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State v. Kiriakakis

Supreme Court of New Jersey

November 5, 2018

State of New Jersey, Plaintiff-Respondent,
v.
Nicholas Kiriakakis, Defendant-Appellant.

          Argued September 13, 2018

          On certification to the Superior Court, Appellate Division.

          Paul F. Darakjian argued the cause for appellant (Lucianna & Lucianna, attorneys; Paul F. Darakjian, and Frank P. Lucianna, of counsel and on the briefs).

          Elizabeth R. Rebein, Assistant Bergen County Prosecutor, argued the cause for respondent (Dennis Calo, Acting Bergen County Prosecutor, attorney; Elizabeth R. Rebein, of counsel and on the briefs).

          Alexander Shalom argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation, attorneys; Alexander Shalom, Edward Barocas and Jeanne LoCicero, on the brief).

          Daniella Gordon (Hyland Levin) argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Daniella Gordon, of counsel and on the brief, and Jeffrey S. Mandel (Law Offices of Jeffrey S. Mandel), on the brief).

          Carol M. Henderson, Assistant Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Carol M. Henderson, of counsel and on the brief).

          ALBIN, J., writing for the Court.

         The Court considers whether a judge, in sentencing a defendant within the range authorized by a jury's verdict, may impose a mandatory-minimum period of parole ineligibility under N.J.S.A. 2C:43-6(b), without offending the United States Constitution.

         A jury convicted defendant Nicholas Kiriakakis of two offenses, only one of which is relevant to this appeal -- second-degree conspiracy to distribute cocaine. Based on that jury verdict, the court sentenced defendant to an eight-year prison term with a four-year period of parole ineligibility. For a second-degree crime, the court may impose a prison term within a range of five to ten years, N.J.S.A. 2C:43-6(a)(2), and a minimum period of parole ineligibility not to exceed one-half of the term set, provided "the court is clearly convinced that the aggravating factors substantially outweigh the mitigating factors," N.J.S.A. 2C:43-6(b). Here, the trial judge found four aggravating factors: the nature and circumstances of the offense, N.J.S.A. 2C:44-1(a)(1); the risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); the substantial likelihood that defendant was involved in organized criminal activity, N.J.S.A. 2C:44-1(a)(5); and the need for deterrence, N.J.S.A. 2C:44-1(a)(9). The judge also found one mitigating factor.

         An Appellate Division panel vacated defendant's sentence. The panel determined that the record did not support the finding of aggravating factor one.

         Judge Susan Steele presided at defendant's resentencing and reaffirmed the remaining aggravating factors found by the initial sentencing judge. Judge Steele also found mitigating factor seven, defendant's lack of a prior juvenile or criminal record, N.J.S.A. 2C:44-1(b)(7), and mitigating factor eight, "[t]he defendant's conduct was the result of circumstances unlikely to recur," N.J.S.A. 2C:44-1(b)(8), to which she assigned "minimal weight." Judge Steele concluded that based on a weighing and balancing of those factors, the "aggravating factors substantially preponderate over the mitigating factors." Judge Steele sentenced defendant to an eight-year prison term with a four-year parole disqualifier on the drug conspiracy charge and a consecutive flat four-year term on the other charge. Judge Steele dismissed defendant's constitutional argument that Alleyne v. United States, 570 U.S. 99 (2013), decided six weeks after defendant's initial sentencing, barred the imposition of a mandatory-minimum sentence based on judicial factfinding pursuant to N.J.S.A. 2C:43-6(b).

         The Appellate Division affirmed defendant's sentence. The panel rejected defendant's constitutional challenge to N.J.S.A. 2C:43-6(b) based on Alleyne. The panel determined that Alleyne did not bar the use of traditional aggravating and mitigating factors to impose a discretionary period of parole ineligibility under N.J.S.A. 2C:43-6(b).

         The Court granted defendant's petition for certification "limited to the issue of the sentencing court's imposition of a mandatory minimum term." 232 N.J. 374, 374-75 (2018).

         HELD: The four-year period of parole ineligibility imposed by the court in exercising its sentencing discretion pursuant to N.J.S.A. 2C:43-6(b) fell within the range authorized by the jury's verdict and therefore did not violate Alleyne or the Sixth Amendment. In issuing a mandatory-minimum term, the court merely identified and weighed traditional sentencing factors to set an appropriate sentence within the statutory range set by the Legislature. The aggravating factors found by the court here were not the functional equivalent of the elements of an offense.

         1. The United States Constitution guarantees the accused the right to trial by jury and places the burden on the State to prove every element of the offense beyond a reasonable doubt. United States v. Booker, 543 U.S. 220, 230 (2005). In determining what constitutes an element of an offense, "the relevant inquiry is one not of form, but of effect -- does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?" Apprendi v. New Jersey, 530 U.S. 466, 494 (2000). It is the jury's verdict that limits the range of the sentence that may be imposed by a judge. Blakely v. Washington, 542 U.S. 296, 303-04 (2004). Judicial factfindings that infringe on the jury's exclusive role in determining guilt and the range of punishment flowing from a guilty verdict violate the Sixth Amendment. (pp. 13-18)

         2. Importantly, in Apprendi, Blakely, and Booker, the Supreme Court emphatically noted that judges retained their authority to rely on traditional sentencing factors concerning the offense and the offender in exercising their discretion in imposing a sentence within the prescribed sentencing range. And, when this Court applied those cases to invalidate presumptive sentencing under the New Jersey Code of Criminal Justice, the Court made clear that "[j]udges will continue to determine whether credible evidence supports the finding of aggravating and mitigating factors and whether the aggravating or mitigating factors preponderate." State v. Natale, 184 N.J. 458, 484, 487 (2005). In a rational system of justice, determining a sentence in a continuum between five and ten years for a second-degree offense requires a judge to "identify the aggravating and mitigating factors and balance them to arrive at a fair sentence." Id. at 488. Indeed, "reason suggests that . . . when the aggravating factors preponderate, sentences will tend toward the higher end of the range." Ibid. The Court rejects any suggestion that the judicial finding of aggravating factors within the prescribed sentencing range authorized by a jury's verdict or a defendant's admission at his plea hearing violates the Sixth Amendment when the judge imposes a discretionary sentence. Requiring the finding of aggravating factors to justify a sentence within the prescribed range does not transform those factors into the substantial equivalent of elements of an offense to be decided by a jury. (pp. 20-22)

         3. In Alleyne, the United States Supreme Court applied the dictates of Apprendi to mandatory-minimum sentences. 570 U.S. at 103. The Court held that "a fact triggering a mandatory minimum alters the prescribed range of sentences to which a criminal defendant is exposed." Id. at 112. The Court noted that "the essential Sixth Amendment inquiry is whether a fact is an element of the crime." Id. at 114. In State v. Grate, this Court applied Alleyne to strike down a statute that authorized the automatic imposition of a mandatory-minimum sentence based solely on a judicial finding of a fact. 220 N.J. 317, 323-24 (2015). The Court declared that N.J.S.A. 2C:39-5(i) was unconstitutional in light of Alleyne because the statute "unambiguously require[d] the imposition of a mandatory minimum sentence based on a judicial finding of fact." Id. at 336. The Court nevertheless determined that the sentencing court could consider aggravating factor five along with other relevant factors in imposing a sentence within the statutory range. Id. at 337-38. (pp. 22-26)

         4. In light of Alleyne, the Court now considers the constitutionality of N.J.S.A. 2C:43-6(b) and the continuing vitality of State v. Abdullah, 184 N.J. 497, 512 (2005), in which the Court upheld the constitutionality of a discretionary period of parole ineligibility imposed pursuant to N.J.S.A. 2C:43-6(b). In affirming the constitutionality of N.J.S.A 2C:43-6(b), Abdullah relied on two cases that are no longer good law. That does not mean that N.J.S.A. 2C:43-6(b) does not have a sturdy constitutional foundation, however. (pp. 26-28)

         5. A defendant convicted of second-degree conspiracy to distribute cocaine is subject to an ordinary-range sentence of five to ten years' imprisonment and a parole ineligibility range of zero to five years. In setting the appropriate sentence in either range, the sentencing court must engage in several steps of discretionary decisionmaking. The sentencing process is highly discretionary in nature and the mandatory-minimum sentence imposed in this case is distinguishable from the mandatory minimums imposed in both Alleyne and Grate. Only after finding, weighing, and balancing the aggravating and mitigating factors enumerated in N.J.S.A. 2C:44-1(a) and (b) did Judge Steele exercise her discretion and find clearly and convincingly that the aggravating factors substantially outweighed the mitigating factors in imposing a mandatory-minimum sentence within the statutory range. The aggravating factors were not elements of a crime but were traditional sentencing factors. This is the precise type of permissible, discretionary sentencing envisioned by Blakely and Booker that does not run afoul of the Sixth Amendment. A rational system of justice requires differentiating among offenders -- based on their backgrounds and the nature and circumstances of their offenses -- within the range authorized by the jury verdict. In the sentencing context, the aggravating factors, along with the mitigating factors, are legitimate considerations in setting a fair sentence within the ordinary range and the mandatory-minimum range. N.J.S.A. 2C:43-6(b) and the mandatory-minimum sentence imposed under that statute pass muster under Alleyne and Grate and do not violate the Sixth Amendment. (pp. 28-34)

         AFFIRMED.

          CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN's opinion.

          ALBIN JUSTICE.

         We must decide whether a court, in sentencing a defendant within the range authorized by a jury's verdict, may impose a mandatory-minimum period of parole ineligibility under N.J.S.A. 2C:43-6(b), without offending the United States Constitution.

         In a series of cases beginning with Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States Supreme Court held that, other than the finding of a prior conviction, judicial factfinding that extends the sentence beyond the range authorized by either a jury verdict or a defendant's admissions at a plea hearing violates the Sixth Amendment right to trial by jury. Thus, when a jury's verdict authorizes a sentence only within the second-degree range, the Constitution prohibits a judge from imposing a sentence within the first-degree range based solely on judicial factfindings. See id. at 490.

         In Alleyne v. United States, 570 U.S. 99, 103 (2013), the Supreme Court extended the Apprendi principle to mandatory-minimum sentences. It determined that judicial factfinding that increases the mandatory-minimum sentencing range beyond the range authorized by a jury verdict or a defendant's admissions at a plea hearing also offends the Sixth Amendment. Ibid.

         A jury convicted defendant Nicholas Kiriakakis of two offenses, only one of which is relevant to this appeal -- second-degree conspiracy to distribute cocaine, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:5-2. Based on that jury verdict, the court sentenced defendant to an eight-year prison term with a four-year period of parole ineligibility. For a second-degree crime, the court may impose a prison term within a range of five to ten years, N.J.S.A. 2C:43-6(a)(2), and a minimum period of parole ineligibility not to exceed one-half of the term set, provided "the court is clearly convinced that the aggravating factors substantially outweigh the mitigating factors," N.J.S.A. 2C:43-6(b).

         In exercising its discretion to impose a four-year period of parole ineligibility under N.J.S.A. 2C:43-6(b), the sentencing court found that the three applicable aggravating factors substantially outweighed the two mitigating factors. The court rejected defendant's argument that imposing a discretionary mandatory-minimum sentence violated the dictates of Alleyne. The Appellate Division agreed.

         We now hold that the four-year period of parole ineligibility imposed by the court in exercising its sentencing discretion pursuant to N.J.S.A. 2C:43-6(b) fell within the range authorized by the jury's verdict and therefore did not violate Alleyne or the Sixth Amendment. In issuing a mandatory-minimum term, the court merely identified and weighed traditional sentencing factors to set an appropriate sentence within the statutory range set by the Legislature. Alleyne permits judges, in the exercise of their discretion, to take into consideration various factors relating both to the offense and offender "in imposing a judgment within the range prescribed by statute." 570 U.S. at 116 (quoting Apprendi, 530 U.S. at 481). The aggravating factors found by the court here were not the functional equivalent of the elements of an offense. This case does not involve a judicial finding of an aggravating factor that required the imposition of a mandatory-minimum sentence, a scenario that would violate the right to a jury trial. See State v. Grate, 220 N.J. 317, 334-35 (2015).

         We therefore reject defendant's constitutional challenge to N.J.S.A. ...


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