On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 00-80-1582.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 21, 2011
Before Judges Lihotz and St. John.
Defendant Reginald Prather appeals from the denial of his post-conviction relief (PCR) petition, maintaining the PCR court failed to correct an illegal sentence imposed following his 1983 convictions for murder, kidnapping and drug offenses. Defendant argues a court may not impose a discretionary extended term sentence unless that assertion is pled in the indictment. We reject this contention as meritless and affirm the order denying defendant's PCR petition.
Following conviction, defendant was sentenced on July 8, 1983. On the charge of murder, the trial court imposed a life sentence, requiring twenty-five years to be served prior to consideration of parole eligibility. After granting the State's application for an extended term, the court imposed a consecutive thirty-year sentence for the kidnapping, half of which was to be served before parole eligibility. Additional concurrent sentences were imposed for the drug distribution offenses. All sentences were ordered to be served consecutively to a previously imposed 1982 New York sentence for criminal possession of contraband (narcotics) and a sentence imposed on a different Hudson County conviction.
On appeal, we affirmed defendant's convictions but corrected one aspect of the sentence imposed on the multiple drug convictions. State v. Prather, Nos. A-8195-82 and A-2611-83 (App. Div. May 22, 1987). Certification was subsequently denied. State v. Prather, 109 N.J. 496 (1987). Thereafter, on October 4, 2010, defendant requested PCR, alleging the sentence imposed was illegal. Defendant's petition and motion for reconsideration were denied, prompting this appeal.
In his initial and two supplemental submissions, defendant maintains the extended term sentence for the 1983 kidnapping conviction*fn1 was illegal. Defendant asserts due process requires the State to set forth in its indictment any intention to seek enhanced penalties as provided by the persistent offender statute, N.J.S.A. 2C:44-3, much the same way as certain crimes which, depending upon the facts, may be charged at a higher degree. This contention is unfounded and rejected.
In certain instances, the Code provides different punishments for an offense if certain additional factors are present. For example, robbery under N.J.S.A. 2C:15-1(a) is a second-degree offense. N.J.S.A. 2C:15-1(b). However, if the theft was committed while attempting to kill another person or by inflicting serious bodily injury upon a victim, the offense may be charged as a first-degree offense, subject to more severe penalties upon conviction. Ibid. Consequently, if the State seeks a first-degree conviction, "facts which will aggravate the crime . . . and enhance the punishment to which [a defendant] will be subject are said to be an 'element' of the offense . . . and must therefore be charged in the indictment[.]" State v. Rodriguez, 234 N.J. Super. 298, 304-05 (App. Div. 1989), certif. denied, 117 N.J. 656 (1989). See also State v. Catlow, 206 N.J. Super. 186, 195-96 (App. Div. 1985) (stating a defendant tried on a robbery indictment which does not allege that he attempted to kill someone, or that he purposely inflicted or attempted to inflict serious bodily injury, or that he was armed with, or used or threatened the immediate use of a deadly weapon, can be convicted only of second-degree robbery), certif. denied, 103 N.J. 465-66 (1986).
The persistent offender statute differs in that its does not provide a separate substantive offense, rather it defines allowable penalties if specified circumstances related to a defendant's repeated criminal conduct are present. The applicable statutory provision states:
The defendant has been convicted of a crime of the first, second or third degree and is a persistent offender. A persistent offender is a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced.
Accordingly, a court may impose an enhanced penalty for a new criminal conviction of a defendant's past criminal history if the appropriate predicate offenses are present.
Past constitutional challenges to similar statutes have been rejected. In Oyler v. Boles, the United States Supreme Court considered a challenge to a statute that imposed enhanced penalties for habitual offenders. 368 U.S. 448, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962). The High Court stated, "the constitutionality of the practice of inflicting severe criminal penalties upon habitual ...