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State v. Oliver

February 28, 2000

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GREGORY OLIVER, A/K/A "RED", DEFENDANT-APPELLANT.



The opinion of the court was delivered by: O'hern, J.

Argued October 25, 1999

On certification to the Superior Court, Appellate Division, whose opinion is reported at 316 N.J. Super. 592 (1998).

In 1993, Richard Allen Davis, a six-time offender, on parole for his most recent offense, a sexual assault, broke into the Petaluma, California home of Polly Klaas, a twelve-year-old child. She and her friends had had a slumber party. Davis kidnaped, raped and killed Polly. A year and a half earlier, eighteen-year-old Kimber Reynolds had been murdered by a repeat offender in Fresno, California. Polly's murder was the turning point in the efforts of Kimber's father, Mike, to prevent the premature release from prison of dangerous criminals. Both victims' fathers became heavily involved in the legislative reaction to such shocking murders by paroled offenders. The efforts focused on various proposals. One proposal was for a "Three Strikes" law. A "Three Strikes" law is a shorthand expression for a law providing mandatory life imprisonment for certain third-time criminal offenders. *fn1 When President Clinton signed the Violent Crime Control and Law Enforcement Act of 1994 containing the federal version of three-strikes legislation, that act encouraged many states to follow suit. See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 (1994); Michael G. Turner, et al., Three Strikes and You're Out Legislation: A National Assessment, Fed. Probation, Sept. 1995, at 16. In 1995, the New Jersey Legislature passed a three-strikes bill entitled the Persistent Offender Accountability Act. N.J.S.A. 2C:43-7.1a. That law mandates a life sentence without parole for any person convicted on three separate occasions of certain violent crimes, such as murder, manslaughter, aggravated assault, kidnaping, sexual assault, robbery, or illegal possession of a firearm or explosive. The central issue in this appeal is the constitutionality of that legislation.

I.

The essential facts of the case are set forth in the reported opinion of the Law Division, 298 N.J. Super. 538 (Law Div. 1996). On December 10, 1995, Gregory Oliver and James Fisher entered an abandoned apartment located in Paterson, New Jersey. One Leon Johnson was in the apartment. As Fisher engaged Johnson in a conversation, Oliver struck Johnson in the head with a four-foot metal pipe. Oliver stole $100 and crack cocaine from Johnson, which he later shared with Fisher. The brutal assault caused a blood clot in Johnson's brain and fractures of his skull. Johnson was in a coma for four days and has permanent brain damage. A jury convicted defendant of robbery in the first-degree and aggravated assault. Following his conviction, the prosecutor moved for imposition of a life sentence pursuant to the Three-Strikes law.

Defendant's criminal record displayed a history of violent offenses. In 1973, defendant was convicted of robbery under N.J.S.A. 2A:141-1. The trial court determined that this crime was considered a "first-strike," because defendant's sentence was equivalent to that for first-degree robbery as defined in the current criminal code at N.J.S.A. 2C:15-1. In 1979, defendant was again convicted of robbery under N.J.S.A. 2A:141-1 and atrocious assault and battery under N.J.S.A. 2A:90-1. Although the Appellate Division reversed the trial court's determination that the 1973 crime was a "first-strike" because the offense did not demonstrate the use of force or involve a deadly weapon, the court agreed that the 1979 crimes were "substantially equivalent" to a N.J.S.A. 2C:15-1b conviction. In 1986, defendant was convicted on three separate counts of first-degree robbery. This conviction was considered an unquestioned "strike." Depending on the analysis of the 1979 conviction, the defendant's present conviction for robbery counts as either a "second" or "third" strike under New Jersey's Three-Strikes Law. See N.J.S.A. 2C:43-7.1a.

The trial court considered the constitutional objections raised by defendant and in a thorough and comprehensive opinion, found the Three-Strikes Law to be constitutional. 298 N.J. Super. at 566. The court sentenced the defendant on the first-degree robbery offense to a term of life imprisonment with no eligibility for parole. On appeal, the Appellate Division affirmed the conviction and sentence and upheld the constitutionality of the Three-Strikes Law substantially for the reasons stated by the Law Division. 316 N.J. Super. 592 (App. Div. 1998). We granted defendant's petition for certification. 158 N.J. 74 (1999).

II.

We first consider Oliver's general constitutional challenges to the Three-Strikes Law. The statute provides, in relevant part:

A person convicted of a crime under any of the following:

N.J.S. 2C:11-3; subsection a. of N.J.S. 2C:11-4; a crime of the first degree under N.J.S. 2C:13-1, paragraphs (3) through (6) of subsection a. of N.J.S. 2C:14-2; N.J.S. 2C:15-1; or section 1 of P.L. 1993, c. 221 (C. 2C:15-2), who has on two or more prior and separate occasions been convicted of a crime under any of the foregoing sections or under any similar statute of the United States, this state, or any other state for a crime that is substantially equivalent to a crime under any of the foregoing sections, shall be sentenced to a term of life imprisonment by the court, with no eligibility for parole.

[N.J.S.A. 2C:43-7.1a *fn2 ]

Oliver argues that the Three-Strikes Law violates several constitutional principles: double jeopardy, separation of powers, ex post facto prohibition, prohibition against cruel and unusual punishment, and the guarantees of equal protection of the law, and of due process of law. For convenience, we generally adopt the format of the Law Division's opinion that accurately stated the relevant legal principles. We simply abbreviate the discussion.

A. Double Jeopardy

Oliver contends that the Three-Strikes Law violates the double jeopardy clause of state and federal constitutions because the law imposes multiple punishments for the same offense. He argues that he has already served his punishment for his previous strikes; he cannot be punished again for them by counting them against him in the sentence for the December 1995 assault. Although the double jeopardy clause protects against the imposition of two punishments for the same offense, the Supreme Court has held that recidivist statutes that enhance punishment based on prior offenses do not violate double jeopardy guarantees because "the enhanced punishment imposed for the later offense `is not to be viewed as either a new jeopardy or additional penalty for earlier crimes,' but instead as a `stiffened penalty for the latest crime, which was considered to be an aggravated offense because it is a repetitive one.'" Witte v. United States, 515 U.S. 389, 400, 115 S. Ct. 2199, 2206, 132 L. Ed.2d 321, 364 (1995) (citing Gryger v. Burke, 334 U.S. 728, 732, 68 S. Ct. 1256, 1258, 92 L. Ed.2d 1683 (1948)).

B. Separation of Powers

Oliver contends that the Three-Strikes Law violates the principle of separation of powers because it impermissibly increases the discretionary power of prosecutors while stripping the judiciary of all discretion to craft sentences. Defendant contends that suspension of sentences is an inherent judicial power protected by our Constitution from legislative interference. See N.J. Const. art. III, ¶ 1 and art. IV, § I, ¶ 1. In order to avoid constitutional difficulties, he urges us to construe the statute to permit judges to apply the statute at their discretion. *fn3

The Supreme Court has held under federal law that "Congress has the power to define criminal punishments without giving the courts any sentencing discretion." Chapman v. United States, 500 U.S. 453, 467, 11 S. Ct. 1918, 1928, 114 L. Ed. 2d 524, 539 (1991) (citing Ex Parte United States, 242 U.S. 27, 37 S. Ct. 72, 61 L. Ed. 129 (1916)). We considered the same issue in State v. Des Marets, 92 N.J. 62, 80-81 (1983), and held:

This issue of legislative power to preclude judicial suspension of sentences may be thought of as subsumed in the larger issue of power to enact mandatory sentencing laws in the first place. As suggested above, that latter power would not amount to much if it did not include the former. A recent confirmation of the power to mandate imprisonment is found in our dictum in State v. Bausch, 83 N.J. 425, where we noted that "the judiciary has no power . . . to lessen or reduce a sentence where the Legislature has provided a mandatory penalty . . . .

C. Ex Post Facto

Oliver contends that the Three-Strikes Law violates the Ex Post Facto Clause because it changes the legal consequences of his prior bad acts. See U.S. Const., art. I, § 10, cl. 1; N.J. Const., art. IV, § 7, ¶ 3. The Supreme Court has held that recidivist statutes do not violate the Ex Post Facto Clause if they were on the books at the time the triggering offense was committed. See, e.g., Gryger v. Burke, 334 U.S. 728, 732, 68 S. Ct. 1256, 1258, 92 L. Ed.2d 1683 (1948) (holding that sentence as a habitual criminal is not viewed as a new jeopardy or additional penalty for earlier crimes; rather it is a stiffened penalty for the latest crime, which is ...


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