State v. Pierce

¶1dissenting in part and concurring in part.

¶2A jury found defendant guilty of first-degree armed robbery and other crimes. The jury’s verdict on the robbery charge authorized a maximum sentence of twenty years in state prison. Because defendant had at least two prior convictions, the sentencing judge had the discretion to impose an extended term of twenty years to life on the robbery charge, but only if he made a finding that an extended term was warranted for “the protection of the public.” See State v. Dunbar, 108 N.J. 80, 527 A.2d 1346 (1987). Without that finding, the judge was bound to sentence defendant within the range authorized by the jury’s verdict — ten to twenty years. Based on his finding that “the protection of the public” required the imposition of an extended term, the judge sentenced defendant to a forty-year term, a sentence double that authorized by the jury’s verdict.

¶3The United States Supreme Court has made clear that the Sixth Amendment jury trial guarantee prohibits a judge from imposing *175a sentence that exceeds the maximum term authorized by the jury’s verdict based on a judicial finding of a fact, “[ojther than the fact of a prior conviction.” Blakely v. Washington, 542 U.S. 296, 301, 124 S.Ct. 2531, 2536, 159 L.Ed.2d 403, 412 (2004); Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435, 455 (2000); see also United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 756, 160 L.Ed.2d 621, 650 (2005). Here, the judge made the finding that the “need to protect public safety” required that defendant serve an extended term, and based on that finding, he imposed a sentence exceeding the statutory maximum authorized by the verdict. That judicial fact-finding patently violated the constitutional standard set forth in Booker, Blakely, and Apprendi, and therefore defendant’s Sixth Amendment right to trial by jury.

¶4To remedy that constitutional violation, the majority does not vacate the sentence and remand to allow a jury to determine whether the “protection of the public” warrants an extended term of up to forty years. Instead, the majority simply removes from the extended term statute the requirement imposed by this Court in State v. Dunbar, supra,108 N.J. at 90-91, 527 A.2d 1346, that a “protection of the public” finding be made before the imposition of an extended term. Having excised that essential element from the extended term statute — an element that existed at the time defendant committed the crime — the majority then remands to a judge to sentence defendant again to a prison term up to twice that authorized by the jury’s verdict. By that after-the-fact amendment to the extended term statute, enlarging the statutory maximum authorized by the jury’s verdict to forty years,1 the majority violates not only defendant’s Sixth Amendment jury trial right, but also the ex post facto provisions of the United States *176and New Jersey Constitutions. Because the illusory victory that the majority hands to defendant contravenes the clear dictates of the Federal Constitution, I respectfully dissent.

¶5I.

¶6A.

¶7In Apprendi, supra,the United States Supreme Court struck down New Jersey’s “hate crime” statute, N.J.S.A. 2C:44-3(e) (repealed 2002), because the statute permitted — based solely on judicial factfinding — imposition of a sentence greater than that authorized by the defendant’s guilty plea or a jury verdict, thus violating the Sixth Amendment jury trial guarantee. See 530 U.S. at 490-92, 120 S.Ct. at 2363-64, 147 L.Ed.2d at 455-56. The extended term statute invalidated in Apprendiis not materially different from the extended term statute before this Court today. New Jersey’s former hate crime statute allowed a judge to sentence a defendant to a term one degree higher than the sentence authorized by a guilty plea or jury verdict if the judge found by a preponderance of the evidence that the defendant committed a crime “‘with a purpose to intimidate an individual or group of individuals’ ” for an invidious reason, such as race. Id. at 468-69, 120 S.Ct. at 2351, 147 L.Ed.2d at 442 (quoting N.J.S.A. 2C:44-3(e) (repealed 2002)).

¶8The defendant in Apprendipled guilty to two counts of second-degree possession of a firearm for an unlawful purpose. Id. at 469-70, 120 S.Ct. at 2352, 147 L.Ed.2d at 442. The second-degree charges carried a potential prison term of five to ten years. Id. at 470, 120 S.Ct. at 2352, 147 L.Ed.2d at 443. The trial judge determined that a preponderance of evidence supported a finding of racial animus and therefore imposed a twelve-year prison term — two years above the statutory maximum for a second-degree crime. Id. at 470-71, 120 S.Ct. at 2352, 147 L.Ed.2d at 443. In invalidating that sentence, the Supreme Court set forth the standard for determining whether a sentence complies with the *177Sixth Amendment: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455. As restated in Blakely, supra,“the [constitutional] ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” 542 U.S. at 303-04, 124 S.Ct. at 2537, 159 L.Ed.2d at 413-14.

¶9B.

¶10In Apprendi, supra,based on a judicial finding of racial animus, the hate crime statute permitted a sentence one degree higher than that authorized by a guilty plea or jury verdict. See 530 U.S. at 468-69, 120 S.Ct. at 2351, 147 L.Ed.2d at 442. In this case, based on a judicial finding of “protection of the public,” the extended term statute, N.J.S.A. 2C:44-3(a), permits a sentence one degree higher than that authorized by a guilty plea or jury verdict. See N.J.S.A. 2C:43-7(a). Viewing the two statutes together, I do not see how N.J.S.A. 2C:44-3(a) is any less offensive to the Sixth Amendment jury trial guarantee than the former hate crime statute. That this Court interpreted N.J.S.A. 2C:44-3(a) to require a “protection of the public” finding as a prerequisite for an extended term does not in any way alter the analysis. That was the applicable law at the time defendant committed his offenses. Moreover, “[i]n deciding the question of what facts must be subject to a jury finding, ‘the relevant inquiry is one not of form, but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?’ ” State v. Natale, 184 N.J. 458, 473, 878 A.2d 724 (2005) (quoting Apprendi, supra,530 U.S. at 494, 120 S.Ct. at 2365, 147 L.Ed.2d at 457). For Sixth Amendment purposes, “protection of the public” is no less a “fact” than “racial animus” if a judge relies on that “fact” to impose a sentence higher than the one authorized by the jury’s verdict.

¶11*178In State v. Dunbar, supra,the Court set the standard for a trial judge’s exercise of discretion when imposing a sentence under the persistent offender, extended term statute, N.J.S.A. 2C:44-3(a). 108 N.J. at 87-91, 527 A.2d 1346. Under that statute, a trial judge “may, on application by the prosecutor, sentence a first-, second-, or third-degree offender to an extended term ... if [he] finds that the defendant is ... a persistent offender.” Id. at 87-88, 527 A.2d 1346. The Court recognized that if a judge determined that a defendant was eligible for an extended term based on prior convictions, he was “not able to look to the Code for an explicit standard by which [he] should exercise [his] discretion to impose the extended sentence.” Id. at 89, 527 A.2d 1346.

¶12To channel the discretion of the judge in a way compatible with the principles of the Code of Criminal Justice, the Court determined that it had to establish a standard to guide sentencing courts. Based primarily on its review of the legislative history of N.J.S.A. 2C:44-3, the Court decided that such an extended term may only be imposed if there is a judicial finding that the sentence is necessary for the protection of the public. Id. at 90-91, 527 A.2d 1346. The Dunbar standard was reaffirmed in State v. Pennington, 154 N.J. 344, 354, 712 A.2d 1133 (1998) (“The standard for determining whether to impose an extended term upon an eligible defendant is whether it is necessary for the protection of the public from future offenses by defendant through deterrence.”).

¶13II.

¶14By excising the protection-of-the-public finding as a prerequisite for the imposition of an extended term sentence under N.J.S.A. 2C:44-3(a), the majority’s decision has judicially enlarged the range of defendant’s sentence authorized by the jury’s verdict and thus is an ex post facto law in violation of both the Federal and State Constitutions. See U.S. Const. art. I, § 10, cl. 1; N.J. Const. art. IV, § 7, ¶ 3. When defendant committed first-degree robbery, before any additional judicial factfinding, the only sen*179tenee authorized by the jury’s verdict was a ten- to twenty-year term. N.J.S.A. 2C:43-6(a)(1). The majority’s decision now authorizes a sentence of ten years to life imprisonment without any additional factfinding. See N.J.S.A. 2C:43-7(a)(2).

¶15If a statute “make[s] more burdensome the punishment for a crime, after its commission,” then it is an unconstitutional ex post facto law. State v. Muhammad, 145 N.J. 23, 56, 678 A.2d 164 (1996) (citing Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 68-69, 70 L.Ed. 216, 217 (1925)). The prohibition is meant to ensure that individuals receive “fair warning” of the penal effect of legislative enactments. Weaver v. Graham, 450 U.S. 24, 28-29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17, 23 (1981).

¶16To qualify as ex post facto, a law “must apply to events occurring before its enactment” and “must be more onerous than the prior law.” State v. Natale, supra,184 N.J. at 491, 878 A.2d 724 (internal quotation marks omitted). Ex post facto violations are not restricted to legislative enactments, but may also result from judicial actions. Rogers v. Tennessee, 532 U.S. 451, 456-57, 121 S.Ct. 1693, 1697-98, 149 L.Ed.2d 697, 704-05 (2001). Retroactive judicial enlargement of a criminal statute’s application can violate the prohibition when it is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.” Id. at 457, 121 S.Ct. at 1698, 149 L.Ed.2d at 705 (internal quotation marks omitted).

¶17By eliminating the Dunbarstandard as an essential element of the sentencing determination under N.J.S.A. 2C:44-3(a), the Court has judicially enlarged defendant’s sentencing range — imposing a totally new statutory maximum authorized by the jury’s verdict that did not exist at the time he committed the robbery. See Collins v. Youngblood, 497 U.S. 37, 44, 110 S.Ct. 2715, 2720, 111 L.Ed.2d 30, 40 (1990) (stating that ex post facto prohibition applies to enhancement of penalty for crime). The trial court imposed an extended sentence on defendant “[biased upon the defendant’s prior record and the need to protect public safety.” Now, with the protection of the public factor gone, and based solely on the *180judicial finding of past convictions, the new statutory maximum for defendant is a forty-year sentence. The Court’s modification of the statute “make[s] more burdensome the punishment for a crime, after its commission,” and thus operates as an ex post facto law. See Muhammad, supra,145 N.J. at 56, 678 A.2d 164. Moreover, this change in the law was “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.” See Rogers, supra, 532 U.S. at 457, 121 S.Ct. at 1698, 149 L.Ed.2d at 705 (internal quotation marks omitted); see also State v. Martin, 110 N.J. 10, 15, 538 A.2d 1229 (1988) (describing “drastic consequences” of imposition of extended term that had potential of doubling maximum sentence that could be imposed on defendant).

¶18In Natale, supra,this Court eliminated the presumptive sentencing terms. 184 N.J. at 487, 878 A.2d 724. The NataleCourt further held that elimination of the presumptive sentencing terms could “hardly be characterized as ‘unexpected’ or ‘indefensible’ in light of’ Apprendiand its progeny. Id. at 491-92, 878 A.2d 724. The NataleCourt’s elimination of presumptive sentencing is far different than the judicial alteration made in this case. Before the Apprendiline of cases, every defendant knew that the sentencing range for armed robbery was ten to twenty years based on a judge’s weighing of the sentencing factors, and that if he had two prior convictions a judge first had to make a “protection of the public” finding to justify increasing the sentencing range up to life imprisonment. See id. at 492, 878 A.2d 724. Here, unlike in Natale, the majority removes from the law applicable when defendant committed the offense an essential fact that had to be established before defendant could be sentenced to an extended term. The Court’s determination to eliminate that fact requirement as a precondition to establishing the top of the sentencing range can be viewed as “unexpected” and not defensible based on our prior ease law.

¶19Accordingly, the decision issued today should not be applied to defendant. Defendant was sentenced under the Dunbarstandard, *181which applied at the time he committed his offenses. He should be resentenced under that standard and receive an extended term only if a jury determines that an extended sentence is necessary for the “protection of the public.” That remedy will comport not only with the Sixth Amendment right to trial by jury, but also the constitutional prohibition against ex post facto laws.

¶20III.

¶21Despite its characterization to the contrary, the majority has transformed a discretionary extended term statute, N.J.S.A. 2C:44-3(a), into something akin to the mandatory extended term drug statute, N.J.S.A. 2C:43-6(f), which the Court found did not offend the Sixth Amendment in State v. Thomas, 188 N.J. 139, 902 A.2d 1185 (2006). See ante 188 N.J. at 169-70, 902 A.2d at 1204-05. Once the sentencing judge determines that a defendant has committed the predicate crimes enumerated under N.J.S.A. 2C:44-3(a), the sentencing range automatically extends one degree higher. See N.J.S.A. 2C:43-7(a).

¶22Converting a discretionary sentencing scheme into a mandatory one is a drastic alteration of the extended term statute. I concur, however, in the majority’s remedy, provided it is applied prospectively. Prospective application will not give rise to an ex post facto claim. I concur because “[i]t is our task to conform the Code to the Constitution in a way that the Legislature would have intended.” Natale, supra,184 N.J. at 485, 878 A.2d 724. In crafting a remedy in Natale, we stated that “the Legislature would not have wanted us to substitute jurors for judges as the factfinders determining the applicability of aggravating sentencing factors.” Id. at 486, 878 A.2d 724. The same reasoning applies to extended term sentencing. In light of the “strong judicial role in sentencing,” State v. Roth, 95 N.J. 334, 352, 471 A.2d 370 (1984), the Legislature never intended to substitute juries for judges in making a determination whether the protection of the public required an extended term. The prospective application of the majority’s remedy comports with the Sixth Amendment and will *182leave intact the legislative goal of uniform sentencing under the Code. The remedy chosen not only complies with the dictates of Blakely, Booker, and Apprendi, but also best achieves the Legislature’s purpose in enacting the Code.

¶23IV.

¶24Because I believe that the majority’s remedy as applied to defendant violates both the Sixth Amendment jury trial guarantee and the ex post facto provisions of the Federal and State Constitutions, I respectfully dissent.

¶25For reversal and remandment — Chief Justice PORITZ and Justices LaVECCHIA, ZAZZALI and RIVERA-SOTO — 4.

¶26Dissent in part/concur in part — Justices ALBIN and WALLACE — 2.