On certification to the Superior Court, Appellate Division, whose opinion is reported at 230 N.J. Super. 42 (1989).
For reversal in part; for affirmance in part; for remandment and modification -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Handler, J.
[119 NJ Page 154] This case requires the Court to consider again the appropriate standards governing mandatory extended term sentencing under the Graves Act. The trial court concluded that such sentencing was required because defendant had been convicted of armed robbery, a Graves Act offense, and defendant's criminal record alone established a prior conviction for a Graves Act offense. It therefore sentenced defendant on the armed robbery count to an extended term of life imprisonment with a twenty-five year parole disqualifier. On appeal, the Appellate Division found that the trial court should have conducted a hearing to determine whether the prior offense was a Graves Act offense and, further, that it should have applied the sentencing
standards applicable to discretionary extended terms to the mandatory extended term under the Graves Act. These rulings present the issues on appeal.
Following a trial by jury, defendant, Leonid Jefimowicz, was convicted on March 5, 1987, of first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a weapon, 2C:39-5b; and receiving stolen property, N.J.S.A. 2C:20-7a. Prior to sentencing, the State filed a motion seeking imposition of a mandatory extended term pursuant to the Graves Act, N.J.S.A. 2C:43-6c and N.J.S.A. 2C:44-3d or, alternatively, a discretionary extended term pursuant to N.J.S.A. 2C:44-3a. The motion was supported by certified copies of three of defendant's prior judgments of conviction, including a January 30, 1984 conviction entered on a plea of guilty as an accomplice to aggravated assault, N.J.S.A. 2C:12-1b(4) and 2C:2-6b(3). The State argued that this prior plea constituted a Graves Act conviction.
The trial court accepted the State's argument that the Graves Act mandated extended term sentencing and imposed an extended term of life imprisonment with a twenty-five year parole disqualifier. The court merged the third-degree weapons charge into the second-degree weapons charge and imposed a concurrent twelve-year sentence. In addition, the court gave defendant a concurrent seven-year sentence for the receiving stolen property count.
In a reported decision, 230 N.J. Super. 42, 552 A.2d 638 (1989), the Appellate Division affirmed the conviction but remanded the matter for sentencing, concluding that under our decision in State v. Martin, 110 N.J. 10, 538 A.2d 1229 (1988), before a defendant can be sentenced as a second-time Graves Act offender, the defendant must be permitted collaterally to challenge the validity of a prior guilty plea that constitutes the
basis of the earlier Graves Act offense conviction, and that this defendant had not been afforded that opportunity. The Appellate Division directed the trial court to scrutinize the plea proceedings underlying the prior conviction in order to determine if it was in fact a Graves Act offense. 230 N.J. Super. at 51, 552 A.2d 638. The Appellate Division also found that, because the aggravating factors did not justify the imposition of the maximum sentence with the maximum period of parole ineligibility, defendant's sentence "shocks the judicial conscience." Ibid. It determined further that the sentencing guidelines prescribed in State v. Dunbar, 108 N.J. 80, 527 A.2d 1346 (1987), apply to both mandatory and discretionary extended term sentencing and that the trial court should look to those guidelines when resentencing defendant. 230 N.J. Super. at 53, 552 A.2d 638.
We granted the State's cross-petition for certification. 117 N.J. 71, 563 A.2d 834 (1989). The issues thus presented are whether our holding in Martin required the trial court to conduct a further hearing to determine if the factual basis underlying the prior plea demonstrated that the conviction was a Graves Act offense, and whether Dunbar applies to mandatory, in addition to discretionary, extended term sentencing.
The sentencing provisions of the Code of Criminal Justice direct that a hearing be conducted in conjunction with the imposition of a mandatory sentence. The Graves Act, N.J.S.A. 2C:43-6d, provides in pertinent part: "The court shall not impose a mandatory sentence . . . unless the ground therefor has been established at a hearing." In State v. Martin, supra, we held that this statutory provision requires that where the underlying record is unclear with respect to the nature of a prior conviction, a hearing is required at which the basis ...