October 13, 2004
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ERICK L. MCMILLAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, L-98-06-0867.
Before Judges King, Braithwaite and S.L. Reisner.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
REDACTED SUPPLEMENTAL OPINION
Argued May 26, 2004
Decided June 28, 2004
Motion for Reconsideration granted.
Resubmitted September 20, 2004
Redacted Supplemental Opinion November 18, 2004
On June 28, 2004 we filed our original opinion in this matter affirming defendant's convictions for robbery, assault and weapons offenses. The trial judge imposed an extended term of fifty years with twenty-five years of parole ineligibility. See N.J.S.A. 2C:43-7; N.J.S.A. 2C:44-3. On July 6 the defendant moved for reconsideration which we granted because defendant's pro se supplemental brief had never been brought to our attention. We then filed a supplemental opinion reaffirming the conviction and the extended term sentence.
In that opinion we summarily rejected defendant's nine claims of error and affirmed under R. 2:11-3(e)(2). We now file this redacted version of our first supplemental opinion, for publication purposes.
In an addendum to his supplemental filing, defendant had made this claim:
APPELLANT'S SENTENCING PROCEDURE IMPOSING THE EXTENDED TERM, DEPRIVED HIM OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHT TO HAVE A JURY DETERMINE BEYOND A REASONABLE DOUBT ALL FACTS LEGALLY ESSENTIAL TO HIS SENTENCE AND TO THE CONTRARY WAS A DENIAL OF APPELLANT'S DUE PROCESS/EQUAL PROTECTION CLAUSE PURSUANT TO THE U.S. CONST. 14TH, AND 6TH AMEND. AND N.J. CONST. ART. 1. PARA. 1, 9, & 10.
We also reject this additional supplemental claim. As to this issue, freshly raised in the wake of Blakely v. Washington, ____ U.S. ____, 124 S.Ct. 2531, ____ L.Ed.2d ____ (2004), we find no merit. Defendant claims that his extended term was illegal and a violation of his constitutional rights. The extended term enhancement was based on defendant's criminal history as a persistent offender. Id. at 2536. See State v. Dixon, 346 N.J. Super. 126, 139-41 (App. Div. 2001), certif. denied, 172 N.J. 181 (2002).
This case falls squarely within the recidivism exception to Blakely and does not require any further jury finding for enhancement purposes. Defendant conceded that he was a persistent offender. There is no constitutional infirmity. See also Apprendi v. New Jersey, 530 U.S. 466, 488, 120 S.Ct. 2348, 2361-62, 147 L.Ed.2d 435, 454 (2000). We reaffirm our ruling in State v. Dixon, supra.
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