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).
[Note: This is a companion case to State v. Natale and State v. Abdullah, also decided today.]
A jury convicted Allan Franklin of second-degree manslaughter and acquitted him of various gun-related offenses. Based on the trial evidence, the sentencing judge determined that Franklin committed the crime with a handgun. Because that finding made Franklin a second-time offender under the Graves Act, the judge sentenced him to an extended term of twenty years. As a result, Franklin received a sentence twice as long as the maximum ten-year sentence authorized for a second-degree crime.
While Franklin's appeal was pending before the Appellate Division, the United States Supreme Court decided Apprendi v. New Jersey. Based on Apprendi, Franklin submitted on appeal that his sentence was not authorized by the jury verdict and therefore was unconstitutional. In particular, he argued that the trial court found him to be in possession of a gun by a preponderance of the evidence, a fact that the jury had not found, to justify an extended term sentence. The Appellate Division affirmed Franklin's sentence. We denied Franklin's petition for certification.
Franklin filed a petition for post-conviction relief (PCR), raising the same Apprendi claim he had argued on direct appeal. The PCR court denied relief and the Appellate Division affirmed the denial.
This Court granted Franklin's petition for certification.
HELD: The second-offender provision of the Graves Act, which permits the imposition of an extended term based on judicial fact-finding by a preponderance of the evidence, violates a defendant's Sixth Amendment right to trial by jury and Fourteenth Amendment right to due process. Franklin's sentence is vacated and the matter is remanded to the trial court for resentencing. Pipeline retroactivity is to be applied to defendants with cases on direct appeal as of the date of this decision and to those defendants who raised Apprendi claims at trial or on direct appeal.
1. We first address the State's argument that Franklin is procedurally barred because his Apprendi claim was raised and rejected on direct appeal. Ordinarily, such a prior adjudication upon the merits would be conclusive, and we would dismiss the claim resurrected in the PCR proceedings. This case falls into the very limited exception carved out of Rule 3:22-5. It raises a legitimate and important constitutional question concerning whether judges may determine facts that will authorize an extended term under the Graves Act. The issue undoubtedly will arise in other cases and any delay in addressing it disserves the public interest. We therefore will not bar consideration of the issue on procedural grounds. (pp. 12-13)
2. Under the Graves Act's first-time offender provision, if the court finds that a defendant committed one of the designated offenses, e.g., manslaughter, while possessing or using a firearm, the court is obligated to sentence the defendant to a period of parole ineligibility. Under the repeat-offender provision, the court is required to sentence a person convicted of a second Graves Act offense to both an extended term and a parole disqualifier. An extended term subjects a second-time Graves Act offender to a sentence one degree higher and a parole ineligibility term. Under the Graves Act scheme, the sentencing judge, not the jury, makes the finding of whether the defendant possessed or used a firearm while committing the offense. The court is guided by the lower preponderance of the evidence standard and may rely on any relevant evidence, including evidence that would be inadmissible at trial. (pp. 13-16)
3. We now measure the repeat-offender provision of the Graves Act against the constitutional guarantees of due process under the Fourteenth Amendment and right to trial by jury under the Sixth Amendment. All elements of an offense must be charged in an indictment, submitted to a jury, and proved beyond a reasonable doubt. In recent years, the United States Supreme Court has searched to find a principled way to distinguish between an element of an offense to be decided by a jury and a sentencing factor to be decided by a judge. In Apprendi, the Court devised a formula to distinguish between an element of an offense and a sentencing factor: Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. (pp. 17-19)
4. In many ways, Apprendi, which examined New Jersey's "hate crime" statute, mirrors the case before us. In all relevant respects, the second-offender provision of the Graves Act is a carbon copy of the hate crime statute declared unconstitutional in Apprendi. Like the hate crime statute, the Graves Act permits judicial fact-finding by a preponderance of the evidence to turn a second-degree offense into a first-degree offense. Like motive under the hate crime statute, possession of a gun under the Graves Act is the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict. (pp. 19-21)
5. In Blakely v. Washington, the Supreme Court noted that in a system that punishes burglary with a ten-year sentence with another thirty added for use of a gun, the burglar who enters a home unarmed is entitled to no more than a ten-year sentence by reason of the Sixth Amendment jury trial right. Similarly, in this case, the Code of Criminal Justice punishes passion/provocation manslaughter with a ten-year maximum sentence with an added ten-year maximum term for possession or use of a gun. As such, Franklin is entitled to no more than the ten-year sentence authorized by the jury verdict. (pp. 21-22)
6. The second-offender provision of the Graves Act removed from the jury's consideration a critical fact -- whether Franklin was armed. That fact was the functional equivalent of an element of a first-degree offense. The judge's finding that Franklin used a gun in the commission of the crime resulted in the imposition of a sentence beyond the range authorized by the jury verdict in violation of the Sixth and Fourteenth Amendments. (p. 22)
7. There was overwhelming, and perhaps indisputable, evidence that Franklin used a handgun when he killed Warmack. Had the jury found that Franklin used or possessed the gun while committing manslaughter, there is no question that the extended term imposed by the sentencing court would have complied with the Sixth Amendment. Even overwhelming evidence of guilt is not a substitute for failing to charge an element of an offense. On appellate review, we cannot find that the State satisfied an element of an offense that was never presented to the jury. It is important to remember that a jury, once properly charged, has the power to disregard even overwhelming proof of culpability and either acquit entirely or convict of a lesser-included offense. (pp. 23-25)
8. We reject the argument that Franklin's trial admissions and his attorney's trial concessions were a sufficient basis for the judge to impose an extended Graves Act sentence. A court should not engage in an after-the-fact review of the record to determine whether the State's evidence fits an offense with which defendant was never charged. In summarizing its holding, the Supreme Court stated in Blakely that the relevant statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. The opinion's references to the use of a defendant's admissions to support enhanced sentencing were limited to the factual contexts in which Blakely and Apprendi, arose: a defendant's guilty plea. For the reasons we detailed earlier, the State must charge the defendant with each element it intends to prove, and the jury must be satisfied beyond a reasonable doubt that each element has been proven. In this case, possession or use of a gun, in effect, was the functional equivalent of an element of a first-degree crime of passion/provocation manslaughter while armed. (pp. 25-29)
9. Our holding in this case does not prevent a court from imposing a Graves Act minimum parole ineligibility term within the sentencing range authorized by the verdict. As always, a defendant's admissions at trial may be considered by the court in identifying and weighing aggravating and mitigating factors. (pp. 29-30)
10. We will conform the Graves Act to the Constitution in the way we believe the Legislature would have intended under the present circumstances. In the future, if the State intends to seek an extended term under the Graves Act, it must obtain an indictment charging possession or use of the gun in the commission of one of the designated crimes and then submit the charge to the jury. That remedy not only complies with the dictates of Apprendi, but also best achieves the Legislature's purpose in enacting the Graves Act. (p. 30)
11. We recognize today's holding as a new rule of law, compelled by Apprendi. For the same reasons detailed in Natale II, we apply pipeline retroactivity to defendants with cases on direct appeal as of the date of this decision and to those defendants who raised Apprendi claims at trial or on direct appeal. (p. 31)
12. The second-offender provision of the Graves Act, which permits the imposition of an extended term based on judicial fact-finding by a preponderance of the evidence, violates a defendant's Sixth Amendment right to trial by jury and Fourteenth Amendment right to due process. Franklin was sentenced to a twenty-year extended term with a ten-year parole disqualifier under the Graves Act. We reverse, vacate that sentence, and remand to the trial court for resentencing in accordance with this opinion and our opinion in Natale II. (p. 31)
The decision below is REVERSED and the matter is REMANDED to the trial court for resentencing.
CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, WALLACE and RIVERA-SOTO join in JUSTICE ALBIN's opinion.
The opinion of the court was delivered by: Justice Albin
A jury convicted defendant Allan Franklin of second-degree passion/provocation manslaughter and acquitted him of various gun-related offenses. Based on the trial evidence, the sentencing judge determined that defendant committed the crime with a handgun, a fact not specifically found by the jury. Because that finding made defendant a second-time offender under the Graves Act, N.J.S.A. 2C:43-6(c), (d), the judge sentenced him to an extended term of twenty years. As a result of the judge's finding that defendant committed the crime while armed with a gun, defendant received a sentence twice as long as the maximum ten-year sentence authorized for a second-degree crime. The Appellate Division affirmed the sentence.
Defendant claims that the imposition of a sentence beyond the statutory maximum based on judicial factfinding violated his Sixth Amendment right to trial by jury and Fourteenth Amendment right to due process. In particular, he claims that the sentence was in derogation of Apprendi v. New Jersey, which held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed. 2d 435, 455 (2000).
We agree and now reverse.
At a jury trial, the evidence revealed that on May 26, 1997, defendant killed Isiac Warmack, the paramour of his estranged wife, Anne Franklin. Warmack's death was the culmination of a violent love triangle. The events that foreshadowed the killing date back to April 1993, when defendant threatened and pointed a gun at Warmack and Anne who were seated in a van. Later that month, defendant slipped into his wife's apartment through a window and entered her bedroom, put a knife to her throat, and threatened to kill her. Those incidents led to criminal charges and a guilty plea, resulting in defendant's imprisonment. After his release from prison in 1995, defendant maintained a tumultuous relationship with Anne. From September 1996 until February 1997, they lived together with their children, Allana and Allan, Jr., in Carteret, until Anne ordered defendant to leave. Anne then continued an intimate relationship with Warmack, who occasionally slept over at the Carteret house.
On the night of May 25, 1997, defendant called the house and spoke with eleven-year-old Allana, inquiring whether Warmack was there. Allana told him that Warmack was not in the house. Unpersuaded, defendant told his daughter that he was "going to get" Warmack. Allana did not relay ...