In the recent published decision of State of New Jersey v. Carlton, decided November 27, 2024, the Appellate Division considered the application of the recently decided Erlinger v. US, 602 U.S. ____ (2024) which held that a jury, not the sentencing judge, must decide the existence of the facts necessary to establish the grounds for a sentence enhancement based on prior convictions for offenses committed on separate occasions.
The NJ court ultimately instructed that the new rule applied to this case and all “pipeline” cases. In short, if the State decided to seek imposition of the persistent-offender extended term and there is no post-conviction agreement, the trial judge needed to convene a jury for trial limited to the question of whether defendant meets the definition of a persistent offender set forth in N.J.S.A. 2C:44-3(a). The court further instructed that the State has the burden of proving beyond a reasonable doubt all facts and circumstances needed to establish extended-term eligibility under N.J.S.A. 2C:44-3(a), including not only that the prior convictions were entered on separate occasions and the prior crimes were committed at different times, but also that defendant was 21 years of age or older when the present crime was committed, that defendant was at least eighteen years of age when the prior crimes were committed, and that the latest of the prior convictions or the date of defendant's last release from confinement, whichever is later, is within ten years of the date of the crime for which defendant is being sentenced.
Under the Erlinger framework as applied to N.J.S.A. 2C:44-3(a), the jury decides only if defendant is eligible for a discretionary extended term as a persistent offender. The trial judge retains discretion to decide whether to impose an extended term on a defendant that a unanimous jury finds to be eligible for an enhanced sentence. The judge likewise retains discretion, subject to the rules governing sentencing decisions, in determining the length of the sentence within the extended term range, see N.J.S.A. 2C:43-7(a).
Erlinger is the latest in a series of Supreme Court decisions explaining that, under the Apprendi doctrine, a jury must find the facts necessary for sentencing enhancements. In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States Supreme Court changed the legal landscape for imposing enhanced sentences. The Court held that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. In Erlinger, the Court considered the boundaries of that exception, addressing whether a judicial determination that past offenses had been committed on different occasions, which is necessary for enhanced sentencing under the federal Armed Career Criminal Act (ACCA), violated the defendant's Fifth and Sixth Amendment rights. The majority in Erlinger rejected the government's argument that the "different occasions" inquiry falls under the Almendarez-Torres exception. This exception allows a judge to determine what crime, with what elements, the defendant was convicted of.
The New Jersey persistent offender statute provides that upon application of the prosecuting attorney, a person may be sentenced to an extended term of imprisonment if the individual "has been convicted of a crime of the first, second or third degree and is a persistent offender." N.J.S.A. 2C:44-3(a). The statute further defines a "persistent offender" as: [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.
At the time of defendant-Carlton's sentencing hearing, the NJ Supreme Court decision in Pierce controlled. The Pierce Court held 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. In Pierce, the court also held that there is no Sixth Amendment violation in the sentencing court's consideration of objective facts about defendant's prior convictions in order to determine whether he qualifies as a 'persistent offender.'" The court in Carlton held that the Erlinger case effectively overturned the rule in the Pierce case with respect to the dates of convictions and a defendant's age when the offenses were committed.
N.J.S.A. 2C:44-3(a) prescribes the following fact-sensitive elements, each of which a unanimous jury must find beyond a reasonable doubt to establish that a defendant is a persistent offender eligible for an extended term of imprisonment: (1) the defendant must have been 21 years of age or older at the time of the commission of the present first, second, or third degree crime for which the extended term is sought; (2) the defendant must have been previously convicted of predicate crimes on at least two separate occasions, meaning the dates that the prior convictions were entered are different; (3) the defendant must have committed the prior crimes at different times; (4) the defendant must have been at least 18 years of age when the prior crimes were committed; and (5) the latest of the prior crimes, or the date of the defendant's release from confinement when applicable, whichever is later, is within ten years of the date of the crime for which the defendant is being sentenced.
Finally, the court noted that there might be administrative burdens resulting from remanding a potentially large number of pipeline cases for new jury trials. If you have such a case, you need to consult with an experienced criminal defense attorney about your rights. See our firm immediately to set up an initial consultation. The attorneys at LaBletta & Walters are experienced in criminal defense matters and sentencing.