The opinion of the court was delivered by: Riva
This case involves for the first time in New Jersey the application of N.J.S.A. 2C:43-7.1, the "Persistent Offenders Accountability Act," also known as the "Three Strikes and You're In Act" in the sentencing of a defendant. *fn1 This Act attempts to deal with the crime problem posed to society by dangerous and repetitive criminals by incarcerating them for life without parole. *fn2 It is limited to persons convicted on three separate occasions of certain designated offenses. *fn3
Tried to a jury, defendant, Gregory Oliver, was convicted on September 20, 1996, of first degree robbery, in violation of N.J.S.A. 2C:15-1; second degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(1); and third degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(2). He was acquitted on the charge of attempted murder.
The evidence revealed that on December 10, 1995, Gregory Oliver and James Fisher entered an abandoned apartment located in Building 10 of the Christopher Columbus Projects in Paterson. While Fisher was engaged in a conversation with Leon Johnson, Oliver struck Johnson in the back of the head with a four foot metal pipe and took from him $100 and crack cocaine, which he later shared with Fisher.
As a result of Oliver's actions, Johnson received a blood clot to his brain and several fractures to his skull. He also suffered from swelling and abrasions to the back of his head and bleeding to his left ear. His scalp was swollen and bruised. He was in a coma for about four days and sustained permanent brain damage.
According to Johnson's neurosurgeon, Dr. Charles Curry, who testified at the trial, Johnson would have died without an operation. Instead, a two hour operation was performed on him and about three per cent of his brain was removed. The victim was confined to the hospital for several weeks.
Although the incident occurred almost a year ago, Johnson still suffers from recent memory loss and impaired attention span. He continues to complain of dizziness, light headedness and headaches.
Preliminarily, the court considers whether the "Three Strikes and You're In Act" is constitutional. Because this is a case of first impression in New Jersey, the court narrowed its focus on the most common constitutional arguments raised throughout the country pertaining to "three strikes" legislation generally. *fn4
The first constitutional issue is whether the Act violates the Ex Post Facto Clause of both the federal and state constitutions because it utilizes defendant's convictions which were committed before the Act's enactment in order to enhance the defendant's sentence. U.S. Const., art. I, § 10, cl. 1; N.J. Const., art. IV, § 7, P 3. This court holds that the Act is not ex post facto under either the federal or state constitutions.
The Federal and New Jersey courts have held that a statute which provides for increased punishment for an offender who has previously been convicted is not ex post facto merely because the previous conviction or convictions took place before its enactment. Gryger v. Burke, Pa., 334 U.S. 728, 68 S. Ct. 1256, 92 L. Ed. 1683 (1948), reh'g denied, 335 U.S. 837, 69 S. Ct. 13, 93 L. Ed. 389 (1948); U.S. v. Ilacqua, 562 F.2d 399 (6th Cir. 1977), cert. denied, 435 U.S. 906, 98 S. Ct. 1453, 55 L. Ed. 2d 497 (1978); Pettway v. U.S., 216 F.2d 106 (6th Cir. 1954); Wilson v. U.S., 205 F.2d 567 (9th Cir. 1953); Beland v. U.S., 128 F.2d 795 (5th Cir. 1942), cert. denied, 317 U.S. 676, 63 S. Ct. 157, 87 L. Ed. 543 (1942), reh'g denied, 317 U.S. 710, 63 S. Ct. 205, 87 L. Ed. 566 (1942); Alaway v. U.S., 280 F. Supp. 326 (C.D.CA. 1968); U.S. v. Platt, 31 F. Supp. 788, 793 (D.Ct. Tex. 1940); In re Caruso, 10 N.J. 184, 89 A.2d 661 (1952); State v. Phillips, 154 N.J. Super. 112, 380 A.2d 1197 (Law Div. 1977), aff'd, 169 N.J. Super. 452, 404 A.2d 1270 (App.Div.1979). This is so because the law does not punish the defendant for the prior offense, but merely increases the punishment for the instant offense.
The punishment mandated under the Act is for a third "strike," not a first or second strike. The sentences previously imposed on the defendant are not enhanced by his third conviction. The earlier convictions or strikes merely provide the defendant's background to be considered in sentencing for the third offense. Thus, only the third strike triggers the heavier penalty under the Act. See Phillips, supra, 154 N.J. Super. at 119 (1977), 169 N.J. Super. 452, 404 A.2d 1270(1979) (subsequent offender provisions such as that contained in current drinking-driving statute, N.J.S.A. 39:4-50, do not undertake to punish again for prior offenses and are not violative of ex post facto provisions of federal and state constitutions); State v. Nugent, 152 N.J. Super. 557, 378 A.2d 95 (1977) (generally, additional punishment for recidivists does not necessarily create ex post facto problems where additional punishment comes as a result of subsequent offense); State v. Sturn, 119 N.J. Super. 80, 83, 290 A.2d 293 (App.Div.1972), certif. denied, 61 N.J. 157 (1972) (use of prior conviction to invoke second offender penalties does not violate ex post facto provisions of federal and state constitutions); but see, State v. Cannon, 94 N.J. Super. 66, 226 A.2d 755 (Law Div. 1967) (use of prior conviction to enhance penalty under a subsequently enacted statute is ex post facto and invalid).
Because defendant's sentence is for an offense that occurred after the effective date of the Act, there is no ex post facto violation. Accordingly, the Ex Post Facto Clause does not preclude this court from considering defendant's convictions prior to the Act's enactment as strikes for purposes of sentencing.
The next constitutional issue is whether the Act violates the Separation of Powers Doctrine for any of the following reasons: (1) it vests in the prosecutor "veto" power over sentencing under it; or (2) it removes the court's right to exercise discretion during the sentencing process; or (3) it unlawfully delegates to the Executive Branch the legislative function of setting sentences by transferring sentencing power from Judges to prosecutors without providing "guidelines."
The federal and state constitutions provide for the separation of the three branches of government. The New Jersey Constitution provides:
The powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution.
[N.J. Const., art. III, P 1.]
Legislation which violates the Separation of Powers Doctrine is thus void.
Although the prosecutor has discretion to determine what charges to file and whether to negotiate plea agreements, this Act does not confer upon the prosecutor "veto" power over the sentencing under it. The application of the Act is limited to persons convicted on three separate occasions of certain designated offenses. Thus, once an offender falls within the scope of the Act, the sentence is mandatory. The law is unambiguous on this point and requires that every person convicted on a third and subsequent occasion of any of the specified crimes shall be sentenced to a term of life imprisonment with no eligibility for parole. Therefore, since the sentence is mandatory, there is no room for prosecutorial discretion.
Furthermore, the Act does not infringe upon the court's discretion in sentencing. Indeed, such an argument would require this court incorrectly to assume that the sentencing authority is vested solely in the Judiciary and that the Judiciary has a constitutionally-based right to determine the length of any particular sentence. However, on the contrary, our courts have consistently held that the determination of penalties for crimes is a legislative function, not a judicial one. See State v. Lagares, 127 N.J. 20, 601 A.2d 698 (1992); State v. Smith, 148 N.J. Super. 219, 372 A.2d 386 (Cty. Ct. 1977), aff'd, 169 N.J. Super. 98, 404 A.2d 331, certif. granted, 82 N.J. 292, rev'd on other grounds, 85 N.J. 193 (1981). A trial court does not have the right to do whatever it pleases. The court's discretion in sentencing is limited by the sentencing ranges given to it by the Legislature. See State v. Des Marets, 92 N.J. 62, 455 A.2d 1074 (1983) (Graves Act's preclusion of judicial suspension was not unconstitutional) . Furthermore, it is within the power of the Legislature to provide the minimum and maximum terms of a sentence. State v. Hampton, 61 N.J. 250, 273, 294 A.2d 23 (1972).
It goes without saying that the trial Judge is best suited to determine an appropriate and fair sentence for a convicted defendant based upon the Judge's knowledge, experience and judgment in this area. This is because the trial Judge has the opportunity to observe the defendant; to learn the extent and the details of his criminal history; to hear the specific circumstances of the crime and the impact on its victims; and to compare the defendant and the crime with other offenders and crimes in the community. While the trial Judge is in the best position to fashion a just punishment that meets the demands of society for protection and retribution, this Court finds no constitutional power on the part of the trial Judge to make that determination.
The Act does not transfer sentencing discretion from Judges to prosecutors and, therefore, the danger of uneven application of the Act by prosecutors is non-existent. In State v. Vasquez, 129 N.J. 189, 196, 609 A.2d 29 (1992), the Court noted that since N.J.S.A. 2C:35-12 vests sentencing power in the prosecutor, judicial oversight was mandated to protect against arbitrary and capricious prosecutorial decisions. In Lagares, supra, 127 N.J. 20 (1992), after recognizing that N.J.S.A. 2C:43-6f takes effect only on the prosecutor's application, the Court required that guidelines be adopted to assist prosecutorial decision-making with respect to applications for enhanced sentences under section of to prevent an unconstitutional delegation of legislative authority to alter the sentencing process. In State v. Leonardis, 71 N.J. 85, 363 A.2d 321 (1976) (Leonardis I), it was held that statewide Pre-trial Intervention programs should be implemented according to uniform guidelines under which defendants accused of any crime shall be eligible for admission. Admission is measured according to the offense with which the defendant is charged and the defendant's amenability to correction and responsiveness to rehabilitation. In addition, the defendant is accorded an informal hearing before the designated Judge for a county at every stage of his association with a PTI project where his admission, rejection or continuation in the program is put in question.
With respect to applications for a life sentence under the Act, prosecutorial guidelines are not necessary nor required because the Legislature has fixed the penalty mandated under the Act and did not provide for prosecutorial "veto" power of a trial Judge's decision. The court is satisfied that the dangers of prosecutorial arbitrariness which troubled our Supreme Court in Vasquez, Lagares and Leonardis simply do not exist with the ...