On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Ind. No. 98-11-1570.
The opinion of the court was delivered by: Falcone, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Before Judges Kestin, Lefelt and Falcone.
In this appeal, we are called upon to determine whether a prior conviction for second-degree robbery could serve as one of the two required predicate offenses for imposition of sentence under N.J.S.A. 2C:43-7.1a, part of the Persistent Offender Accountability Act (the Act), popularly known as the "Three Strikes and You're In" law. N.J.S.A. 2C:43-7.1a provides, in pertinent part, that a person convicted of robbery under N.J.S.A. 2C:15-1 or first-degree aggravated sexual assault during the commission or attempted commission of a robbery, "who has been convicted of two or more crimes that were committed on prior or separate occasions, regardless of the dates of the convictions," under any of the statutes enumerated, "shall be sentenced to a term of life imprisonment by the court, with no eligibility for parole." Because we are satisfied that the two earlier convictions or "strikes" referenced in that subsection of the Act must be for crimes of the first-degree in order for the enhanced punishment mandated by the statute to be imposed, we vacate the sentence imposed under the Act.
In November 1998, a Middlesex County Grand Jury returned an indictment charging defendant, Mitchell R. Jordan, with first-degree kidnapping, N.J.S.A. 2C:13-1b (count one); first-degree aggravated sexual assault upon E.B. during the commission or attempted commission of a robbery, N.J.S.A. 2C:14-2a (count two); first-degree aggravated sexual assault upon E.B. during the commission or attempted commission of a kidnapping, N.J.S.A. 2C:14-2a (count three); first-degree aggravated sexual assault upon E.B. during the commission or attempted commission of a burglary, N.J.S.A. 2C:14-2a (count four); second-degree robbery, N.J.S.A. 2C:15-1 (count five); second-degree burglary, N.J.S.A. 2C:18-2 (count six); third-degree endangering the welfare of a child (fourteen-year-old E.B.), N.J.S.A. 2C:24-4a (count seven); third-degree aggravated criminal sexual contact with E.B., N.J.S.A. 2C:14-3a (count eight); and third-degree terroristic threats, N.J.S.A. 2C:12-3a (count nine).
As a result of an unsuccessful attempt to resolve this indictment, as well as a number of other unrelated indictments, by way of a negotiated plea agreement, this matter was given a trial date of June 3, 2002. On that date, defendant decided to enter pleas of guilty to all counts of the indictment. During the plea proceedings, the judge advised defendant that the State could request that he be sentenced as a persistent offender, which meant that he could be sentenced to life imprisonment without the possibility of parole. The judge accepted the pleas of guilty to counts two through nine, but advised that he would reserve judgment on count one until sentencing because he was not sure if defendant had provided an adequate factual basis as to that charge. Since the court was already in possession of a presentence report, which had been prepared in connection with the earlier negotiated plea agreement that was vacated on defendant's motion to withdraw, the sentence was scheduled for later in the week. That afternoon, the State prepared its motion to have defendant sentenced as a persistent offender and filed the motion papers with the court. The defendant was served with the motion papers the next day.
On June 6, 2002, after hearing the arguments of counsel, the court concluded there was no adequate factual basis to accept defendant's plea of guilty to the kidnapping charge (count one) and "the count dealing with the commission of an aggravated sexual assault during the commission of the kidnapping" (count three). These counts were inactivated pending appeal. Prior to imposing sentence on the remaining counts, the court heard argument from counsel on the State's motion and concluded that defendant would be sentenced under N.J.S.A. 2C:43-7.1a, since he had been convicted of robbery on two prior occasions, i.e., first-degree in November 1988 and second-degree in January 2000.
After merging counts five, six, seven, eight and nine with counts two and four, the court sentenced defendant to an extended term of life imprisonment without parole on count two, a concurrent extended term of life imprisonment without parole on count four, and community supervision for life under N.J.S.A. 2C:43-6.4a. In addition, defendant was ordered to comply with the registration and notification provisions of N.J.S.A. 2C:7-3 and N.J.S.A. 2C:7-7. All required fines and penalties were imposed.
Because the sentencing judge had not been able to find legal authority for using a second-degree robbery conviction as a predicate offense for the sentence he had imposed, he went on to make findings "regarding what the sentence of the defendant would have been had he not been eligible to be sentenced to life imprisonment without parole." In this regard, and after reviewing defendant's record and making specific findings, the court stated it would have exercised discretion and sentenced defendant to "a term of life imprisonment with a period of parole ineligibility of 25 years." See N.J.S.A. 2C: 43-7.1b(1), N.J.S.A. 2C:43-7a(1), and N.J.S.A. 2C:43-7b. Defendant has not argued that this "alternative" sentence is impermissible.
On appeal, defendant raises the following argument:
THE TRIAL COURT ERRED IN SENTENCING MR. JORDAN TO A LIFE SENTENCE WITHOUT PAROLE PURSUANT TO N.J.S.A. 2C:43-7.1a BECAUSE ONLY FIRST DEGREE CRIMES MAY BE THE ...