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).
On November 14, 2000, the Clifton police stopped Maurice Pierce in a stolen motor vehicle. The police found a gun that had been used three days earlier in a robbery. Pierce was indicted for first-degree robbery, third-degree unlawful possession of a weapon, and second-degree possession of a weapon for an unlawful purpose. On October 30, 2002, the jury convicted Pierce on all three counts. In a separate trial, Pierce also was convicted of second-degree possession of a weapon by a prohibited person.
The State moved to have Pierce designated as a persistent offender and sentenced to a discretionary extended term pursuant to N.J.S.A. 2C:44-3. Consistent with State v. Dunbar, 108 N.J. 80 (1987), the trial court performed a four-step analysis. First, the court determined factually that Pierce's seven prior adult convictions rendered him eligible for persistent offender status. Second, the court examined Pierce's prior convictions and concluded that he had a propensity toward further persistent criminal conduct. Third, the court evaluated the aggravating and mitigating factors for the purpose of establishing a base term. Finally, the court analyzed whether to impose a period of parole ineligibility. As a result, the trial court sentenced Pierce to an aggregate term of forty years with a sixteen-year parole ineligibility component. The sentence was ten years below the presumptive fifty years for a first-degree extended term.
Pierce appealed. The Appellate Division affirmed his convictions and sentence. The Court granted Pierce's petition for certification, limited solely to the issue of his extended term sentence.
HELD: In the context of a discretionary extended-term sentencing statute, the Court holds that a sentencing court does not engage in impermissible fact-finding when it assesses a prior record of convictions and determines that a defendant is statutorily eligible for an extended term as a persistent offender. In light of decisions of the United States Supreme Court, however, the Court is compelled to modify its prior direction to sentencing courts in respect of the discretionary extended-term sentencing process.
1. The persistent offender statute grants the sentencing court discretion to impose an extended term when the statutory prerequisites are present. There is no Sixth Amendment violation in the sentencing court's consideration of objective facts about a defendant's prior convictions, such as their dates, the age of the defendant when the crimes were committed, and the elements and degrees of the offenses to determine whether the defendant qualifies as a "persistent offender." The Court, however, fashioned additional requirements in State v. Dunbar to serve as a guide for sentencing courts engaged in discretionary extended-term sentencing. (pp. 6-10)
2. In Dunbar, the four-step process for determining whether a defendant qualified for sentencing as a persistent offender was supplemented by the Court's imposition of a standard that required the imposition of an extended term when necessary for the protection of the public. Pierce argues that the "protection of the public" finding must be made a jury. (pp. 10-12)
3. The Court's decision in Dunbar predated decisions of the United States Supreme Court that have substantially revised sentencing procedures. The "need to protect the public" finding does not fit within the limits of the prior-conviction exception recognized by the United States Supreme Court. The Court must restate our sentencing procedures in light of those decisions. The determination of the length of sentence imposed on a defendant and whether that sentence should be within the permissibly enhanced range are separate and distinct from the sentencing court's determination of the top of the entire range of sentences to which the defendant is potentially subject as a persistent offender. On an application for a discretionary enhanced-term sentence, the trial court must first review the defendant's criminal record of convictions to determine whether he or she is statutorily eligible. If the defendant is eligible, the top of the range of sentences applicable to the defendant becomes the top of the enhanced range. Whether the court chooses to use the full range of sentences is a function of its assessment of the aggravating and mitigating factors, including consideration of the deterrent need to protect the public. (pp. 12-18)
4. The range of sentences available for imposition under this persistent offender statute starts at the minimum of the ordinary-term range and ends at the maximum of the extended-term range. The Court does not make mandatory a defendant's sentencing within the enhanced range. It merely acknowledges that the permissible range has expanded. There will not be a presumptive starting point for a court's analysis within the broadened range. The sentencing court still has the judgment to impose a sentence that is subject to reasonableness and the existence of credible evidence in the record to support the court's finding of aggravating and mitigating factors and the court's weighing and balancing of the factors found. On appellate review, the court will apply an abuse of discretion standard to the sentencing court's explanation for its decision within the entire sentencing range. (pp. 18-20)
5. The Court remands the matter for resentencing, but only in respect of reconsideration of the appropriate sentence for defendant Pierce within the expanded range of sentences available from the bottom of the ordinary-term to the top of the extended-term range. The sentencing court must reconsider the applicable aggravating and mitigating factors and impose a sentence consistent with this opinion. This approach is the same as that used in State v. Natale. (pp. 20-24)
6. Contrary to the assertions of the Justices who are dissenting and concurring, in part, the resentencing remedy does not subject Pierce to a retroactive "new" statutory maximum that should be imposed only by a jury under ex post facto principles. The "protection of the public" finding in Dunbar never went to a persistent offender's eligibility for a discretionary extended-term sentence. The requirement was introduced for a distinct purpose and is separate and apart from the criteria necessary for the identification of the "top" of the range of sentences available for defendants. The Court notes that Pierce may benefit from his resentencing because the court may consider the full range of sentences available. In any event, Pierce cannot be subjected to a sentence in excess of the one previously imposed. (pp. 24-25)
ALBIN, J., dissenting in part and concurring in part, finds that in removing from the extended term statute the requirement imposed in State v. Dunbar that a "protection of the public" finding be made before the imposition of an extended term, the Court's after-the-fact amendment to the extended term statute violates not only this defendant's Sixth Amendment jury trial right but also the ex post facto provisions of the United States and New Jersey Constitutions. By its decision, the Court has transformed a discretionary extended term statute into something akin to the mandatory extended term drug statute. The prospective application of the majority's remedy comports with the Sixth Amendment and will leave intact the legislative goal of uniform sentencing under the Criminal Code. He therefore concurs in the majority's remedy, but only to the extent it is applied prospectively.
The judgment of the Appellate Division in respect of defendant's sentence is REVERSED, and the matter is REMANDED to the Law Division for resentencing in accordance with the Court's opinion.
JUSTICE ALBIN, DISSENTING IN PART and CONCURRING IN PART, finds that in removing from the extended term statute the requirement imposed in State v. Dunbar that a "protection of the public" finding be made before the imposition of an extended term, the Court's after-the-fact amendment to the extended term statute violates not only this defendant's Sixth Amendment jury trial right but also the ex post facto provisions of the United States and New Jersey Constitutions. By its decision, the Court has transformed a discretionary extended term statute into something akin to the mandatory extended term drug statute. The prospective application of the majority's remedy comports with the Sixth Amendment and will leave intact the legislative goal of uniform sentencing under the Criminal Code. He therefore concurs in the majority's remedy, but only to the extent it is applied prospectively.
CHIEF JUSTICE PORITZ and JUSTICES ZAZZALI and RIVERA-SOTO join in JUSTICE LaVECCHIA's opinion. JUSTICE ALBIN has filed a separate opinion, dissenting in part and concurring in part, in which JUSTICE WALLACE joins. JUSTICE LONG did not participate.
The opinion of the court was delivered by: Justice LaVECCHIA
In the companion appeal of State v. Thomas, ___ N.J. ___ (2006), we held that a sentencing court may find as fact the existence of a prior conviction for purposes of determining a defendant's statutory eligibility for extended-term sentencing under a mandatory sentence-enhancing s떫溵. We found that the non-qualitative assessment involved in that fact-finding was permissible under Sixth Amendment principles set forth in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004).
In this appeal, we consider a challenge to a discretionary extended-term sentence. Defendant contends that his Sixth Amendment rights were violated by the judicial fact-finding involved in sentencing him as a persistent offender under N.J.S.A. 2C:44-3(a). We hold that a sentencing court does not engage in impermissible fact-finding when it assesses a prior record of convictions and determines that a defendant is statutorily eligible for a discretionary extended term as a persistent offender. Case law, however, has added to the requirements imposed on sentencing courts when engaging in discretionary extended-term sentencing. The additional fact-finding as described in State v. Dunbar, 108 N.J. 80 (1987), and State v. Pennington, 154 N.J. 344 (1998), established a sentencing procedure that allegedly operates inconsistently with the principles articulated in the Supreme Court's recent Sixth Amendment decisions. Accordingly, we are compelled to modify our prior direction to sentencing courts in respect of the discretionary extended-term sentencing process.
For his robbery of a victim at gunpoint, defendant Maurice Pierce was indicted for first-degree armed robbery, in violation of N.J.S.A. 2C:15-1; third-degree unlawful possession of a weapon without a permit, in violation of N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a). A jury found him guilty of all three counts and, in a separate trial, the jury found him also guilty of second-degree possession of a weapon by a prohibited person, in violation of N.J.S.A. 2C:39-7.
Defendant's conviction for first-degree armed robbery enabled the State to file a motion requesting that the trial court find defendant to be a persistent offender and sentence him to a discretionary extended term. See N.J.S.A. 2C:44-3 (conferring discretion on sentencing court to impose, on application made, extended-term sentence on persistent offender). The sentencing court applied the stepped analysis identified in Dunbar to determine whether to sentence defendant, as requested by the State, to a sentence within the discretionary extended-term range on the first-degree armed robbery conviction (Count One). The court initially examined whether the minimum statutory requirements for N.J.S.A. 2C:44- 3(a) sentencing were present (step one). The court found that defendant's age and the nature, number, and timing of his prior convictions rendered him eligible for persistent offender status. The finding was not disputed at the sentencing hearing. Defense counsel placed on the record defendant's concession that he met the statutory predicates because defendant, who was twenty-two years old when he committed the armed robbery and who was twenty-four years old at the time of sentencing, had seven prior adult indictable convictions, seven juvenile adjudications, and other juvenile charges that had been dismissed. The dates and temporal proximity of the convictions and adjudications in defendant's past were made part of the court records.
The court then turned to the three additional steps set forth in Dunbar. Examining defendant's adult prior convictions, which included burglary, eluding, possession of a handgun, and receiving stolen property, the court found that defendant had resisted efforts at reform and that he had a "propensity towards further persistent criminal conduct." Based on that assessment, the court concluded that there was a need to protect the public and that therefore a sentence within the extended-term range was appropriate (step two). The court then evaluated the aggravating and mitigating factors for purposes of establishing a base term (step three) and also analyzed whether to impose a period of parole ineligibility (step four).
As a result, the court imposed an extended sentence of forty years of incarceration, with a period of sixteen years of parole ineligibility.*fn1 Defendant's sentence was ten years below the presumptive sentence applicable to the extended range. See N.J.S.A. 2C:43-7(a)(2)(setting range for first-degree extended sentence between twenty years and life imprisonment) and 2C:44-1(f)(1)(establishing fifty years imprisonment as presumptive sentence for first-degree extended term).
After defendant's conviction and sentence were affirmed by the Appellate Division in an unpublished per curiam opinion, we granted his petition for certification, "limited solely to the issue of defendant's extended term sentence." State v. Pierce, 186 N.J. 241 (2005).
According to defendant, our present sentencing procedures for discretionary extended-term sentencing under the persistent offender statute violate the Sixth Amendment.*fn2 Based on the Supreme Court's decisions in Apprendi and Blakely, he argues that his Sixth Amendment rights are violated when a court, and not a jury, decides facts that determine whether he will be sentenced to a term of imprisonment that exceeds the maximum for the ordinary-term range otherwise applicable for his conviction. The question is whether any fact-finding, other than the fact of prior convictions, was necessary before the court could impose defendant's persistent-offender sentence.