STATE OF NEW JERSEY v. JOSEPH SCHUBERT JR (2011)

Defendant Joseph Schubert, Jr., appeals from the denial of his petition for post-conviction relief (PCR) seeking to vacate an April 30, 2008, amended judgment of conviction imposing community supervision for life (CSL) pursuant to N.J.S.A. 2C:43–6.4. We now reverse the denial of PCR and the post-judgment imposition of CSL, and reinstate the June 23, 2000, judgment of conviction.

I.

Defendant pled guilty on January 28, 2000, to one count of second-degree sexual assault in connection with a crime committed on or about July 1, 1996.   The State agreed to recommend dismissal of the remaining charges, sentencing defendant as a third-degree offender, and an unspecified term of probation.   Defendant signed the one-page sex-offender plea form then in use.   He indicated that he understood that he would be required to undergo an evaluation at the Adult Diagnostic and Treatment Center ¹ and that he would be able to challenge its findings.   He also signed a two-page form entitled “Additional Questions for Certain Sexual Offenses.”   Defendant circled all of the answers “yes,” including the answer to question two asking if he understood that the judge, “in addition to any sentence authorized by the [C]ode[,] will impose a special sentence of [CSL].”

At the plea hearing, the judge questioned defendant's attorney, who stated that he had reviewed the plea forms with his client, witnessed his signatures, and then signed himself as a witness.   He also stated that he spent a great deal of time with defendant going over the various forms.   He stated that he was satisfied that his client understood the charges against him and the nature of the proceedings, adding that, in his opinion, defendant entered into the plea voluntarily.

Defendant was questioned under oath by the judge about the plea forms.   Defendant testified that he signed them, initialed each page, and spent some time with his attorney going over the questions and answers.   He stated that he understood the questions and answered them truthfully.   Furthermore, his attorney answered any questions he had about the proceedings, and he was satisfied with his services.   The judge then questioned defendant with respect to his specific answers to all of the applicable questions on the plea forms, except for question two on the two-page form.   Thus, the record of the plea hearing does not reveal defendant's express understanding, if any, of the required CSL.

At sentencing on June 16, 2000, the judge found aggravating factor nine, N.J.S.A. 2C:44–1a(9), and mitigating factors two, seven, eight, nine, and ten, N.J.S.A. 2C:44–1b(2), (7)-(10).   He found that the mitigating factors clearly outweighed the aggravating factors and that the plea agreement was appropriate.   The judge made no mention of CSL when he imposed sentence.   The judge entered a judgment of conviction on June 23, 2000, and sentenced defendant to three years of probation, required defendant to maintain full-time employment, ordered restitution, and imposed fines and penalties.   The judge did not indicate that he sentenced defendant to CSL, even though the judgment of conviction form contained a place to check off this requirement.

Defendant completed his term of probation and was released on June 18, 2003, without any violations.   The State never moved pursuant to Rule 3:21–10(b)(5) during the term of probation to correct the sentence imposed.

II.

On October 3, 2007, the Parole Board wrote to the sentencing judge and asked him to review defendant's case and advise the Parole Board whether the sentence imposed should have included a special sentence of CSL pursuant to N.J.S.A. 2C:43–6.4a. A copy of that letter was sent to defendant's former attorney, but no copy of the letter was sent to defendant.

On October 22, 2007, the judge wrote to defendant's attorney, noting that he had received a copy of the Parole Board letter.   The judge stated that he agreed with the position taken by the County Prosecutor, who had urged the judge to consider whether CSL should have been imposed.   The judge indicated that, if he did not receive an objection from the attorney by November 1, 2007, he would enter an amended judgment of conviction.   The judge did not send a copy of this letter to defendant.

The trial attorney did not object but, instead, wrote to the judge and advised him that he had not represented defendant for a number of years and was unable to take a position with regard to an amended judgment of conviction.   He asked that notice be given to his client directly.   The record does not disclose any compliance by the State or the judge with this request.   On April 30, 2008, the judge amended the judgment of conviction, without a hearing, to impose a sentence of CSL.

On June 19, 2008, the Parole Board notified defendant of the amended judgment of conviction requiring CSL. He was instructed to report to Red Bank on July 10, 2008, to process the paperwork associated with CSL and was warned that a failure to comply was a fourth-degree crime.   Defendant apparently complied and thereafter retained his trial attorney to file a PCR petition, which defendant verified on April 23, 2009.

At argument on his PCR petition, defendant argued that the court “no longer ha [d] the authority or the jurisdiction or the power to touch that sentence ․ because of the double jeopardy provisions.”   As a result, the judge could not correct even an illegal sentence.   He asserted that defendant believed the penal consequences of his plea had all been completed on June 18, 2003.   He urged that defendant was entitled to an expectation of finality because he had complied in all respects with the sentence imposed.

Defendant also argued that the requirement for CSL was only triggered under the statute in effect in 2000 when a defendant was released from prison or when a suspended sentence was imposed.   It made no mention of probation as a triggering event and, because CSL was a parole term, it could not be imposed on top of a probationary term.

The prosecutor contended that there is never an expectation of finality in an illegal sentence.   Further, the judge's jurisdiction over defendant continued until a legal sentence is imposed, permitting correction of an illegal sentence at any time.   Further, the CSL could not have been imposed until defendant had completed his probationary term because it starts at the end of the sentence imposed, avoiding the conflict between simultaneous parole and probation.

The judge concluded that he had continuing jurisdiction to correct an illegal sentence even after it was completely served.   He further concluded that correction of the illegal sentence did not violate the constitutional prohibition against double jeopardy because the sentence was correctable at any time.   As to defendant's due process rights to notice and an opportunity to be heard, the judge concluded that they were not violated because the procedural defect did not affect the validity of the amended judgment since CSL was statutorily mandated.   Finally, he found that amendment of the judgment was not fundamentally unfair because defendant had answered “yes” to the relevant question on the two-page plea form.   He further found that defendant's lawyer's failure to explain anything more than a registration requirement was not fatal because the question itself was sufficient advice.   Thus, the trial judge denied defendant's petition, and this appeal followed.

III.

Defendant raises the following issues for our consideration:

POINT I—THE AMENDED JUDGMENT OF CONVICTION ENTERED AFTER [DEFENDANT] HAD COMPLETED SERVICE OF HIS SENTENCE VIOLATED [DEFENDANT'S] CONSTITUTIONAL RIGHT TO BE PROTECTED AGAINS[T] DOUBLE JEOPARDY.

POINT II—THE ENTRY OF THE AMENDED JUDGMENT OF CONVICTION IN 2008 CONSTITUTED A VIOLATION OF [DEFENDANT'S] CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW UNDER THE UNITED STATES CONSTITUTION AND THAT OF NEW JERSEY.

POINT III—SINCE [DEFENDANT'S] SENTENCE WAS COMPLETED AND SERVED AS A RESULT OF HIS TERMINATION FROM PROBATION IN 2003, THE COURT LACKED JURISDICTION TO AMEND THE JUDGMENT OF CONVICTION IN 2008.

POINT IV—THE SENTENCE OF PROBATION IMPOSED UPON [DEFENDANT] IN 2000 WAS LAWFUL, AND DID NOT SUBJECT HIM TO THE “PAROLE” PROVISIONS OF N.J.S.A. [2C:43–6.4], AND THE APPLICATION OF THIS STATUTE AS AMENDED IN 2004, FOLLOWING COMPLETE FINALITY OF HIS SENTENCE VIOLATED THE PROHIBITION AGAINST EX POST FACTO LAWS.

Because the issues before us are entirely questions of law, our review of the judge's decision is de novo.  Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995);  State v. Brown, 118 N.J. 595, 604 (1990);  State v. Sailor, 355 N.J.Super. 315, 320 (App.Div.2001).

IV.

We begin with defendant's last point on appeal, because if he is correct, we will not be required to consider the other issues.   CSL was adopted by the Legislature in 1994, to be effective October 31, 1994.  L. 1994, c. 130, §§ 2, 7. It clearly applies to the offense of which defendant was convicted.   L. 1994, c. 130, § 2. For defendant's crime and similar crimes, it mandates that judges imposing sentence “shall include, in addition to any sentence authorized by this Code, a special sentence of [CSL].” Ibid.

The special sentence of community supervision required by this section shall commence upon completion of the sentence imposed pursuant to other applicable provisions of the Code of Criminal Justice.   Persons serving a special sentence of community supervision shall be supervised as if on parole and subject to conditions appropriate to protect the public and foster rehabilitation.

[Ibid.]

This was also the statute as it existed when defendant was originally sentenced,² apparently making his sentence illegal.

Defendant urges that his sentence was nonetheless lawful because a sentence of probation is distinct from a suspended sentence of incarceration for a definite term.  State v. Cullen, 351 N.J.Super. 505, 507–08 (App.Div.2002).   Compare N.J.S.A. 2C:43–2b, with –2b(2).   Further, he contends that CSL only applied to defendants who have been incarcerated or had their sentences suspended, not ones who were on probation.   We disagree.

This argument rests on language in the 2003 amendments to the statute, L. 2003, c. 267, which do not apply to defendant.   See N.J.S.A. 1:1–15 (providing that “no ․ penalty ․ incurred, previous to the time of the ․ alteration of any act ․ by the enactment of the Revised Statutes ․ shall be ․ affected by the ․ alteration of the statute under which such ․ penalty ․ was incurred”);  State v. Parolin, 171 N.J. 223, 233 (2002) (holding that there is a “presumption that criminal legislation is to have prospective effect”);  State v. Chambers, 377 N.J.Super. 365, 372 (App.Div.2005) (holding that “N.J.S.A. 1:1–15 expressly prohibits the retroactive application of a statutory amendment reducing a criminal penalty unless the amendment contains a declaration that it shall apply retroactively”);  see also N.J.A.C. 10A:71–6.11(a) (stating “[p]ursuant to [N.J.S.A.] 2C:43–6.4(a), any enumerated offense committed prior to January 14, 2004, a court imposing sentence on a person who has been convicted of ․ sexual assault ․ shall include, in addition to any sentence authorized by the Code of Criminal Justice ․, a special sentence of [CSL]”).

Nothing in the language of the statute as it was first enacted in 1994 prohibited CSL after a term of probation, which is a “sentence imposed pursuant to other applicable provisions of the Code.” L. 1994, c. 130, § 2. Thus, defendant's sentence was illegal at the time it was imposed, and the prohibition on ex post facto laws does not apply because CSL was required under the 1994 version of the act.

V.

As to the double-jeopardy issue, we acknowledge, as does defendant, that Rule 3:21–10(b)(5) provides, where the sentence imposed is not authorized by law, the sentence may be corrected at any time.   However, that rule is not determinative because our Supreme Court in 1957 held that the forerunner of this rule “was not designed to authorize an enlargement of the punishment after the [illegal] sentence imposed had been satisfied and the defendant discharged.   The rule is necessarily to be assessed in the context of the basic civil rights of the defendant.”  State v. Laird, 25 N.J. 298, 307 (1957) (emphasis added).   Thus, we examine defendant's basic constitutional rights to determine whether this sentence could be corrected five years after it was completely served.   In doing so, we note that CSL is a severe penal sanction and not some remedial measure.  State v. Jamgochian, 363 N.J.Super. 220, 224 (App.Div.2003).

Defendant argues that this late amendment of his sentence, when the parties had never appealed and the State had never moved to correct the original sentence, was a violation of the Double Jeopardy Clauses of the federal and state constitutions.   U.S. Const. amend.   V;  N.J. Const. art.   I, ¶ 11.

The constitutional guarantee against double jeopardy “protect[s] an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.”  United States v. DiFrancesco, 449 U.S. 117, 127, 101 S.Ct. 426, 432, 66 L. Ed.2d 328, 339 (1980).   It also “protects against multiple punishments for the same offense.”  North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L. Ed.2d 656, 665 (1969).   But it does not accord finality to a sentence once pronounced.  DiFrancesco, supra, 449 U.S. at 132, 101 S.Ct. at 435, 66 L. Ed.2d at 343.   This is so because “[t]here are ․ fundamental distinctions between a sentence and an acquittal.”  Id. at 133, 101 S.Ct. at 435, 66 L. Ed.2d at 343.

“[T]he touchstone of the double jeopardy analysis lies in the expectation of finality that a defendant vests in his sentence.”  State v. Sanders, 107 N.J. 609, 619 (1987).   There is no constitutional bar to imposition of a higher sentence after a successful appeal by defendant requiring a retrial, Pearce, supra, 395 U.S. at 720, 89 S.Ct. at 2078, 23 L. Ed.2d at 666, as a defendant cannot expect finality in such a case.  State v. Haliski, 140 N.J. 1, 21 (1995) (“[A] defendant who appeals his substantive conviction along with the corresponding sentence has no legitimate expectation of finality in either the underlying conviction or the corresponding sentence.”).   Neither is there a bar to imposition of a higher sentence after review at the State's behest of the sentence originally imposed.  DiFrancesco, supra, 449 U.S. at 136, 101 S.Ct. at 437, 66 L. Ed.2d at 345.   Thus, where a “sentence is subject to appeal [,] ․ there can be no expectation of finality in the original sentence.”   Id. at 139, 101 S.Ct. at 438, 66 L. Ed.2d at 347.

Generally, jeopardy attaches once a defendant commences serving a term of imprisonment.  State v. Ryan, 86 N.J. 1, 10, cert. denied, 454 U.S. 880, 102 S.Ct. 363, 70 L. Ed.2d 190 (1981)․  However, if the original sentence imposed upon a defendant is illegal,[3] the sentence may be corrected at any time, even if this requires an increase in the term of imprisonment.   Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L. Ed. 818 (1947);  State v. Kirk, 243 N.J.Super. 636, 641–45 (App.Div.1990);  State v. Sheppard, 125 N.J.Super. 332, 336 (App.Div.), certif. denied, 64 N.J. 318 (1973).

[State v. Baker, 270 N.J.Super. 55, 72 (App.Div.), aff'd o.b., 138 N.J. 89 (1994).]

Judge Skillman, writing for the court in Baker, observed that federal precedents did not suggest any specific limits to judicial authority to correct an illegal sentence.  Id. at 74.   Noting Laird 's outer limits on correcting a sentence completely served when the defendant had been discharged, we declined to read that mandate expansively to prohibit correction before that point in time so as not to frustrate a legislative directive for a mandatory period of parole ineligibility.  Id. at 75–76.   Observing that “even if [the] defendant had a subjective expectation of the finality of his original sentence, it would not be a ‘legitimate’ expectation entitled to protection under the Double Jeopardy Clauses of the State and Federal Constitutions because it would be inconsistent with the statutorily mandated minimum sentence,” id. at 77, we also concluded that the “defendant's own appeal prevented his convictions and sentences from being invested with finality.”   Ibid.

The outer limits of Laird have been echoed in other decisions.   See, e.g., State v. Austin, 335 N.J.Super. 486, 494 (App.Div.2000) (finding that “[a]n illegal sentence that has not been completely served may be corrected at any time without impinging upon double-jeopardy principles” (emphasis added)), certif. denied, 168 N.J. 294 (2001);  State v. Swint, 328 N.J.Super. 236, 263 (App.Div.) (noting that “an illegal sentence may be corrected before it is completed or served ” (emphasis added)), certif. denied, 165 N.J. 492 (2000);  Kirk, supra, 243 N.J.Super. at 643 (noting that “so long as the issue of defendant's sentence is properly before the court, the court may correct an illegal sentence, even by increasing the term” (emphasis added));  State v. Rhoda, 206 N.J.Super. 584, 593 (App.Div.) (noting that illegal sentences “may be corrected before they are completed or served ” (emphasis added)), certif. denied, 105 N.J. 524 (1986);  Sheppard, supra, 125 N.J.Super. at 338 (finding that “no consideration ․ would argue against the right of the State to vindicate a statutory sentencing policy by pursuing timely appellate review of an illegal sentence” (emphasis added)).   Nevertheless, “the court's authority in correcting sentences is limited and must be sparingly exercised.”  State v. Eigenmann, 280 N.J.Super. 331, 346 (App.Div.1995).

Intervening limits exist as well.   In Tavares, supra, 286 N.J.Super. 610, the defendant's sentence was illegal because the sentencing judge made a procedural error in not conducting new sentencing proceedings upon remand.   Id. at 616, 619.   However, the prosecutor waited “for four months after learning of the irregularity while [the] defendant was serving his sentence” before seeking correction.  Id. at 619.   We concluded that

[w]hile an “illegal” sentence is “correctable at any time,” the State has an obligation to move quickly when asserting an “illegality” because the defendant has an expectation of finality of a sentence within the parameters of statutory limits (at least in the absence of some appeal or post-conviction proceeding pending on his or her application).

[Ibid.]

Thus, the four-month delay by the prosecution barred modification of the sentence, even though defendant had not completed his sentence.  Ibid.

Nonetheless, we noted that a different result might follow if a sentence's illegality was due to noncompliance with statutory requirements:

In concluding that the State's application was untimely, we emphasize the nature of the ‘illegality’ asserted.   Here, there is no contention that the right of the defendant to allocution or the right of the victims to be heard were not recognized at the initial sentencing.   Moreover, the State does not contend that the sentence was unauthorized by the governing statute or even violated the negotiated plea agreement.   Accordingly, we need not address what action a court can take on the prosecutor's application, or sua sponte, whenever it learns that the sentence does not conform with the minimum requirements of the governing statute.

[Id. at 619–20 (citations omitted).]

Of course, we must address what the panel in Taveras was not required to decide and, in doing so, we must resolve the tension between the legislative mandate requiring imposition of CSL and the Double Jeopardy Clause.   In State v. Horton, 331 N.J.Super. 92, 94 (App.Div.2000), the defendant pled guilty to endangering the welfare of a child;  he was sentenced, in part, to serve 180 days on weekends in the county jail and to two years probation.   Id. at 95.   He completed all jail time in 1995, but his probation continued into 1998.  Ibid.

In 1997, the State Parole Board first requested that the court “ ‘advise whether the sentence imposed ․ was required to include a special sentence of [CSL] pursuant to N.J.S.A. 2C:43–6.4’ because [the] defendant had committed his sexual offense after ․ the effective date of that statute.”  Id. at 95–96 (footnote omitted).   Later that year, while the defendant was still on probation, “the prosecutor moved to amend [the] defendant's judgment of conviction ‘to reflect the imposition of [CSL].’ ” Id. at 96.   Ultimately, the sentencing judge amended the judgment of conviction in 1999, ibid., which was subsequent to the defendant's completion of two years probation, id. at 95.

The defendant argued that imposing a term of lifetime parole eighteen months after the entry of his original sentence violated double jeopardy.  Id. at 96–97.   After reviewing federal and state cases, and distinguishing Tavares, supra, 286 N.J.Super. 610, we disagreed and held that “re-sentencing [the] defendant to impose [CSL] does not offend either the constitutional prohibitions against double jeopardy or any considerations of fundamental fairness generated by the lapse of time.”  Id. at 102.   Here, however, no attempt was made to correct defendant's sentence while he was still on probation, which would have interrupted his expectation of finality in his sentence.

In Baker and Horton, a defendant's sentence was corrected after he had begun serving it only when (1) he had not already completed his sentence, inclusive of probation, see Baker, supra, 270 N.J.Super. at 72, or (2) the State sought correction prior to the completion of the original sentence,⁴ ,⁵ see Horton, supra, 331 N.J.Super. at 95–96.   Here, the State had at no time during defendant's original sentence sought correction, and defendant completely served his sentence almost four and a half years prior to any attempt to correct it.   His sentence was corrected approximately eight years after entry of the original judgment of conviction.

We have identified no controlling case in New Jersey where a defendant's sentence has been amended subsequent to its completion with facts analogous to the present matter.   However, we find a recent New York Court of Appeals case persuasive.

In People v. Williams, 925 N.E.2d 878, 884–85, cert. denied, _ U.S. 125, 131 S.Ct. 125, 178 L. Ed.2d 242 (2010), the Court of Appeals of New York considered five cases on appeal, and addressed in part “whether there are ․ constitutional impediments to imposing postrelease supervision [PRS ⁶ ] at resentencing on defendants who have completed their terms of imprisonment and been released into the community.”  Id. at 881.   The Court considered federal precedent pertaining to double jeopardy and restrictions on correcting illegal sentences and found that

there must be a temporal limitation on a court's ability to resentence a defendant since criminal courts do not have perpetual jurisdiction over all persons who were once sentenced for criminal acts.   Even where a defendant's sentence is illegal, there is a legitimate expectation of finality once the initial sentence has been served and the direct appeal has been completed (or the time to appeal has expired).

[Id. at 890 (citation omitted).]

The facts that the “defendants were released from prison after serving less than the entire term of their determinate sentences and the records in [their] cases reveal[ed] that some of [them] did sign documents pertaining to PRS before their release” did not change the Court's analysis.  Ibid. The Court held that

once a defendant is released from custody and returns to the community after serving the period of incarceration that was ordered by the sentencing court, and the time to appeal the sentence has expired or the appeal has been finally determined, there is a legitimate expectation that the sentence, although illegal under the Penal Law, is final and the Double Jeopardy Clause prevents a court from modifying the sentence to include a period of [PRS].

[Id. at 891.]

See also People v. Washington, 867 N.Y.S.2d 855, 857–58 (Sup.Ct.2008) (“The defendant's expectation of finality arises not only because she completed the entire originally imposed sentence 18 months ago, but because the People's statutory right to move to resentence her ․ expired ․ one year after she was sentenced and almost seven years ago[.]” (citation omitted)).

Here, the matter is analogous to Williams in that the time for the State to appeal had expired, and defendant had completed his sentence before the amendment of his judgment of conviction and been released into the community.   We recognize the salutary purposes of CSL, but we cannot enforce a legislative mandate where to do so would place defendant in jeopardy of being sentenced twice.   Although he certainly was aware at his plea that he was subject to something called CSL, the State slept on its rights for a long period of time, during which defendant's expectation of finality arose.   As a result, we need not consider the other issues raised on appeal.

The amendment judgment of conviction is reversed and the matter is remanded for reentry of the June 23, 2000, judgment of conviction without CSL.

FOOTNOTES

FN1. This evaluation concluded that defendant was not a compulsive or repetitive offender..  FN1. This evaluation concluded that defendant was not a compulsive or repetitive offender.

FN2. Subsequently, the statute was completely rewritten in 2003, effective January 14, 2004, L. 2003, c. 267, §§ 1, 6, to require mandatory parole supervision for life.   However, the amendments do not apply to defendant because his crime was committed before this amendment.  N.J.A.C. 10A:71–6.11(a).   The amendments also prohibited a sentence of probation.  L. 2003, c. 267, § 5..  FN2. Subsequently, the statute was completely rewritten in 2003, effective January 14, 2004, L. 2003, c. 267, §§ 1, 6, to require mandatory parole supervision for life.   However, the amendments do not apply to defendant because his crime was committed before this amendment.  N.J.A.C. 10A:71–6.11(a).   The amendments also prohibited a sentence of probation.  L. 2003, c. 267, § 5.

FN3. Courts have “refer[red] to an ‘illegal’ sentence in terms of one which is not consistent with the dictates of the controlling statute, although a defendant can also challenge a sentence because it was imposed without regard to some constitutional safeguard or procedural requirement.”  State v. Tavares, 286 N.J.Super. 610, 618 (App.Div.), certif. denied, 144 N.J. 376 (1996)..  FN3. Courts have “refer[red] to an ‘illegal’ sentence in terms of one which is not consistent with the dictates of the controlling statute, although a defendant can also challenge a sentence because it was imposed without regard to some constitutional safeguard or procedural requirement.”  State v. Tavares, 286 N.J.Super. 610, 618 (App.Div.), certif. denied, 144 N.J. 376 (1996).

FN4. In Horton, supra, 331 N.J.Super. at 100 n.5, the court cited three federal cases “holding that a defendant's having fully served an illegal sentence does not bar the Government's appeal and the imposition of a more onerous, legal sentence.”   However, each is factually distinguishable from the present matter.   See United States v. McClain, 133 F.3d 1191, 1194 (9th Cir.) (finding that “when a defendant is convicted of both an underlying offense and [18 U.S.C.A.] § 924(c), he reasonably cannot have a legitimate expectation of finality in a portion of the total sentence, even if he has fully served that portion”), cert. denied, 524 U.S. 960, 118 S.Ct. 2386, 141 L. Ed.2d 752 (1998);  United States v. Edmonson, 792 F.2d 1492, 1496–97 (9th Cir.1986) (finding that the government had a right to appeal “void” sentences pursuant to 18 [U.S.C.A.] § 3731 even though the appellees had already served all or part of their original sentences), cert. denied, 479 U.S. 1037, 107 S.Ct. 892, 93 L. Ed.2d 844 (1987);  Llerena v. United States, 508 F.2d 78, 79–82 (5th Cir.1975) (permitting correction of an illegal sentence in case where the defendant was still serving his sentence during the court's first attempt to correct it)..  FN4. In Horton, supra, 331 N.J.Super. at 100 n.5, the court cited three federal cases “holding that a defendant's having fully served an illegal sentence does not bar the Government's appeal and the imposition of a more onerous, legal sentence.”   However, each is factually distinguishable from the present matter.   See United States v. McClain, 133 F.3d 1191, 1194 (9th Cir.) (finding that “when a defendant is convicted of both an underlying offense and [18 U.S.C.A.] § 924(c), he reasonably cannot have a legitimate expectation of finality in a portion of the total sentence, even if he has fully served that portion”), cert. denied, 524 U.S. 960, 118 S.Ct. 2386, 141 L. Ed.2d 752 (1998);  United States v. Edmonson, 792 F.2d 1492, 1496–97 (9th Cir.1986) (finding that the government had a right to appeal “void” sentences pursuant to 18 [U.S.C.A.] § 3731 even though the appellees had already served all or part of their original sentences), cert. denied, 479 U.S. 1037, 107 S.Ct. 892, 93 L. Ed.2d 844 (1987);  Llerena v. United States, 508 F.2d 78, 79–82 (5th Cir.1975) (permitting correction of an illegal sentence in case where the defendant was still serving his sentence during the court's first attempt to correct it).

FN5. The State relies on one of our unpublished opinions on virtually identical facts to those found here.   We may not cite such a case, Rule 1:36–3, and do not consider it persuasive..  FN5. The State relies on one of our unpublished opinions on virtually identical facts to those found here.   We may not cite such a case, Rule 1:36–3, and do not consider it persuasive.

FN6. PRS is similar to CSL because it “is a mandatory component of all determinate prison sentences[, and] ․ a sentencing court's failure to pronounce [PRS] during sentencing proceedings results in an illegal sentence that cannot be administratively corrected by the Department of Correctional Services.”  Id. at 881..  FN6. PRS is similar to CSL because it “is a mandatory component of all determinate prison sentences[, and] ․ a sentencing court's failure to pronounce [PRS] during sentencing proceedings results in an illegal sentence that cannot be administratively corrected by the Department of Correctional Services.”  Id. at 881.

PER CURIAM