Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Livingston

May 23, 2002

STATE OF NEW JERSEY, PLAINTIFF,
v.
SYLVESTER LIVINGSTON, DEFENDANT.
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
DERRICK GRIMSLEY, DEFENDANT-RESPONDENT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 340 N.J. Super. 133 (2001).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The issue rais ed in this appeal is whether the "Three Strikes" law, N.J.S.A. 2C:43-7.1a, may be applied to a third-time offender who previously entered two separate guilty pleas for two separate crimes at one plea proceeding and was sentenced for those separate crimes in one sentencing proceeding. To answer the question, the Court must decide whether the contemporaneous convictions were imposed "on two or more prior and separate occasions" as required by the "Three Strikes" law.

In the early morning hours of August 8, 1995, Rodney Jenkins pulled into a closed Sunoco service station in Trenton to make a telephone call. Marcus Payton drove past the station with defendants Sylvester Livingston and Derrick Grimsley. Payton stopped his vehicle around the corner, purportedly to relieve himself. Payton testified that he observed Livingston and Grimsley pull a black revolver from a knapsack and walk around the corner toward the Sunoco station. Payton heard three gunshots and then saw Grimsley drive away in the van that Jenkins had been driving, with Livingston in the passenger seat. Of the three shots heard by Payton, two struck Jenkins in the back as he tried to run from his attackers. Jenkins was critically wounded and eventually lost use of both of his legs, his left arm, and his shoulder.

Livingston and Grimsley were indicted for first-degree carjacking, first-degree robbery, and first-degree attempted murder, among other charges. A jury found them guilty on all counts. Although Livingston's conviction was affirmed on appeal below, he is not involved in this appeal, which relates solely to Grimsley's sentencing.

In advance of sentencing, the State served notice of its intention to seek an extended term of imprisonment based on three different theories of Grimsley's repeat offender status: as a Graves Act offender under N.J.S.A. 2C:43-6c; as a persistent offender under N.J.S.A. 2C:44-3a; and as a repeat violent offender under the "Three Strikes" law, N.J.S.A. 2C:43-7.1a. The State's notice relied on Grimsley's two prior convictions for two separate first-degree robberies. The first robbery occurred in Essex County on December 1, 1983, and the second occurred in Union County on May 10, 1985. The robbery indictments were consolidated for plea disposition in Union County at which time Grimsley entered separate guilty pleas within minutes of each other on October 24, 1985. On December 3, 1985, the Superior Court in Union County entered separate judgments of conviction and sentenced Grimsley to concurrent twelve-year terms of imprisonment with four years of parole ineligibility on each robbery. The State argued that the convictions for the two robberies committed on two distinct occasions constituted two predicate strikes under the "Three Strikes" law, notwithstanding the fact that the convictions were entered contemporaneously.

The trial court concluded that Grimsley was not eligible for sentencing under the "Three Strikes" law because the statute expressly required that the defendant be convicted on two separate occasions. The court sentenced Grimsley to two concurrent extended terms of life imprisonment under the Graves Act with a parole ineligibility period of twenty-five years on the carjacking and attempted murder convictions. It also imposed a consecutive ten-year sentence with a parole ineligibility term of five years for the weapons conviction. Grimsley appealed the life sentence for carjacking, and the State cross-appealed the trial court's failure to sentence Grimsley under the "Three Strikes" law. The Appellate Division rejected the State's argument that Grimsley's prior robbery convictions constituted convictions "on two or more prior and separate occasions" under the "Three Strikes" law. State v. Livingston, 340 N.J. Super. 133 (2001). On Grimsley's appeal, the Appellate Division vacated the life sentence for carjacking based on the State's concession that carjacking was not one of the enumerated offenses for which a Graves Act extended term could be imposed.

The Supreme Court denied the petitions for certification filed by Livingston and Grimsley. It granted the State's cross-petition, limited to the issue whether Grimsley's prior convictions qualified him for sentencing under the "Three Strikes" law.

HELD: A person is not eligible for sentencing under the "Three Strikes" law unless the predicate convictions have been imposed in two or more separate and distinct proceedings held on different dates, rather than one single, continuous proceeding.

1. The "Three Strikes" law mandates life imprisonment without parole for a person who has been convicted on three separate occasions of certain violent first-degree offenses, including robbery. The Supreme Court upheld the constitutionality of the law in State v. Oliver, 162 N.J. 580 (2000). The Appellate Division concluded that the relevant language of the "Three Strikes" law, "on two or more prior and separate occasions," is clear and unambiguous. The Supreme Court disagrees and finds that the statue is not clear concerning whether two convictions imp osed in one proceeding qualify as one strike or two strikes under the law. (Pp. 8-13)

2. Other sentence enhancement provisions are useful in determining whether the phrase "prior and separate occasions" means that each prior conviction for an enumerated crime must occur on different days. The former Habitual Offender Act, N.J.S.A. 2A:85-12, which was repealed in 1979 when the Code became effective, is the most compelling comparison to the "Three Strikes" law. The Habitual Offender Act provided that a person convicted on "separate occasions" of certain crimes who thereafter was convicted of another such crime was a habitual criminal and subject to a life sentence. The Act clearly stated that convictions of two or more crimes charged in one indictment or in two or more indictments or accusations consolidated for trial were deemed to be only one conviction. The courts have almost uniformly interpreted the phrase "separate occasions" to mean "at different times." When the Legislature uses words in a statute that previously have been the subject of judicial construction, it is deemed to have used those words in the sense that has been ascribed to them. Thus, the requirement in the "Three Strikes" law that the two prior convictions occur on "separate occasions" suggests that the Legislature did not intend to make each conviction count as a strike when entered simultaneously. This interpretation is also consonant with the rule of strict construction of penal statutes. In order for the prior convictions to be entered on "two or more prior and separate occasions," each must be entered by a court in a separate session on different days. (Pp. 13-20)

3. The State also argues that the decision to construe defendant's two earlier convictions as merely one strike denies certain defendants equal protection of the law. It maintains that similarly situated defendants will be treated differently based solely on their attorneys' ability to "package" plea agreements. A statute that does not treat a suspect class disparately and does not affect a fundamental right is subject to a rational basis test. Under that test, the governmental action must be rationally related to the achievement of a legitimate state interest. The "Three Strikes" law withstands that scrutiny. Imposing a life sentence for individuals who repeatedly commit the enumerated first- and second-degree offenses is rationally related to the legitimate governmental interest of protecting the public from violent offenders. Concerns that there may be abuse in the structuring and scheduling of guilty pleas could be adequately addressed through guidelines to prosecutors. But the Court has not been presented with any indication that guidelines are needed now. (Pp. 20-23)

The judgment of the Appellate Division is AFFIRMED.

JUSTICE STEIN has filed a separate, concurring opinion, expressing the view that the Court's holding is required by the clear and unambiguous language of the statute and is not a reflection of legislative intent. JUSTICE LONG has filed a separate opinion concurring in part and dissenting in part, agreeing with the majority's conclusion that Grimsley is not subject to sentencing under the "Three Strikes" law because he was not previously convicted "on two or more prior and separate occasions." Justice Long dissents from the majority's conclusion that so long as Grimsley's convictions are separated by a day, the "Three Strikes" law is triggered. In her view, the Court should adopt the "intervening convictions" approach to interpret the statute, which would require that there be some chance of rehabilitation between each qualifying conviction.

JUSTICES LaVECCHIA and ZAZZALI join in JUSTICE COLEMAN's opinion. JUSTICE STEIN has filed a separate concurring opinion. JUSTICE LONG has filed a separate opinion concurring in part and dissenting in part. CHIEF JUSTICE PORITZ and JUSTICE VERNIERO did not participate.

The opinion of the court was delivered by: Coleman, J.

Argued February 13, 2002

This appeal raises novel questions concerning the application of the Persistent Offenders Accountability Act, also known as the "Three Strikes" law, N.J.S.A. 2C:43-7.1a. That statute mandates a sentence of life imprisonment for a third-time criminal offender "who has on two or more prior and separate occasions been convicted" of certain enumerated first- and second-degree offenses. The specific issue raised is whether the statute may be applied to a third-time offender who previously entered two separate guilty pleas for two separate crimes at one plea proceeding and was sentenced for those separate crimes in one sentencing proceeding. To answer that question, we must decide whether those contemporaneous convictions were imposed "on two or more prior and separate occasions" as required by the "Three Strikes" law.

The Appellate Division in a published opinion concluded that defendant could not be sentenced to life imprisonment under the "Three Strikes" law because his two prior convictions were imposed in one proceeding and not "on two or more prior and separate occasions." State v. Livingston, 340 N.J. Super. 133, 140 (2001). The court reasoned that the statute focuses on separate convictions, not separate crimes, and was not applicable because defendant's convictions "occurred in a single continuous proceeding." Id. at 144. We agree and hold that a person is not eligible for sentencing under the "Three Strikes" law unless the predicate convictions have been imposed in two or more separate and distinct proceedings held on different dates, rather than one single continuous proceeding.

I.

In the early morning hours of August 8, 1995, Rodney Jenkins, a medical security officer at Trenton Psychiatric Hospital, left a bar and dropped off a co-worker at home in Trenton. Jenkins was a member of the hospital's security officers' basketball team and had gone out with his teammates after a game. While driving his girlfriend's van Jenkins pulled into the parking lot of a closed Sunoco service station on Prospect Street in Trenton. As he used a coinoperated telephone in the Sunoco station, Marcus Payton drove past the station with defendants Sylvester Livingston in the front seat and Derrick Grimsley in the back seat. As Jenkins talked on the phone, Payton circled the area and eventually stopped his vehicle around the corner purportedly to relieve himself. Payton testified that he observed Livingston and Grimsley pull a black revolver from a knapsack and walk around the corner toward the Sunoco station. Payton heard three gunshots and then saw Grimsley drive away in the van that Jenkins had been driving, with Livingston in the passenger seat. All three individuals left Jenkins lying on the ground as they departed the area.

Of the three gunshots heard by Payton, the first missed Jenkins but the two others struck him in the back as he tried to run from his attackers. One bullet pierced his shoulder and the other struck him in the center of his back, seriously wounding him. John Christie, one of Jenkins's co-workers, drove by the Sunoco station seconds after the shooting and saw Jenkins lying on the ground. Christie transported Jenkins to Mercer County Hospital with the aid of Clark Wiley, a nearby neighbor. Jenkins was critically wounded and eventually lost the use of both of his legs, his left arm and shoulder as a result of the shooting.

Livingston and Grimsley were indicted for first-degree carjacking, in violation of N.J.S.A. 2C:15-2; first-degree robbery, in violation of N.J.S.A. 2C:15-1; third-degree theft, in violation of N.J.S.A. 2C:20-3a; fourth-degree unlawful taking of a motor vehicle, in violation of N.J.S.A. 2C:20-10b; first-degree attempted murder, in violation of N.J.S.A. 2C:11-3 and 2C:5-1; second-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(1); fourth-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(4); second-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5b. A jury found Livingston ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.