On certification to the Superior Court, Appellate Division, whose opinion is Reported at 373 N.J. Super. 226 (2004).
(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. Abdullah and State v. Franklin, also decided today.]
In Blakely v. Washington, the United States Supreme Court ruled that a sentence based on judicial fact-finding that exceeds the maximum sentence authorized by either a jury verdict or a defendant's admissions at a plea hearing runs afoul of the Sixth Amendment right to trial by jury. That pronouncement has called into question the constitutionality of sentencing schemes across the nation, including the constitutionality of New Jersey's sentencing scheme.
Michael Natale and his girlfriend Ginamarie Lerro lived together in Runnemede, New Jersey. In January 1999, believing that Lerro intended to leave him for her estranged husband, Natale brutally beat her. A jury found Natale guilty of aggravated assault and other charges. In imposing sentence, the trial court found the aggravating factors outweighed the mitigating and sentenced Natale to a nine-year prison term for aggravated assault, subject to the No Early Release Act (NERA). Under NERA, Natale was required to serve a period of seven-and-one-half years without parole eligibility. Natale also received five-year terms on two other convictions, those sentences running consecutive to the assault sentence. Natale's aggregate sentence was a fourteen-year prison term with a seven-and-one-half-year NERA parole disqualifier.
The Appellate Division vacated the NERA parole disqualifier. This Court affirmed and remanded, giving the State the option of letting a jury decide whether Natale caused serious bodily injury or foregoing the NERA parole disqualifier. On remand, the State elected not to pursue the NERA parole disqualifier. At resentencing, the court enumerated the same aggravating and mitigating factors that it found in the first sentencing proceeding. The court again imposed a nine-year sentence on the second-degree aggravated assault conviction and added a four-andone-half-year parole disqualifier, leaving Natale with an aggregate sentence of fourteen years, with a four-and-one-half-year parole ineligibility period.
The Appellate Division determined that the sentences imposed by the trial court violated Natale's Sixth Amendment right to trial by jury and remanded to the trial court.
We granted the State's petition and Natale's cross-petition.
HELD: A sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction violates defendant's Sixth Amendment jury trial guarantee. The penal code's presumptive terms are eliminated. Judges will sentence defendants within the statutory range for the offense after weighing the aggravating and mitigating factors.
1. Many modern legislative sentencing schemes place a ceiling on the sentence that can be imposed based on the jury verdict alone but allow for judicial fact-finding to increase the sentence up to the maximum allowed by the statute. Such schemes appear to be in conflict with the Constitution. A recent series of United States Supreme Court decisions limits the power of a judge to impose a sentence beyond the range allowed by the jury's verdict. (pp. 12-13)
2. In Apprendi v. New Jersey, the Supreme Court examined New Jersey's hate crime statute, which allowed a judge to impose an enhanced sentence based upon a judicial finding by a preponderance of the evidence. The Court held that 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. 13-15)
3. In Blakely v. Washington, the Supreme Court refined Apprendi by clarifying what constituted the statutory maximum for sentencing purposes. In Blakely, the defendant admitted to the elements of second-degree kidnapping. Under Washington's sentencing system, second-degree kidnapping was punishable by a term of imprisonment not to exceed ten years. The State recommended a sentence within the standard range for second-degree kidnapping with a firearm -- forty-nine to fifty-three months. Under Washington's law, however, a judge may impose a sentence above the standard range if he finds substantial and compelling reasons justifying an exceptional sentence. The judge determined that the defendant had acted with deliberate cruelty and sentenced defendant to a term of ninety months. The trial court's fact-finding was neither admitted by the defendant nor held by a jury. The Supreme Court defined the statutory maximum for Apprendi purposes as the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant and held that Washington's sentencing procedure violated the Sixth Amendment. (pp. 16-18)
4. The road from Blakely led directly to United States v. Booker. In Booker, the Supreme Court struck down those portions of the Federal Sentencing Guidelines (Guidelines) that authorized judges, based on their own fact-findings, to impose sentences exceeding those allowed by the jury verdict alone. In Booker, the trial judge found that the defendant possessed an additional 566 grams of crack cocaine and that he was guilty of obstructing justice. Based on those findings, the judge was compelled by law to impose a sentence between thirty years and life imprisonment. The judge imposed a thirty-year term -- a sentence over eight years longer than the maximum sentence authorized by the jury verdict. The Court held that defendant's sentence violated his Sixth Amendment jury trial right. (pp. 19-21)
5. In Booker, to bring the Guidelines into conformity with the Sixth Amendment, the Court excised the provisions that made the Guidelines mandatory, converting the Guidelines into an indeterminate sentencing scheme in which the maximum sentence is the top of the range of the applicable criminal statute. Under the new advisory Guidelines, district courts are required to consider Guidelines ranges and are permitted to tailor the sentence in light of other statutory concerns as well. The holding in Booker was applied to all cases on direct review. (pp. 22-25)
6. We can distill the following principles from Apprendi, Blakely, and Booker. A judge is authorized to impose a sentence within the range allowed by the jury verdict or by the defendant's admissions at a guilty plea after waiving his right to jury trial. The judge also is authorized to sentence the defendant within a range consistent with the defendant's stipulation to judicial fact-finding or with the defendant's prior convictions. Aside from the recidivism exception, the Sixth Amendment prohibits a judge from imposing a sentence greater than that allowed by the jury verdict or by the defendant's admissions at a plea hearing. (pp. 25-26)
7. The New Jersey Code of Criminal Justice requires the court to impose the presumptive term unless the preponderance of aggravating and mitigating facts set forth in the law weighs in favor of a higher or lower term within the statutory range for a given offense. Thus, in considering the applicability of the statutory aggravating and mitigating factors, the presumptive term is the pivot point for moving a sentence up or down within the statutory range. Our Code provisions make clear that the maximum sentence that can be imposed based on a jury verdict or guilty plea is the presumptive term. Accordingly, the statutory maximum for Blakely and Booker purposes is the presumptive sentence. Because the Code's system of presumptive sentencing allows judges to sentence beyond the statutory maximum based on their finding of aggravating factors, that system is incompatible with the holdings in Apprendi, Blakely, and Booker. We hold that the Code's system of presumptive term sentencing violates the Sixth Amendment's right to trial by jury. (pp. 27-30)
8. The dominant goal of the Code is uniformity in sentencing. The constitutional remedy that will best preserve the major elements of our sentencing code and cause the least disruption to our criminal justice system is eliminating the presumptive terms. Without presumptive terms, the statutory maximum authorized by the jury verdict or the facts admitted by a defendant at his guilty plea is the top of the sentencing range for the crime charged. (pp. 30-34)
9. Reason suggests that when the mitigating factors preponderate, sentences will tend toward the lower end of the range, and when the aggravating factors preponderate, sentences will tend toward the higher end of the range. In the past, defendants with long criminal records have been sentenced toward the upper part of the sentencing range. They should not anticipate a departure from that practice with the presumptive terms gone. (p. 35)
10. Sentencing decisions will continue to be reviewed under our established appellate sentencing jurisprudence. Appellate courts must determine whether the sentencing court followed the guidelines and specified the aggravating or mitigating factors based on competent credible evidence. If the sentencing court complies with those legal principles, then the appellate court may not overturn a sentence unless the application of the guidelines to the facts of the case makes the sentence clearly unreasonable so as to shock the judicial conscience. (p. 36)
11. Both the state and federal constitutions forbid the legislative branch from passing ex post facto laws. In this case there was no legislative alteration of the sentencing code and today's holding can hardly be characterized as unexpected or indefensible. Retroactive application of the remedy in this case does not run afoul of the state or federal prohibitions against ex post facto laws. (pp. 38-41)
12. Today's holding is a new rule of law. Having determined that, we look to three factors in deciding the extent of its retroactive application. Pipeline retroactivity -- applying our holding to defendants with cases on direct appeal as of the date of this decision and to those defendants who raised Blakely claims at trial or on direct appeal -- best balances principles of fairness and repose. (pp. 42-45)
13. We will order a new sentencing hearing in each affected case, based on the record at the prior sentencing. The trial court must determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence. Because the new hearing will be based on the original sentencing record, any defendant challenging his sentence on Blakely grounds will not be subject to a sentence greater than the one already imposed. (pp. 46-47)
The Appellate Division decision is AFFIRMED in part and REVERSED in part and the matter is REMANDED to the trial court for proceedings consistent with this opinion.
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
In Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004), the United States Supreme Court ruled that a sentence based on judicial factfinding that exceeds the maximum sentence authorized by either a jury verdict or a defendant's admissions at a plea hearing runs afoul of the Sixth Amendment right to trial by jury. That seemingly simple pronouncement has called into question the constitutionality of sentencing schemes across the nation.
Under New Jersey's Code of Criminal Justice, a defendant cannot be sentenced to a period of imprisonment greater than the presumptive term for the crime he committed, unless the judge finds one or more statutory aggravating factors. See N.J.S.A. 2C:44-1(f)(1). The Code does not require that a judicial finding of an aggravating factor be encompassed by the jury verdict or that it be based on an admission by the defendant at a plea hearing. We now hold that a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee. To bring the Code into compliance with the Sixth Amendment in a way that the Legislature would have intended, we are compelled to eliminate presumptive terms from the sentencing process.
Hereafter, without reference to presumptive terms, judges will sentence defendants within the statutory range after identifying and weighing the applicable mitigating and aggravating factors.
Defendant Michael Natale and his girlfriend Ginamarie Lerro lived together in an apartment in Runnemede, New Jersey. On January 10, 1999, believing that Lerro intended to leave him for her estranged husband, defendant exploded in a rage of violence in their apartment and brutally beat her over the course of an hour. Defendant struck Lerro in the head with a stereo speaker and candleholder, rammed her head into a wall, and ripped out clumps of her hair. As Lerro struggled to escape, defendant kicked and punched her in the head, face, and upper body, and repeatedly threatened to kill her.
As Lerro crawled down the hallway toward the front door, a neighbor who had overheard the violence knocked on it. Lerro begged the neighbor not to leave, telling him that defendant was going to kill her. She then somehow managed to slip past defendant. Once out the front door, she fell to her knees and clung to the neighbor's leg. Defendant pulled Lerro by the hair until she finally let go and threatened the neighbor, who then retreated to his apartment. Defendant continued to punch Lerro in the face, stopping only to rip a storm door off its hinges and pummel her with it.
With no let-up to the assault, defendant threw Lerro, who was wearing only shorts and a sweatshirt, onto the snow-covered ground and then dragged her by the hair, face down on the concrete sidewalk. Defendant bashed Lerro's face into a nearby wooden pillar and ripped off her clothing, exposing her to the bitter cold as she drifted in and out of consciousness. In the course of dragging Lerro back into the apartment, defendant smashed her head into the door and, once inside, beat her in the face and head with opera glasses and a ceramic statue, all the while threatening to kill her.
When the police eventually arrived, Lerro staggered from the apartment, bleeding and frantic. She was taken by ambulance to the hospital, where she was diagnosed as suffering from head trauma, fluid in her sinus, multiple contusions, and abrasions. The residual effects of the prolonged, ...