On certification to the Superior Court, Appellate Division, whose opinion is reported at 209 N.J. Super. 473 (1986).
For reversal and remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For affirmance -- none. The opinion of the Court was delivered by Wilentz, Chief Justice.
The Graves Act (L. 1981, c. 31) is designed to deter the possession or use of guns by criminals. It requires special sentencing for certain offenses when a gun is involved. Imprisonment is mandatory. The minimum term of imprisonment must be at least eighteen months for a fourth-degree crime and at least three years for any other crime; the law explicitly prohibits parole during these minimum terms. N.J.S.A. 2C:43-6c. The consequences are even more severe if the defendant has a prior Graves Act conviction, roughly twice as severe. That is the result of the Act's mandatory extended sentence provisions for second-time gun offenders. N.J.S.A. 2C:43-7a, c. It is therefore important for the State to prove that such a prior conviction exists. It is also important that the defendant be given the opportunity to prove that it does not.
The question in this case is whether a defendant, upon conviction of a Graves Act offense, may be sentenced to an extended term of imprisonment, based on a prior Graves Act conviction, without being notified that an extended term will be sought and without being given a hearing on whether there was such a prior conviction.*fn1 Here defendant, Donnell Martin, was
convicted of a Graves Act offense: first-degree robbery, N.J.S.A. 2C:15-1, in which he used or possessed a firearm. Had there been no prior Graves Act conviction, he would have been sentenced to prison for a term of between ten and twenty years, and would have been ineligible for parole for a period of no less than three and one-third years and no more than ten years, depending on the underlying sentence. See N.J.S.A. 2C:43-6a(1), -6c. By virtue of the extended term, however, he was subject to a mandatory term of imprisonment ranging from twenty years to life imprisonment, along with a mandatory parole ineligibility period of not less than six and two-thirds nor more than twenty-five years. See N.J.S.A. 2C:43-7a, -7c. When he appeared for sentencing, he had not been notified either by the court or by the prosecutor that this extended term might be imposed. On learning that it was going to be imposed, he requested a hearing. That request was denied.*fn2 The trial court sentenced him to imprisonment for thirty years with a fifteen-year period of parole ineligibility. The term of imprisonment actually imposed on him because of the invocation of the extended term provision was fifty percent greater than the maximum that could have been imposed under an ordinary term; the period of parole ineligibility actually imposed on him was also fifty percent greater than the maximum that could have been imposed.
The Appellate Division held that the statute did not require that defendant receive any advance notice that an extended
term might be imposed or that a hearing be conducted in order to determine the issue. 209 N.J. Super. 473 (1986). It recognized that its holding conflicted with State v. Latimore, 197 N.J. Super. 197 (App.Div.1984), certif. den., 101 N.J. 328 (1985). We certified the case in order to resolve the conflict. 104 N.J. 461 (1986); see R. 2:12-4. We hold that notice and hearing are required before a mandatory extended term may be imposed based on a prior Graves Act conviction.
Our statement of the issue defines it much more clearly than it appeared in fact. For instance, the defendant, although not given written notice of the potential mandatory extended term, presumably knew of the possibility of its imposition. He was represented by able counsel, and the transcript of the sentencing proceedings contains no suggestion that counsel was unaware either of defendant's prior record or of the rather clear mandate of the law. Moreover, while counsel requested a hearing on the extended term issue, he did not explicitly suggest or claim that the prior offense was not a Graves Act offense. The Appellate Division implied that such a claim might have resulted in a hearing and that its absence may have been regarded as a waiver. See 209 N.J. Super. at 480-81. As the Appellate Division viewed the record, which included a presentence report stating that defendant pleaded guilty to "armed robbery" in 1980, it is obvious that it regarded the argument about the requirement of notice and hearing, given the apparent facts before it, as a diversion. Since it concluded that defendant did not seriously contest the existence of a prior Graves Act conviction, it found little sense in reversing and remanding so that defendant could be notified of and given a hearing on a claim he apparently could not controvert. And to the extent that the Appellate Division had any doubt on this subject, it provided for the possibility of error by explicitly advising the defendant that if he "actually desires to contest whether he was previously convicted of a 'Graves' offense, he should move before the trial court under R. 3:22-2 for correction of an illegal sentence." 209 N.J. Super. at 482.
We recognize the possibility that in the case before us today, the disposition by the Appellate Division may both accomplish substantial justice and conserve judicial energy. We conclude, however, that the matter should be definitively resolved because the relevant statutes clearly require notice and a hearing, as the Latimore court held. More than that, the issue here -- whether there was a prior Graves Act conviction -- is not, given its consequences, one that is wisely resolved through practical techniques similar to those often used in civil cases to dispose of matters that are not seriously contested. There is a qualitative difference between deciding whether such a prior conviction exists and deciding in a civil matter whether, for example, there is no "genuine issue as to any material fact challenged" so as to grant summary judgment (R. 4:46-2), or whether a matter may proceed summarily on the papers "or on minimal testimony in open court" (R. 4:67-2(b)). Important as these determinations are, they do not affect a defendant's liberty.
While it is true that the imposition of an extended term is but another form of sentencing and therefore not subject to the procedural requirements of the criminal trial itself, clearly the extended term has most drastic consequences, and should be accompanied by a process appropriate for such consequences. Given the imprecision of the trial court's proceedings, it is understandable -- indeed commendable -- that the Appellate Division, even though it concluded that the sentencing proceeding was proper, sought certainty about the correctness of its decision by explicitly advising defendant that he could challenge the sentence if he really objected to it. But this indicates not only that court's resolve to be fair, but also the potential unfairness of the procedure it sanctioned. Where substantial liberty interests are at stake, where the consequences are thirty years imprisonment instead of fifteen (the presumptive term as no extended ...