June 13, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAHGEAM JENKINS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 97-05-0467.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 5, 2008
Before Judges Parker and R. B. Coleman.
Defendant Rahgeam Jenkins appeals from an October 28, 2005 order denying his motion to correct an illegal sentence. After reviewing the contentions advanced on appeal, we affirm.
On May 13, 1997, Jenkins was indicted for two counts of first degree armed robbery, N.J.S.A. 2C:15-1. Each count of the indictment alleged that Jenkins committed a theft while armed with or threatening the immediate use of a deadly weapon. The case proceeded to trial, at the conclusion of which, the jury found Jenkins guilty as charged. On June 15, 1998, the trial court sentenced Jenkins as a second time Graves Act offender, N.J.S.A. 2C:43-6c,*fn1 and imposed concurrent extended terms of sixty years in prison with a twenty-year period of parole ineligibility, consecutive to a sentence Jenkins was then serving for another armed robbery. At sentencing, the judge stated: "I would note that the record of the trial in this particular case clearly indicates the use of a firearm during the commission of the robbery. I find a firearm was used." Jenkins appealed and his conviction and sentence were affirmed on November 5, 1999.
On April 20, 2001, Jenkins filed a petition for Post Conviction Relief (PCR). That petition was denied in two orders dated July 2, 2001 and July 30, 2001. Jenkins appealed from those orders and we affirmed. On May 16, 2003, Jenkins moved for reconsideration pursuant to State v. Rue, 175 N.J. 1 (2002).
That motion was denied, and on September 8, 2003, the Supreme Court denied Jenkins' petition for certification.
On October 8, 2003, Jenkins filed a second petition for PCR, which was denied as time barred on October 28, 2003. He appealed, and while that appeal was pending, the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004). Under Blakely, "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." State v. Natale, 184 N.J. 458, 465 (2005). In light of the Blakely decision, Jenkins amended his PCR petition to include a challenge to his extended-term sentence. Jenkins' motion was denied.
On December 16, 2004, Jenkins filed a motion to correct an illegal sentence. After a hearing on October 28, 2005, the trial court denied the motion. On March 8, 2006, Jenkins filed the instant appeal. In the brief submitted by the Office of the Public Defender on his behalf, Jenkins argues:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO CORRECT AN ILLEGAL SENTENCE BASED ON THE HOLDING OF STATE V. FRANKLIN, IN VIOLATION OF DEFENDANT'S [RIGHTS PURSUANT TO THE] SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
Jenkins also submitted a brief pro se in which he presents the following argument for our consideration:
THE APPELLANT WAS DENIED THE RIGHT TO DUE PROCESS, WHEN THE LOWER COURT IMPOSED AN EXTENDED TERM PURSUANT TO THE GRAVES ACT, AS HE DID NOT QUALIFY FOR THE GRAVES ACT SENTENCING ON HIS PRESENT OFFENSE.
Jenkins' counsel contends that in light of State v. Franklin, 184 N.J. 516 (2005), the trial court erred by imposing an extended sentence because it was the judge, not the jury, that concluded that Jenkins used a firearm in the commission of the robberies for which the jury found him guilty. Jenkins himself contends that he did not qualify for the Graves Act sentencing under the subject indictment. He further argues the judge and prosecutor subverted the jury's verdict by finding "facts that could raise the defendant's sentence above the statutory maximum and above that which is authorized by the jury's verdict." These are different iterations of the same notion.
The Graves Act provides that: "A person convicted of an offense . . . and who used or possessed a firearm during its commission . . . and who has been previously convicted of an offense involving the use or possession of a firearm . . . shall be sentenced by the court to an extended term . . . ." N.J.S.A. 2C:43-6(c). By reason of his conviction of first degree armed robbery, Jenkins was extended-term eligible.
In Franklin, supra, the defendant was charged with first degree murder and a series of gun-related charges. 184 N.J. at 524. The jury, however, found the defendant not guilty of murder and the gun-related charges, but guilty of the lesser-included offense of second degree passion/provocation manslaughter, N.J.S.A. 2C:11-4(b)(2) and (c). At sentencing, in spite of the jury verdict acquitting the defendant of the gun charges, the sentencing court found that the defendant committed the manslaughter while using a gun. Because that conviction was his second gun-related offense, the court sentenced the defendant as a second time Graves Act offender and we affirmed. The Supreme Court reversed, concluding that "the second-offender provision of the Graves Act, which permits the imposition of an extended term based on judicial factfinding by a preponderance of the evidence, violates a defendant's Sixth Amendment right to trial by jury and Fourteenth Amendment right to due process." Id. at 540. Relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000), and State v. Natale, supra, 184 N.J. 458, the Court acknowledged that it is the jury that must find aggravating factors to support the imposition of enhanced sentences. Franklin, supra, 184 N.J. at 539-40.
Franklin, however, also limited the retroactive effect of its holding. The Court stated "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." Id. at 540. Franklin was decided August 2, 2005. We affirmed Jenkins' conviction on direct appeal nearly six years earlier, on November 5, 1999. The Apprendi claims were not raised by Jenkins either at trial or on direct appeal. Indeed, Apprendi was not announced by the United States Supreme Court until June 26, 2000. Hence, Jenkins' reliance on Franklin is misplaced.
Even if Franklin applied to the present case, Jenkins' argument would fail. The Court noted in Franklin that "[i]n our system of criminal justice, a defendant must have notice of the elements of the crime with which he is charged." Id. at 534. It further noted
[t]hat a defendant possessed a gun during the commission of a crime is a fact that must be presented to a grand jury and found by a petit jury beyond a reasonable doubt if the court intends to rely on it to impose a sentence exceeding the statutory maximum.
Simply put, the second-offended provision of the Graves Act removed from the jury's consideration a critical fact --whether defendant was armed. That fact was the "functional equivalent" of an element of a first-degree offense. The judge's finding that defendant possessed or 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 Amendment and Fourteenth Amendment. [Ibid.]
In this case, unlike Franklin, the indictment charged that defendant committed the crime "while armed with or threatening the use of a deadly weapon." The two victims in this case testified that Jenkins used a gun in connection with the robberies, and the jury found him guilty of two counts of first degree robbery. It could not have done so without finding that he possessed or used a firearm.
Robbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon. [N.J.S.A. 2C:15-1.]
Jenkins argues he was not on notice of the crimes for which he was found guilty or of his exposure to an extended term because the indictment referred to deadly weapons, rather than a handgun or firearm. That argument is flawed. N.J.S.A. 2C:11-1 defines a "deadly weapon" as "any firearm or other weapon . . . known to be capable of producing death or serious bodily injury." Based on the proofs submitted at trial, the only deadly weapon that defendant could have been convicted of possessing or using in the course of the robberies was a .38 caliber revolver. As already noted, the jury in this case necessarily found that Jenkins possessed or used a firearm in the course of the robbery. If it had not found that the defendant possessed or used a gun in connection with the robbery, it could not have found him guilty of first degree armed robbery.
In rejecting the State's argument in Franklin that the defendant's trial admissions and his attorney's trial conclusions were a sufficient basis for the judge to impose an extended Graves Act sentence, the court observed:
Had the charge of possession or use of a gun to commit passion/provocation manslaughter been submitted to the jury, defendant's trial testimony could have been used to support a conviction on that count. The charge, however, must precede presentation of the evidence. Courts 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. [Id. at 536.]
In this case, the indictment provided Jenkins with adequate notice of the crimes for which the jury found him guilty, and in contrast to Franklin, the jury did in fact find that Jenkins possessed or used a firearm during the commission of his crime.
Accordingly, it was proper for the trial judge to sentence Jenkins as a second time Graves Act offender, thereby subjecting him to an enhanced sentence.