A:102-5) and to conspiracy (N. J. S. A. 2A:98-1). On the conspiracy count he was sentenced to one to three years in State Prison and fined $1,000. *55The embezzlement counts appeared in a separate indictment. On each of the six counts to which he pleaded guilty a $500 fine was assessed. Additionally, defendant was sentenced to concurrent State Prison terms of one to three years on each of these counts. However, the sentence on the last of these counts was suspended and a three-year probationary period was imposed.

Defendant filed a notice of appeal.1

Thereafter, the sentencing judge summoned the parties and advised them of circumstances whereby he had been apprised of defendant’s position that his imposition of probation of the suspended sentence constituted a “split sentence,” and was illegal. The judge explained, as indeed he had at the time of sentencing, that he contrived the suspended sentence and fairly lengthy probation to accommodate defendant financially by extending the time through a subsequent probation period during which defendant could pay his fines.

Following this explanation, the judge gave defendant, who was present throughout, an opportunity to confer with counsel. Counsel reported:

He [the defendant] understands the hearing today. He understands what the Court has said, and he understands what I have said, and he and I have just discussed it a little bit, and he would request through me and we do request that we simply vacate the probationary part of the sentence on the last count in which he was sentenced, allow the suspended sentence to stand. It will clear up any possible question of illegality, and the defendant understands that his appeal will then be directed solely to the question of the *56excessiveness of the sentence and whether he should have bail pending appeal.

The judge went to great lengths in explanation and in inviting assistance from defendant’s attorney, because, as he put it,

* * * I don’t want to see the Court whipsawed into a position where at this end it’s doing something that it thinks may be a benefit to the defendant, and at the other end, the Appellate end, the same defendant is saying what you did was illegal.
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All I tried to do was in a complex matter all through, impose what I thought was the real punishment here, which was the jail sentence, and then accommodate as far as I could on the fine.
Now, if we can have a meeting of the minds, fine, but I don’t want to do something which I think is for the defendant’s benefit and have him think it’s for his benefit, and then have it also thrown back as being illegal, because that’s a contradiction in terms as far as I’m concerned.

The judge’s fears were realized. In addition to arguing before us that his sentence “was manifestly excessive and an abuse of discretion,” defendant seeks a remand, saying in his brief, “Notwithstanding the Court’s desire to amend the sentence on its’ [sic] own initiatve [sic], it was an action totally lacking in jurisdictional authority.” ’

Legally the argument is sound. Except for certain limited proceedings not here involved, the filing of a notice of appeal divests the trial court of jurisdiction. R. 2:9-1 (a); Kohn’s Bakery, Inc. v. Terraciano, 147 N. J. Super. 582 (App. Div. 1977); Sturdivant v. General Brass & Machine Corp., 115 N. J. Super. 224 (App. Div. 1971), certif. den. 59 N. J. 363 (1971). Accordingly we must vacate the corrected sentence. We do this not because the substance of what the judge did was wrong, nor because of any unfair treatment of defendant — indeed, the judge could not have been more solicitous of defendant’s welfare. We do this only because while this appeal was pending the sentencing judge had no jurisdiction in the premises.

*57We turn to tlio only remaining issue: the alleged excessiveness of the sentence. We find no merit to the argument. Defendant’s plea was a negotiated one. The State undertook to recommend that the aggregate sentence not exceed five years total. Additionally, it agreed to advise the court at sentencing of the degree of cooperation by defendant at the trial of others. Finally, the State agreed to recommend dismissal of numerous other counts against defendant. The State fully performed its obligations. The sentence is within statutory limits and the perimeters of the negotiated plea. The sentencing judge was articulate and precise in his statement of reasons underlying his judgment at the sentencing and producing his inescapable conclusion “that the crime is serious enough to justify a custodial sentence.” We find no compelling circumstances, including the alleged disparity, to cause us not to defer to the presumed reasonableness of this bargained sentence, State v. Spinks, 66 N. J. 568 (1975), nor do we perceive any reason to question the discretion of the sentencing judge, State v. Knight, 72 N. J. 193 (1976).

Because the amended sentence was extrajurisdictional and since its imposition casts doubt on the initial sentence, we remand for resentencing.

There are numerous glaring deficiencies and errors in the notice of appeal, some of which were the subject of comment by the trial judge. These are not particularly relevant to the issues we here decide and we will not document them nor comment further with respect to them except to express our dismay with the lack of professional competence which produced them. It would be unfair to neglect to observe they are apparently not the product of counsel who argued this appeal for defendant.