STATE OF NEW JERSEY v. RODNEY BULL

There is no question that defendant’s second extended-term

sentence would be illegal under Hudson: it fits foursquare

within the statutory prohibition, as the State concedes. The

only question before us, therefore, is whether Hudson should be

applied retroactively.

We find that Hudson illuminated a longstanding rule of law

rather than announce a new one. We accordingly affirm the

Appellate Division’s determination that Hudson applies

retroactively as consistent with our well-established

retroactivity jurisprudence.

I.

Defendant was tried and convicted for a series of crimes

that occurred within ten days of each other. He was charged in

two separate indictments that involved two robberies on separate

days, each of which affected one victim.

The second indictment (indictment 1896) charged defendant

with several crimes committed on April 20, 1990: first-degree

robbery, N.J.S.A. 2C:15-1(b); third-degree terroristic threats,

N.J.S.A. 2C:12-3(b); second-degree aggravated assault, N.J.S.A.

2C:12-1(b)(1); first-degree attempted murder, N.J.S.A. 2C:5-1

and N.J.S.A. 2C:11-3(b); fourth-degree unlawful possession of a





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weapon, N.J.S.A. 2C:39-5(d); and third-degree possession of a

weapon for unlawful purposes, N.J.S.A. 2C:39-4(d).

The first indictment (indictment 1263) charged defendant

with crimes that occurred on April 30, 1990: first-degree

robbery, N.J.S.A. 2C:15-1(b); second-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(1); third-degree aggravated criminal sexual

contact, N.J.S.A. 2C:14-3(a); fourth-degree unlawful possession

of a weapon, N.J.S.A. 2C:39-5(d); third-degree possession of a

weapon for unlawful purposes, N.J.S.A. 2C:39-4(d); and third

degree terroristic threats, N.J.S.A. 2C:12-3(b).

In March 1991, a jury found defendant guilty of all counts

of indictment 1896 except attempted murder. In May 1991, the

trial court sentenced defendant to a discretionary extended term

of fifty years (the first extended term) with eighteen years of

parole ineligibility pursuant to N.J.S.A. 2C:44-3.

On indictment 1263, a jury acquitted defendant of the

robbery and sexual misconduct charges but found defendant guilty

of all other counts in June 1992. In October 1992, the trial

court sentenced defendant to a discretionary extended term of

twenty years (the second extended term), with ten years of

parole ineligibility on the aggravated assault conviction. The

sentence for unlawful possession of a weapon ran concurrently to

the aggravated assault term, but defendant received a

consecutive term of five years for the terroristic threats





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conviction. Defendant’s sentence on the second conviction for

indictment 1263 thus totaled twenty-five years, with ten years

of parole ineligibility. The aggregate of defendant’s

convictions resulted in a total sentence of seventy-five years,

with twenty-eight years of parole ineligibility.

In 2012, defendant filed a motion to correct an illegal

sentence, arguing that the imposition of two discretionary

extended-term sentences constituted an illegal sentence under

Hudson. The trial court denied that motion as well as

defendant’s motion for reconsideration.

The Appellate Division found that Hudson did not articulate

a new rule of law and therefore found a retroactivity analysis

unnecessary. In an unpublished opinion, the panel applied the

plain language of N.J.S.A. 2C:44-5(b)(1), vacated the second

extended term as an illegal sentence, and remanded for

resentencing. We granted the State’s petition for

certification. State v. Bull, 224 N.J. 124 (2016).

II.

The State recognizes that defendant would have prevailed on

his appeal had the appeal arisen after Hudson because the facts

indisputably confirm the seconded extended term to be an illegal

sentence. The State disputes only the retroactive application

of Hudson’s holding to defendant, asserting that Hudson created





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a new rule of law and that new rules generally are applied

prospectively.

The State contends that the Appellate Division improperly

extended the holding in Hudson retroactively because Hudson

“broke new ground in interpreting N.J.S.A. 2C:44-5(b)(1).”

The State argues that all three factors of this Court’s test to

determine whether a new rule should be given retroactive effect

favor limiting Hudson’s holding to prospective application:

first, Hudson’s purpose would not be undermined by limiting the

rule to prospective effect because defendant’s sentence was

legal when imposed; second, there was substantial reliance on

pre-Hudson interpretations of N.J.S.A. 2C:44-5 because no

contrary law existed; third, retroactive application of the rule

set forth in Hudson would “wreak havoc” on the administration of

justice by jeopardizing the finality of judgment in many cases.

Defendant disputes the “new rule” conclusion underpinning

the State’s argument. Defendant argues instead that Hudson did

not create a new rule of law and that the decision merely

implemented the pre-existing legislative decree by interpreting

a statute that has always been part of the sentencing code. In

support of that position, defendant emphasizes this Court’s

description of the statutory language in Hudson as plain,

unambiguous, and straightforward. Although defendant finds that

the three-factor retroactivity analysis is unnecessary here,





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defendant nevertheless asserts the factors, on balance, weigh in

favor of retroactivity because it would serve the underlying

purpose of the rule -- to establish legal sentences.

III.

Under Rule 3:21-10(b)(5), “a motion may be filed and an

order may be entered at any time” to correct an illegal

sentence. Because defendant’s sentence would manifestly violate

N.J.S.A. 2C:44-5(b)(1) if imposed today, our task is to

determine whether our illumination of that statute in Hudson

applies retroactively to defendant’s twenty-four-year-old

sentence.

The threshold question in a retroactivity analysis is

whether a new rule of law has been announced. State v. Feal,

194 N.J. 293, 307 (2008) (citing State v. Colbert, 190 N.J. 14,

22 (2007); State v. Molina, 187 N.J. 531, 542-43 (2006); State

v. Cummings, 184 N.J. 84, 96-97 (2005)).

A new rule of law exists when: (1) there is a “sudden and

generally unanticipated repudiation of a long-standing

practice,” State v. Purnell, 161 N.J. 44, 53 (1999) (quoting

State v. Afanador, 151 N.J. 41, 58 (1997)); (2) when the rule

“breaks new ground or imposes a new obligation on the States or

the Federal Government[;] . . . [or (3) when] the result was not

dictated by precedent existing at the time the defendant’s

conviction became final,” State v. Lark, 117 N.J. 331, 339





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(1989) (quoting Teague v. Lane, 489 U.S. 288, 301, 109 S. Ct.

1060, 1069, 103 L. Ed. 2d 334, 349, reh’g denied, 490 U.S. 1031,

109 S. Ct. 1771, 104 L. Ed. 2d 206 (1989)).

When the Court finds that the language of a statute is

plain, that conclusion does not constitute a new rule of law

unless the statutory interpretation departs from our own

precedent. See Afanador, supra, 151 N.J. at 57-59 (holding that

Court’s interpretation of jury instruction to make implicit

elements of crime explicit does not constitute new rule of law).

If we find that a new rule has been created, we apply a

three-factor test to determine whether that new rule should be

applied retroactively. See, e.g., Feal, supra, 194 N.J. at 308.

When a decision does not constitute a new rule, however, the

retroactivity analysis ends. Ibid.

IV.

A.

N.J.S.A. 2C:44-5 is one of several statutes within our

comprehensive statutory sentencing scheme. The Legislature has

specified that one of the overarching objectives of our

statutory sentencing scheme is “[t]o give fair warning of the

nature of the sentences that may be imposed on conviction of an

offense.” N.J.S.A. 2C:1-2(b)(5).

Toward that end, N.J.S.A 2C:44-5 provides direction for

courts to follow when ordering multiple sentences:





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a. Sentences of imprisonment for more than one offense. When multiple sentences of imprisonment are imposed on a defendant for more than one offense, including an offense for which a previous suspended sentence or sentence of probation has been revoked, such multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence, except that:

. . .

(2) Not more than one sentence for an extended term shall be imposed.

[N.J.S.A. 2C:44-5(a).]

Subsection b is entitled “Sentences of imprisonment imposed at

different times” and states, in pertinent part, that

[w]hen a defendant who has previously been sentenced to imprisonment is subsequently sentenced to another term for an offense committed prior to the former sentence, other than an offense committed while in custody:

(1) The multiple sentences imposed shall so far as possible conform to subsection a. of this section[.]

[N.J.S.A. 2C:44-5(b).]

In Hudson, supra, this Court addressed the meaning of

subsection b:

Subsection b’s plain language applies subsection a’s bar against imposing a sentence comprised of more than one extended term for the conviction of an offense which was committed prior to the imposition of the defendant’s current extended-term sentence but for which defendant is being sentenced after the imposition of the first extended sentence.

[209 N.J. at 517 (emphasis added).]





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In addressing the “so far as possible” qualifier in subsection

(b)(1), we rejected the view that this phrase meant subsection

b’s incorporation of subsection a was discretionary. Id. at

517-18. Instead, we interpreted “so far as possible” to mean

that the prohibition against multiple extended-term sentences is

the default. Id. at 534. 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.

Id. at 535. Thus, Hudson stands for the proposition that, under

N.J.S.A. 2C:44-5(b), the imposition of a second extended term

for offenses committed prior to the imposition of a first

extended-term sentence is illegal unless unavoidable. See id.

B.

In order to determine whether Hudson constitutes a new rule

of law, we review pre-Hudson jurisprudence surrounding N.J.S.A.

2C:44-5. The State cites two Appellate Division decisions for

the proposition that Hudson represented a new rule: State v.

Reldan, 231 N.J. Super. 232 (App. Div. 1989), certif. denied,

121 N.J. 598 (1990), and State v. Williams, 299 N.J. Super. 264

(App. Div. 1997). Neither case interprets subsection b or

implicates its prohibition.

In Reldan, supra, 231 N.J. Super. at 236, the defendant was

incarcerated for conspiracy to commit murder. While

incarcerated, the defendant attempted an escape. Id. at 234.





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He pled guilty to conspiracy to commit escape and possession of

a weapon for an unlawful purpose. Ibid. The defendant’s

attempted-escape and weapon-possession offenses clearly were not

committed before imposition of the first sentence; rather, they

were committed while the defendant was serving his first

sentence. The Appellate Division cited only subsection a of

N.J.S.A. 2C:44-5. Id. at 238. Subsection b was not implicated

by the facts of the case.

Similarly, in Williams, supra, 299 N.J. Super. at 267, the

defendant was convicted and sentenced on multiple counts of

burglary and theft. A little over a year after his conviction,

the defendant was again arrested for burglary and theft while on

probation. Id. at 268. Nowhere in the opinion is there a

discussion of subsection b. Rather, the Appellate Division in

Williams relied on the reasoning in Reldan and its analysis of

subsection a. Id. at 272-73.

Neither of those cases, nor any others, suggest that Hudson

articulated a new rule of law. Hudson was a case of first

impression for this Court. Because no precedent on subsection b

existed, precedent did not dictate an opposite result. Hudson

did not espouse a new rule of law because it did not suddenly

repudiate a longstanding principle. Hudson neither broke new

ground, nor imposed a new obligation on the State. See Lark,

supra, 117 N.J. at 339.





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In Hudson, we simply discerned the meaning of the statute

from its plain language. When the plain language of the statute

itself answers the interpretive question posed by a case, saying

so does not constitute a new rule of law. Afanador, supra, 151

N.J. at 57. 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, we need not delve any further into

the depths of retroactivity analysis. Rather, we analyze

defendant’s sentence under the rule espoused in N.J.S.A. 2C:44

5(b)(1) since the statute’s enactment.

We agree 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 us, that is the sentence that the

trial court should revisit. 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. State v. Robinson, 217 N.J. 594, 611

(2014).



In sum, Hudson did not create a new rule; it merely

illuminated an old one. Hudson’s illumination of N.J.S.A.

2C:44-5(b) applies to this pre-Hudson case, and defendant must

receive a new, legal sentence.