On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 1217-07-00.
Before Judges Skillman, Parrillo*fn1 and Grall.
The opinion of the court was delivered by: Grall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued January 28, 2005
The State appeals from the sentence imposed following defendant Gregory Johnson's conviction for reckless manslaughter, in violation of N.J.S.A. 2C:11-4b(1), which is a crime of the second degree. Defendant was sentenced to a term appropriate for a crime of the third degree, N.J.S.A. 2C:44-1f(2), and did not receive the eighty-five percent parole disqualification term and the three-year parole supervision term required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
The case requires us to consider whether the next-business day rule applies in computing the ten-day, statutory period within which the State may file a notice of appeal from a discretionary, downgraded sentence pursuant to N.J.S.A. 2C:44-1f(2). Our jurisdiction to address the State's appeal from a discretionary sentence is dependent upon the State's timely filing. State v. Watson, 183 N.J. Super. 481, 484 (App. Div.), certif. denied, 91 N.J. 530 (1982). We conclude that the next business-day rule applies and that we have jurisdiction to address the State's challenge to the discretionary sentence, which is dependent upon N.J.S.A. 2C:44-1f(2),*fn2 as well as the State's challenge to the illegal sentence, which is not dependent upon statutory authorization, State v. Parolin, 339 N.J. Super. 10, 13-14 (App. Div. 2001), rev'd on other grounds, 171 N.J. 223, 227 (2002) (rejecting defendant's challenge to the State's appeal for reasons stated by this court). Because a NERA sentence is required, and defendant's sentence is illegal, N.J.S.A. 2C:43-7.2, we reverse and remand for imposition of a NERA sentence. Because the trial judge did not address all the statutory criteria authorizing a"downgraded" sentence, N.J.S.A. 2C:44-1f(2), we remand for reconsideration under the proper standards.
On January 11, 2000, defendant's brother Vincent Johnson and Joseph Alexander argued and fought outside defendant's apartment. A crowd gathered. Defendant, who was in his apartment, heard noise, looked outside and saw the fight. He grabbed a baseball bat, went out and hit Alexander in the head with the bat. On January 20, 2000, Alexander died as a result of the injury he sustained.
A grand jury indicted defendant for murder, in violation of N.J.S.A. 2C:11-3, for possessing a weapon, the baseball bat, under circumstances not manifestly appropriate for its use, in violation of N.J.S.A. 2C:39-5d, and for possessing the weapon with the purpose of using it unlawfully, in violation of N.J.S.A. 2C:39-4d. Defendant was tried to a jury and convicted of the weapons offenses and reckless manslaughter, a lesser included offense of murder.
On January 29, 2004, the trial judge denied the State's motion to impose the eighty-five percent parole disqualification term and the special three-year parole supervision terms required by NERA. N.J.S.A. 2C:43-7.2 (as adopted by L. 1997, c. 117, § 2). She concluded that NERA did not apply because the jury had not been asked to determine that this manslaughter was a"violent crime" within the meaning of the law. Ibid.
On March 11, 2004, the judge sentenced defendant. The judge merged defendant's convictions for weapons offenses with his conviction for manslaughter. She considered the statutory aggravating and mitigating factors. She found one aggravating factor, the need to deter defendant and others from violating the law. N.J.S.A. 2C:44-1a(9). She found four mitigating factors: defendant had otherwise led a law-abiding life, N.J.S.A. 2C:44-1b(7); his conduct was the result of circumstances unlikely to reoccur, N.J.S.A. 2C:44-1b(8); defendant's character and attitude indicate that it is unlikely he will commit another offense, N.J.S.A. 2C:44-1b(9); and, defendant is particularly likely to respond affirmatively to probationary treatment, N.J.S.A. 2C:44-1b(10). The judge was"satisfied" that the mitigating factors"substantially" outweighed the aggravating and imposed the presumptive term for a third degree crime, four years. She did not impose the NERA parole disqualification and parole supervision terms. Defendant was incarcerated following imposition of sentence.
On March 18, 2004, the judge entered an order granting the State's application to stay defendant's sentence to permit an appeal pursuant to N.J.S.A. 2C:44-1f(2). She denied bail pending appeal. On Monday, March 22, 2004, the State filed its notice of appeal. Defendant did not apply to this court for bail pending appeal. R. 2:9-4. Judgment of conviction was entered on March 24, 2004, and defendant was released on parole on January 10, 2005.
We agree with the State that the judge was required to impose NERA sentences and that defendant's sentence is illegal because it does not include the provisions mandated by NERA, N.J.S.A. 2C:43-7.2. We apply the NERA provisions in effect on the date of the crime. See State v. Parolin, 171 N.J. 223, 233 (2002). That statute required NERA sentences for any"violent crime" of the first or second degree, N.J.S.A. 2C:43-7.2a (as adopted by L. 1997, c. 117, § 2, effective until June 29, 2001, when amended by L. 2001, c. 129, § 1). The statute defined"violent crime" to include"any crime in which the actor causes death." Ibid. As we held in State v. Newman, 325 N.J. Super. 556, 560-63 (App. Div. 1999), certif. denied, 163 N.J. 396 (2000), manslaughter, which requires proof that the defendant recklessly caused the death of another, meets that definition. See N.J.S.A. 2C:11-2; N.J.S.A. 2C:11-4b(1).
The judge erred in concluding that a separate jury finding on whether this manslaughter was a"violent crime" was required under the Supreme Court's decision in State v. Johnson, 166 N.J. 523 (2001). In Johnson, the Court held that a post-trial hearing in which a judge finds a NERA predicate, see N.J.S.A. 2C:43-7.2e (deleted by L. 2001, c. 129, § 1), is not constitutionally adequate and"that the factual predicate for a NERA sentence must be found by a jury under the'beyond a reasonable doubt' standard." Johnson, supra, 166 N.J. at 543-44. A jury verdict of guilty on a charge of manslaughter includes that finding.
Following Johnson, Rule 3:19-1 was amended to implement the Court's holdings in that case. The amended rule, which was in place when defendant was tried, requires use of a written verdict sheet"in those cases in which the jury must find the factual predicate [for NERA sentences]... unless that factual predicate is an element of the offense." R. 3:19-1(b) (emphasis added); see Pressler, Current N.J. Court Rules, comment on R. 3:19-1(b) (2005). Where the verdict necessarily includes the factual predicate, no separate finding is required. See State v. Thomas, 166 N.J. 560, 570-71 (2001); Johnson, supra, 166 N.J. at 545, 548-49; State v. Natale, 348 ...