On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 95-9-1197.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, A. A. Rodríguez and Collester.
We granted leave to appeal to decide whether a defendant who faced only a thirty year period of parole ineligibility for a murder committed in 1994, if he was not sentenced to death under our former death penalty complex repealed on December 17, 2007, can be sentenced to life-without-parole as a result of the statute which repealed capital punishment. We hold that he cannot, and affirm the order of the Law Division which so concluded.
Fortin was indicted for capital murder committed on August 11, 1994,*fn1 and the State sought the death penalty by filing a notice of aggravating factors. On direct appeal after Fortin's first trial, conviction, and imposition of the death sentence, the Supreme Court reversed and remanded for a new trial. State v. Fortin, 178 N.J. 540, 650 (2004) (Fortin II). The grand jury subsequently filed a supplemental indictment alleging that "[t]he murder was outrageously vile, horrible or inhuman in that it involved torture or an aggravated assault to victim" and "was committed while the defendant was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery and/or sexual assault." See former N.J.S.A. 2C:11-3c(4)(c) and (g) (as it read at the time of offense and prior to the amendment by L. 2007, c. 204); see also Fortin II, supra, 178 N.J. at 637-50. The supplemental indictment was returned in response to Fortin II on September 22, 2004.
At his retrial following an interlocutory appeal on issues relating to the admissibility of evidence, State v. Fortin, 189 N.J. 579 (2007) (Fortin III), defendant was again convicted of capital murder.*fn2 On December 16, 2007, before the penalty phase of Fortin's retrial was to begin, the Governor commuted the death sentences of eight death row inmates to life imprisonment without the possibility of parole. The following day, December 17, 2007, the Legislature adopted legislation that abolished the death penalty and replaced it with life imprisonment without the possibility of parole. L. 2007, c. 204. The legislation provided that: "This act shall take effect immediately." L. 2007, c. 204, § 8.
The State moved to sentence Fortin under the new law, codified at N.J.S.A. 2C:11-3b(4), to life imprisonment without parole. Defendant objected on ex post facto grounds, arguing that the sentence of life-without-parole "did not exist at the time of the offenses giving rise to the Indictment."
After hearing argument on February 14, 2008, Judge James F. Mulvihill denied the State's motion. The court reasoned that, under Fortin II, defendant could only be sentenced to life imprisonment without parole if he waived his rights under the ex post facto clauses of the federal and state constitutions, which he did not do. Therefore, defendant was only eligible for a maximum sentence of life imprisonment with thirty years of parole ineligibility, the maximum authorized sentence at the time of his offense.
When Fortin was convicted of capital murder in 1994, he was subject to the death penalty if the jury determined that the State had proven beyond a reasonable doubt the existence of one or more of the statutory aggravating factors and, also beyond a reasonable doubt, that the aggravating factor or factors outweighed any mitigating factors presented by defendant. Fortin II, supra, 178 N.J. at 598-99, 613; see also former N.J.S.A. 2C:11-3c(2),(3)(a); State v. Biegenwald, 106 N.J. 13, 53-67 (1987). If the State did not satisfy both standards, he could only receive a minimum sentence of thirty years without parole eligibility, or a sentence of between thirty years and life imprisonment with thirty years to be served before parole eligibility. Fortin II, supra, 178 N.J. at 599, 604, 613-14; see also former N.J.S.A. 2C:11-3b, 3c(3)(b),(c).
On August 22, 2000, six years after the offense occurred, and six months before the penalty phase proceedings in the trial, the Legislature amended N.J.S.A. 2C:11-3 to permit a life sentence without parole in certain capital cases. Fortin II, supra, 178 N.J. at 604 (citing former N.J.S.A. 2C:11-3(b)(4)). Specifically, N.J.S.A. 2C:11-3b(4), as amended in 2000, provided:
If the defendant was subject to sentencing pursuant to subsection c. and the jury or court found the existence of one or more aggravating factors, but that such factors did not outweigh the mitigating factors found to exist by the jury or court or the jury was unable to reach a unanimous verdict as to the weight of the factors, the defendant shall be sentenced by the court to a term of life imprisonment during which the defendant shall not be eligible for parole.
The legislation provided that "'[t]his act shall take effect immediately.'" Fortin II, supra, 178 N.J. at 604 (quoting L. 2000, c. 88).
Fortin endeavored to waive his rights under the ex post facto clause and asked that the new life-without-parole alternative be applied to him so that he could argue its application before the jury at the penalty phase. Id. at 604-05. "Before the penalty phase began . . . defendant announced that he would subject himself to the life-without-parole alternative and asked the court to instruct the jury in accordance with the newly-enacted provision." Id. at 604. The trial court ...