On certification to the Superior Court, Appellate Division.
(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 question presented in this appeal is whether the 85 % minimum term required under the pre-amendment No Early Release Act (NERA) is limited to the maximum ordinary term of a sentence as opposed to an extended term. Effective June 29, 2001, the Legislature amended NERA to provide that the 85% minimum term be calculated based upon the sentence actually imposed without regard to whether it was an ordinary or an extended sentence. N.J.S.A. 2C:43-7.2b, L. 2001, c. 129, § 1.
On September 21, 1997, John Nalbone and his family were returning home when they observed Charles Meekins leaving their property carrying their compact disc player. Nalbone exited his car and shouted for Meekins to stop, but Meekins continued to walk away. Nalbone chased and tackled Meekins. During the struggle, Meekins stabbed Nalbone in the neck and arm with a sharp object. Nalbone's wife called the police, and Nalbone was able to successfully restrain Meekins. Police arrived, arrested Meekins, and discovered substantial evidence of a break-in at Nalbone's home.
Meekins was convicted of second-degree burglary, first-degree robbery, and other offenses. The State's motion for an extended term sentence under the persistent offender statute was granted. The trial court sentenced Meekins to an extended life term with twenty-five years of parole ineligibility. The trial court applied preamendment NERA to the extended sentence, which increased the parole ineligibility period to 63.75 years.
In an unpublished opinion, the Appellate Division affirmed the conviction and sentence, but declined to address whether a pre-amendment NERA sentence can be imposed on the extended term portion of the sentence because the issue was not briefed. This Court granted certification limited to the issue of the application of preamendment NERA to the extended term sentence, and summarily remanded to the Appellate Division for a decision on the merits. After supplemental briefing, the Appellate Division concluded that the trial court correctly applied pre-amendment NERA to the extended term sentence.
The Supreme Court again granted the State's petition for certification.
HELD A defendant sentenced to an extended term under pre-amendment NERA is only subject to parole ineligibility for the maximum ordinary term portion of the sentence.
1. Subsequent to the trial court's imposition of sentence here, the Appellate Division and this Court addressed several aspects of pre-amendment NERA. The Appellate Division concluded that pre-amendment NERA did not apply to murder. State v. Manzie, 335 N.J. Super. 267 (2000), aff'd, 168 N.J. 113 (2001). After reviewing the sentencing scheme for murder, including the fact that murder is the only crime for which life imprisonment is available as an ordinary term sentence, the panel stated that "if the Legislature had intended [pre-amendment] NERA to apply to murder, it would have done so expressly and by amending the murder statute." A six-member, equally divided Court affirmed. State v. Manzie, 168 N.J. 113 (2001). The three justices that agreed with the Appellate Division explained that basic principles of due process, as well as clarity in statutory draftsmanship, mandate that if the Legislature intended NERA to apply to murder, the Code of Criminal Justice must be amended to clearly reflect that intention and eliminate any ambiguity and uncertainty. (pp. 5-7)
2. In another murder case, the Appellate Division stated that a preamendment NERA mandatory term with respect to an extended term sentence should be considered in a manner consistent with Manzie. State v. Allen, 337 N.J. Super. 259 (2001), certif. denied,
The opinion of the court was delivered by: Justice Wallace
The original No Early Release Act (pre-amendment NERA), L. 1997, c. 117, § 2, was enacted in 1997 and provided for a mandatory minimum prison term of 85% of the sentence imposed for first and second degree violent crimes. On two separate occasions, the Appellate Division limited the application of pre-amendment NERA to the maximum ordinary term portion of an extended term sentence. Effective June 29, 2001, the Legislature amended NERA to require the minimum parole ineligibility period to be calculated based upon the sentence actually imposed without regard to whether it was an ordinary or an extended sentence. N.J.S.A. 2C:43-7.2b, L. 2001, c. 129, § 1. The question presented is whether the 85% minimum term applies to the extended portion of the sentence a defendant receives under pre-amendment NERA. Given our trial courts' significant reliance on case law applying pre-amendment NERA only to the maximum ordinary term portion of a defendant's extended term sentence, we answer the question in the negative. We hold that when applying pre-amendment NERA to an extended term sentence, the trial court shall limit defendant's parole ineligibility period to 85% of the maximum ordinary term sentence.
We briefly recite the facts giving rise to the disputed sentence. On September 21, 1997, John Nalbone and his family were returning home from a picnic when they observed defendant, Charles Meekins, leaving their property carrying their compact disc player and a carrying case. Nalbone exited his car and shouted at him, but defendant continued to walk away. Nalbone chased and tackled defendant. During the struggle, defendant stabbed Nalbone in the neck and arm with a sharp object.
Nalbone yelled to his wife to call the police as he successfully restrained defendant. A short while later, the police arrived, arrested defendant, and discovered substantial evidence of a break-in at Nalbone's home.
On May 13, 1999, defendant was convicted of second-degree burglary, N.J.S.A. 2C:18-2 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); fourth-degree theft by unlawful taking as a lesser-included offense, based on the value of the goods stolen, N.J.S.A. 2C:20-3a (count three); third-degree aggravated assault as a lesser-included offense, N.J.S.A. 2C:12- 1b(1) (count four); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count five); and fourth degree unlawful possession ...