STATE OF NEW JERSEY, Plаintiff-Respondent, v. JAMEL CARLTON, a/k/a JAMEL A. CARLTON, JAMAL CARLTON, and GHOST J, Defendant-Appellant.
DOCKET NO. A-0532-22
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
November 27, 2024
RECORD IMPOUNDED. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION. Argued October 16, 2024 – Decided November 27, 2024. APPROVED FOR PUBLICATION AS REDACTED November 27, 2024 APPELLATE DIVISION.
Before Judges Sumners, Susswein and Perez Friscia.
Michael Timothy Denny, Assistant Deputy Public Defender, argued the cause for appellant (Jennifer N. Sellitti, Public Defender, attorney; Michael Timothy Denny, of counsel and on the briefs).
David M. Galemba argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney; Mercedes Robertson, Deputy Attorney General, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
The opinion of the court was delivered by
SUSSWEIN, J.A.D.
Defendant Jamel Carlton appeals from his jury trial convictions for aggravated sexual assault, sexual assault, aggravated assault, burglary, and criminal restraint against an Atlantic City casino-hotel housekeeper. The State presented surveillance video recordings captured by multiple cameras throughout the casino-hotel. The State also introduced DNA evidence showing that defendant sexually penetrated the victim, and photographic evidence of her injuries, corroborating her testimony that the encounter was violent and not consensual. The trial judge sentenced defendant as a persistent offender to a forty-two-year prison term.
Defendant contends for the first time on appeal that his Confrontation Clause rights were violated when the trial judge allowed the jury to hear lay opinion testimony regarding the identification of the suspect shown on surveillance video. He also contends the trial judge erred by preventing him from introducing evidence about the victim‘s prior sexual conduct and from discussing a newspaper article from 2005 describing prostitution activities at the same casino-hotel where the present crimes were committed in February
Defendant also challenges his forty-two-year extended term sentence as a рersistent offender. In his initial appeal brief, defendant argued the trial judge erred in finding that he was a persistent offender under
After the initial briefs were filed, the United States Supreme Court decided Erlinger v. United States, 602 U.S. 821 (2024), holding that under the Fifth and Sixth Amendments, a jury—not a sentencing judge—must decide whether prior convictions used to establish the basis for enhanced sentencing had been committed on separate occasions. The majority in Erlinger explained that the Supreme Court was not creating a new rule, but merely applying constitutional principles it had previously announced following its groundbreaking decision, Apprendi v. New Jersey, 530 U.S. 466 (2000). It is undisputed, however, that Erlinger abrogates New Jersey Supreme Court precedent that embraced a contrary interpretation of the Apprendi doctrine, State v. Pierce, 188 N.J. 155 (2006). Erlinger thus necessitates a significant change to New Jersey prаctices and procedures for imposing a persistent-offender extended term of imprisonment under
The State acknowledges the Erlinger rule applies retroactively to “pipeline” cases and thus, defendant‘s Fifth and Sixth Amendment rights were violated when the judge rather than a jury decided that he was eligible for a persistent offender extended term. The Attorney General nonetheless urges us to apply the harmless constitutional error doctrine to affirm defendant‘s extended-term sentence.
To be sure, the approach advocated by the Attorney General would conserve substantial judicial and prosecutorial resources by obviating the need to remand an untold number of pipeline cases for new jury trials. We are nonetheless unpersuaded the harmless constitutional error doctrine can be applied in this case without eviscerating the Erlinger rule. We are concerned that the essential nature of a harmless error analysis—which focuses on
whether the same outcome would have been reached if the error had not occurred—runs counter to the Erlinger Cоurt‘s stern admonition that “[t]here is no efficiency exception to the Fifth and Sixth Amendments.” 602 U.S. at 842. The Court added, “[i]n a free society respectful of the individual, a criminal defendant enjoys the right to hold the government to the burden of proving its case beyond a reasonable doubt to a unanimous jury of his peers ‘regardless of how overwhelmin[g]’ the evidence may seem to a judge.” Ibid. (alteration in original) (quoting Rose v. Clark, 478 U.S. 570, 578 (1986)).
Furthermore, the Attorney General candidly acknowledged at oral argument
In the absence of further guidance from the United States Supreme Court on permissible exemptions to the Erlinger rule, we are constrained to vacate defendant‘s persistent-offender extended-term sentence and remand to the Law Division with instructions on how to remedy the constitutional violation.
I.
We discern the following facts and procedural history from the record.
A.
[At the direction of the court, the published version of this opinion omits the court‘s summary of the facts. See R. 1:36-3.]
B.
Defendant was charged in a superseding indictment with first-degree aggravated sexual assault,
A jury trial was held in March 2022. The jury found defendant guilty on counts one through five. On September 7, 2022, the trial judge sentenced defendant to an extended term of imprisonment as a persistent offender,
II.
Defendant raises the following contentions for our consideration in his counseled brief:
POINT I
THE STATE IMPROPERLY BOLSTERED ITS CASE WITH INADMISSABLE HEARSAY AND INADMISSIBLE LAY OPINION TESTIMONY IMPLICATING THE DEFENDANT AS THE PERPETRATOR IN VIOLATION OF THE CONFRONTATION CLAUSE AND N.J.R.E. 701.
A. [The ACPD Detective] And [The Security Specialist]‘s Identifications Of The Man In The Video As Carlton Violated N.J.R.E. 701.
B. Admission Of [The ACPD Detective] And [The Security Specialist]‘s Hearsay Testimony That [The Casino-Hotel]‘s Had Identified Carlton As The Suspect Violated The Confrontation Clause.
POINT II
THE TRIAL COURT VIOLATED DEFENDANT‘S RIGHT TO A COMPLETE DEFENSE BY LIMITING THE EVIDENCE REGARDING PROSTITUTION.
POINT III
Defendant raises the following additional contentions in his self-represented brief:
POINT I
Whether Defendant‘s right to Miranda was violated under the Constitution of New Jersey and the Constitution of [the] United States.
POINT II
Whether Defendant was denied his right to be free from unreasonable search and seizure under the United States Constitution and the New Jersey Constitution.
POINT III
Whether Defendant[‘s] right to Speedy Trial was denied under the Due Process of Law.
POINT IV
Whether Trial Court erred when it allowed the DNA into evidence.
POINT V
Whether Trial Court erred when it refused to put the time of the crime in the Jury Charge denying defendant an unfair Jury and Due Process of Law.
POINT VI
Whether Prosecutorial Misconduct led to defendant being found Guilty by an unfair Jury.
POINT VII
Whether the Defendant was denied his right to Discovery.
Defendant raises the following contention in a supplemental brief filed by leave granted following the United States Supreme Court‘s decision in Erlinger2:
POINT I
THE FIFTH AND SIXTH AMENDMENTS AND APPRENDI V. NEW JERSEY, 530 U.S. 466 (2000), REQUIRE THAT A JURY DECIDE THE EXISTANCE OF THE FACTS NECESSARY TO ESTABLISH THE PREDICATE FOR AN EXTENDED TERM UNDER
III.
[At the direction of the court, the published version of this opinion omits the court‘s discussion of defendant‘s Confrontation Clause claim. See R. 1:36-3.]
IV.
[At the direction of the court, the published version of this opinion omits the court‘s discussion of defendant‘s argument about improper lay opinion testimony. See R. 1:36-3.]
V.
[At the direction of the court, the published version of this opinion omits the court‘s discussion of the trial
VI.
[At the direction of the court, the published version of this opinion omits the court‘s discussion of defendant‘s pro se arguments. See R. 1:36-3.]
VII.
We next turn our attention to defendant‘s sentencing arguments. Following the jury verdict, the State in accordance with Rule 3:21-4(e)3 filed a motion to sentence defendant to an extended term as a persistent offender pursuant to
In his initial appeal brief, defendant argues the forty-two-year sentence is manifestly excessive. He also contends the trial judge erred in determining defendant was eligible for an extended term as a persistent offender, arguing that although “the third-degree charge in New York is called robbery, the elements of the crime itself are nearly the same as New Jersey‘s theft from a person charge . . .
Defendant also argues that because both New York convictions were for non-violent property crimes, the trial judge should not have relied on them to impose an enhanced sentence. Finally, defendant argues in his initial counseled brief that the trial judge failed to provide reasons to impose the discretionary extended term after having found defendant eligible for a persistent-offender sentence.
A.
As we have noted, on June 21, 2024—after both defendant and the State filed their initial briefs in this appeal—the United States Supreme Court decided Erlinger,
In Apprendi, the United States Supreme Court changed the legal landscape for imposing enhanced sentences. The Court held that “[o]ther than the fact of a prior conviction, 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.” 530 U.S. at 490. 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 Almendarez-Torres v. United States, 523 U.S. 224 (1998), the Court focused on an exception contemplated in the initial formulation of the basic Apprendi rule. Specifically, the Court in Almendarez-Torres reiterated and amplified that the “fact of an earlier conviction” need not be submitted to a jury. 523 U.S. at 224.
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),6 violated the defendant‘s Fifth and Sixth Amendment rights. Erlinger, 602 U.S. at 830-34. The majority in Erlinger rejected the government‘s argument that the “different occasions” inquiry falls under the Almendarez-Torres exception. Id. at 836-38. The majority emphasized that Almendarez-Torres recognizes a “narrow exception” that permits “judges to find only ‘the fact of a prior conviction.‘” Ibid. (quoting Alleyne v. United States, 570 U.S. 99, 111, n.1 (2013)). The majority explained that “[a] judge may ‘do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.‘” Id. at 831, n.3 (quoting Mathis v. United States, 579 U.S. 500, 511-12 (2016)).
The Erlinger majority concluded the enhanced sentence imposed in that case was unconstitutional because:
To determine whether Mr. Erlinger‘s prior convictions triggered ACCA‘s enhanced penalties, the district court had to do more than identify his previous convictions and the legal elements required to sustain them. It had to find that those offenses occurred оn at least three separate occasions. And, in doing so, the court did more than Almendarez-Torres allows.
None of that . . . means that a court may use Shepard documents or any other materials for any other purpose. To ensure compliance with the Fifth and Sixth Amendments, a sentencing judge may use the information [the judge] gleans from Shepard documents for the “limited function” of determining the fact of a prior conviction and the then-existing
elements of that offensе. “[N]o more” is allowed. In particular, a judge may not use information in Shepard documents to decide “what the defendant . . . actually d[id],” or the “means” or “manner” in which [the defendant] committed [their] offense in order to increase the punishment to which [the defendant] might be exposed.
[Id. at 839-40 (citations omitted).]
Applying those principles to the facts in the case before it, the Erlinger majority concluded:
To determine what legal elements attached to Mr. Erlinger‘s decades-old offenses, the court might have needed to consult Shepard documents to ascertain the jurisdiction in which they occurred and the date on which they happened. But the court had no need or authority “to go any further,” and assume for itself the responsibility of deciding whether Mr. Erlinger‘s past offenses differed enough in time, location, character, and purpose to have transpired on different occasions. Let alone undertake that inquiry all with an eye toward increasing his punishment. The Fifth and Sixth Amendments “contemplat[e] that a jury—not a sentencing court—will find such facts, unanimously and beyond a reasonable doubt.”
[Id. at 840 (citations omitted).]
B.
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.”
[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‘s sentencing hearing, our Supreme Court‘s decision in Pierce controlled. The Pierce Court held that a sentencing court “does not engage
C.
The State argues in its supplemental brief that defendant‘s “newly minted argument that his extended-term sentence is unconstitutional comes too late.” We disagree and decline to impose a procedural bar that would categorically deny defendant a remedy for the constitutional violation that occurred in this case. We see no basis to fault the trial judge, prosecutor, defendant, or his counsel for following the clear rule our Supreme Court announced in Pierce and “for not anticipating a change in law.” See State v. Harris, 181 N.J. 391, 436 (2004). While we might be prepared to apply plain error analysis in these circumstances, see United States v. Cotton, 535 U.S. 625 (2002), we are not prepared to categorically disregard an uncontrоverted constitutional error simply because no one had the prescience to foretell the holding in Erlinger. Cf. R. 2:10-2.
D.
Turning to the substantive merits of defendant‘s constitutional challenge to his extended-term sentence, as we have noted, the Attorney General acknowledges the Erlinger rule applies retroactively to persistent-offender cases, like this one, that are still in the direct appeal “pipeline.” See State v. Wessells, 209 N.J. 395, 412 (2012) (noting that new rules “for the conduct of criminal prosecutions” are to “be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.“) (quoting Griffith v. Kentucky, 479 U.S. 314, 328 (1987)). See also State v. Grate, 220 N.J. 317, 335 (2015) (affording pipeline retroactivity to Alleyne,9 570 U.S. at 99), and State v. Natale, 184 N.J. 458, 494 (2005) (affording pipeline retroactivity to Blakely v. Washington, 542 U.S. 296 (2004)). The Attorney General also acknowledges that defendant‘s Fifth and Sixth Amendment rights as explained in Erlinger were violated when the trial judge, rather than a jury, made factual findings regarding extended-term eligibility beyond the fact of his prior convictions.
Before we address the Attorney General‘s harmless constitutional error argument, we deem it important to point out that our persistent offender statute
requires
The foregoing factual predicates to enhanced-sentence eligibility are all case-sensitive, meaning that they must be proved on a case-by-case basis by means of the defendant‘s criminal history records, and cannot be established
solely by reading the text of a statute.10 See
Although the parties in their supplemental briefs focus on the “separate occasions” prerequisite11 specifically addressed in Erlinger‘s analysis of ACCA, a unanimous jury must find beyond a reasonable doubt that all five of the above-enumerated factual predicates are present, or the defendant must admit these predicates as part of a knowing and voluntary waiver of the right to a jury trial with respect to extended-term eligibility.
VIII.
That brings us to the Attorney General‘s principal argument that “proceedings prior to the date of Erlinger,12 where a judge made the requisite ‘separate occasions’ findings at sentencing, are subject to harmless error analysis.” In support of that contention, the Attorney General cites to Chief Justice Roberts’ one-paragraph concurring opinion in Erlinger and to Justice Kavanaugh‘s dissenting opinion. The Attorney General also cites to the Erlinger oral argument transcript, which purports
The Attorney General argues because the Erlinger majority “neither repudiated nor otherwise contested” the applicability of the hаrmless error analysis, we may then excuse the constitutional violation in this instance as harmless error on the grounds that “no ‘rational jury’ could have found that defendant committed the two prior offenses at the same time.” The outcome of this issue hinges on whether we accept the premise that Erlinger violations are amenable to harmless error analysis; to borrow the phraseology our Supreme Court used repeatedly in Pierce, 188 N.J. at 163, 167, 169, there is no reasonable doubt the “objective” facts of defendant‘s criminal background establish that he is a persistent offender withing the meaning of
A.
The harmless constitutional error doctrine is well-accepted in both federal and New Jersey jurisprudence. As our Supreme Court noted in State v. Camacho, “[t]he [United States] Supreme Court has emphasized that ‘most constitutional errors can be harmless,’ and are therefore not subject to automatic reversal.” 218 N.J. 533, 547 (2014) (quoting Arizona v. Fulminante, 499 U.S. 279, 306 (1991)). That said, the only mention of the harmless constitutional error doctrine in Erlinger is in the Chief Justice‘s succinct concurring opinion that incorporates by reference an argument raised in a dissenting opinion. Cf. State v. Masi, 72 N.J. Super. 55, 58 (Law Div. 1962) (noting that language in a United States Supreme Court concurring opinion was persuasive but not binding upon the court); Guido v. Duane Morris, LLP, 202 N.J. 79, 91 n.4 (2010) (“A dissent, of course, is not precedent.“). As the Attorney General acknowledges, the harmless constitutional error doctrine was not mentioned at all in the majority opinion that announced the constitutional rule we are now charged to enforce and safeguard.
The majority opinion‘s silence on the question of harmless constitutional error is conspicuous, especially considering that opinion comments freely and repeatedly on other points made in the other Justices’ opinions. It appears, moreover, the majority made a conscious decision not to address whether and in what circumstances an Erlinger violation might be deemed harmless error. The majority opinion tellingly states, “[w]hile recognizing Mr. Erlinger was entitled to have a jury resolve ACCA‘s [seрarate] occasions inquiry unanimously and beyond a reasonable doubt, we decide no more than that.” 602 U.S. at 835.
The Attorney General posits the majority‘s silence signals acceptance of the Chief Justice‘s concurring opinion. Perhaps. But it is equally plausible that the majority meant to signal it was unwilling to embrace a harmless error exception but was not prepared to tackle the issue directly at this time. Our task in this appeal is to decide an important constitutional question based on legal analysis of what is written in authoritative precedents, not conjecture based on what is not said in those precedents. We decline to speculate on why the Erlinger majority chose not to mention the harmless constitutional error doctrine.
The State also relies on several New Jersey precedents to support its contention the harmless constitutional error doctrine applies to Erlinger violations in pipeline case. For example, the State cites to State v. Johnson, 166 N.J. 523, 546 (2001), noting in that case, despite holding that NERA required a jury determination that a defendant committed a “violent” crime before the sentencing court could impose the statute‘s eighty-five percent period of parole ineligibility,14 our Supreme Court concluded there was no need to disturb the defendant‘s sentence “because the facts adduced at trial establish that the jury made that finding [that the defendant committed a violent crime] beyond a reasonable doubt.”
Johnson is distinguishable from the case before us, however, because here no evidence was introduced at trial on whether defendant‘s prior crimes occurred at different times. Indeed, the jury was never told about defendant‘s prior crimes. Accordingly, unlike the situation in Johnson, the jury made no finding on the predicate facts needed to establish persistent-offender extended-term eligibility.
The State‘s reliance on State v. Purnell, 161 N.J. 44 (1999), is also unavailing. In that case, our Supreme Court ruled that the holding in State v. Anderson, 127 N.J. 191 (1992)—reallocating the fact-finding function from judge to jury on the materiality element of perjury—did not command full retroactive application because it was not “intended to enhance the reliability of the fact-finding process.” Purnell, 161 N.J. at 55. In the рresent matter, however, we are not asked to afford “full” retroactivity to the Erlinger Rule, but rather only pipeline retroactivity to cases pending on direct appeal. And in any event, it does not matter whether the Erlinger rule enhances the reliability of the fact-finding process. The Apprendi/Erlinger doctrine‘s undergirding rationale is not that juries are better equipped than judges to determine the facts needed to establish extended-term eligibility. Rather, the doctrine is based on the principle that this fact-finding process falls within the realm of the Fifth and Sixth Amendment right to a jury trial.
Nor are we persuaded by the Attorney General‘s argument that:
[a]lthough Erlinger now holds that a prior-offense element is an essential element that must be proven to a jury beyond a reasonable doubt, a prior-offense element is not “material,” but rather an attendant circumstance that accordingly should be treated differently when considering whether its omission is subject to harmless error review.
We believe the distinction the Attorney General draws between various types of elements misses the mark. Nothing in the Erlinger majority opinion suggеsts the constitutional rule it announced is somehow less important because the facts that a jury must find do not fall under the rubric of “material” elements as defined in
More importantly, we read the majority opinion as establishing a fundamental constitutional
The Attorney General also relies on the United States Supreme Court‘s decision in Cotton in support of its argument that harmless error review applies to Erlinger pipeline violations. In Cotton, the defendant was charged with “conspiracy to distribute and to possess with intent to distribute a ‘detectable amount ’ of cocaine and cocaine base.” 535 U.S. at 627-28. The jury found the defendant guilty at trial. Id. at 628. At sentencing, the District Court judge made a finding of drug quantity that implicated enhanced penalties under federal law and thereupon sentenced the defendant to thirty-years imprisonment. Ibid. The defendant did not object to the fact that the sentences were based on an amount of drug quantity not alleged in the indictment. Ibid.
While the defendant‘s appeal was pending, the Court decided Apprendi. Ibid. The defendant then argued in the Court of Appeals that his sentence was invalid under Apprendi because the issue of drug quantity was neither alleged in the indictment nor submitted to the petit jury. Id. at 628-29. In its decision, the Court of Appeals first noted that because the defendant failed to raise the argument regarding his sentence before the trial judge, plain error review applied. Id. at 629. Applying that standard, the Court of Appеals vacated the defendant‘s sentence, concluding that “because an indictment setting forth all the essential elements of an offense is both mandatory and jurisdictional, . . . a court is without jurisdiction to . . . impose a sentence for an offense not charged in the indictment.” Ibid. Such an error, the Court of Appeals added, seriously impacted “the fairness, integrity or public reputation of judicial proceedings.” Ibid.
The United States Supreme Court reversed. Ibid. After concluding that the District Court judge did have jurisdiction, the Supreme Court also applied the plain error test but found that while the error was indeed “plain,” id. at 631-32, it “did not seriously affect the fairness, integrity, or public reputation of judicial proceedings.” Id. at 632-33. The Court concluded that the evidence of drug quantity presented at the defendant‘s trial was “overwhelming” and “essentially uncontroverted.” Id. at 633. Specifically, the Court referred to testimony from police officers regarding the drugs seized, and the testimony from one of the defendant‘s co-conspirator‘s regarding the amount she witnessed being bagged. Ibid.
The situation in Cotton is starkly different from the facts in the matter before us. In Cotton, the Court stressed that there was overwhelming evidence of drug quantity presented at the defendant‘s trial. Ibid. Here, in contrast, the jury heard no evidence concerning defendant‘s prior New York convictions. Thus, while the facts needed to establish persistent-offender extended-term eligibility may well be “overwhelming” and “essentially uncontroverted” as in Cotton, ibid.—a circumstance we discuss in the next subsection—those facts
C.
That leads us to examine the fundamental essence of the harmless error analysis, which considers, ultimately, whether the outcome would have been different if the error had not occurred. Importantly, the Erlinger majority explicitly rejected the argument that a jury verdict is not required when the predicate facts for an enhanced sentence are so “‘straightforward’ that sending it to a jury would be pointlessly inefficient.” 602 U.S. at 839 (citation to amicus brief omitted). The majority opinion later underscored that point, explaining:
Often, a defendant‘s past offenses will be different enough and separated by enough time and space that there is little question [the defendant] committed them on seрarate occasions. But none of that means a judge rather than a jury should make the call. There is no efficiency exception to the Fifth and Sixth Amendments. In a free society respectful of the individual, a criminal defendant enjoys the right to hold the government to the burden of proving its case beyond a reasonable doubt to a unanimous jury of his peers “regardless of how overwhelmin[g]” the evidence may seem to a judge. [Id. at 842 (quoting Rose v. Clark, 478 U.S. 570, 578 (1986)).]
That admonition is in tension—if not fundamentally inconsistent—with the inherent focus in harmless error analysis on whether the outcome would have been the same had the error not occurred considering the weight of the properly-admitted evidence. In this instance, the Attorney General argues, “the ‘overwhelming’ and ‘uncontested’ evidence leaves no doubt that defendant was a persistent offender,” citing Neder v. United States, 527 U.S. 1, 17 (1999). That assessment may well be true but begs the question of whether, after Erlinger, the decision on extended-term eligibility can be kept entirely from a jury and yet affirmed on the grounds the factual basis for an extended term is overwhelming. Neder involved the failure to instruct the jury on an element of the charged crime that was “uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error.” 527 U.S. at 17. The Court concluded the error “did not contribute to the verdict obtained,” and thus was properly found to be harmless. Ibid. (quoting Chapman v. California., 386 U.S. 18, 24 (1967)).
But even putting aside that in this case no evidence relevant to defendant‘s persistent-offender status was presented to the jury, the Attorney General‘s reasoning is hard to reconcile with the Erlinger majority‘s clear holding that the “separate occasions” decision under ACCA had to be made by a jury “regardless of how overwhelming the evidence may seem to a judge.” Erlinger, 602 U.S. at 842 (quotation marks and citation omitted).15
More fundamentally, we are not convinced from our reading of the Erlinger majority opinion that the Fifth and Sixth Amendment right to have a jury decide fact-sensitive enhanced-sentence eligibility is less important or inviolable than the right to have a jury decide the fact-sensitive question of guilt. Certainly, denying a criminal defendant a jury trial on the question of factual guilt can never be deemed harmless constitutional error on the grounds that the State‘s proofs are so overwhelming as to render a guilty verdict a foregone conclusion. A key question the State‘s harmless constitutional error argument raises, therefore, is whether the Fifth and Sixth Amendment rights recognized in Erlinger regarding the determination of enhanced-sentence eligibility are deserving of less vigorous protection than the right to a jury trial on factual guilt or innocence.
Based on the opinion‘s clear directive, we are reticent to conclude that the Erlinger majority meant for the constitutional rights recognized in Apprendi and its progeny to be treated essentially as a second-class version of the right to a jury trial. Nothing in the majority opinion supports that proposition, and much of the opinion affirmatively contradicts it, including the section in the opinion that recounts the origins, evolution, and historical importance of the right to a jury trial. See Section II(A), id. at 828-834. We presume that section would not have been included in the majority opinion if it was the majority‘s intent to relegate Apprendi-related jury-trial rights to second-class status as compared to the right to a jury trial on the question of guilt or innocence.
Relatedly, the Attorney General‘s argument suggests the harmless-constitutional-error doctrine should be applied more libеrally to pipeline cases than to cases involving the prospective application of the Erlinger rule. The Attorney General‘s supplemental brief acknowledges that while the trial judge‘s persistent-offender decision was “in accordance with established practice, that decision is now error under Erlinger because defendant‘s appeal is on direct review.” In the next sentence, the supplemental brief continues, “[b]ut proceedings prior to the date of Erlinger, where a judge made the requisite ‘separate occasions’ findings at sentencing, are subject to harmless error analysis.” The implication is that harmless error analysis either will not apply to proceedings after the date of Erlinger or it will be applied in a different way.
If that is indeed the Attorney General‘s position, we are unpersuaded. The retroactive application of a constitutional rule to a pipeline case means, simply, the rule applies in that case, presumably with full force and effect. We do not understand pipeline retroactivity to mean that the constitutional rule whеn applied retrospectively
While we are mindful of the administrative burdens that will result from remanding a potentially large number of pipeline cases for new jury trials, we are not prepared to hold that the defendants in pipeline case are entitled to less vigorous protection of their Fifth and Sixth Amendment rights than defendants whose crimes, indictments, or trials happen to occur after June 21, 2024. See Erlinger, 602 U.S. at 842 (“There is no efficiency exception to the Fifth and Sixth Amendments.“). The notion that there can be any such differentiated enforcement of the Erlinger rule would suggest that there is another de facto retroactivity option,16 namely partial or attenuated application of a rule to cases pending direct appeal. We are not familiar with any such permutation in New Jersey or federal retroactivity jurisprudence.
We do not mean to suggest that the harmless constitutional error doctrine can never apply to an Erlinger violation. But this is not a situation, for example, where a jury was provided with a flawed special verdict form or faulty instructions that were not objected to by the defense.17 Nor is this a situation where a jury was asked to make findings on some but not all the facts needed to establish the basis for an enhanced sentence. Here, none of the required findings that we have enumerated were submitted to a jury. The violation, in other words, amounts to a complete and absolute denial of the right to a jury trial on the sentence-enhancement determination.
For all these reasons, we decline to put the cart before the proverbial horse by excusing the failure to have a jury decide defendant‘s extended-term eligibility on the grounds that affording a new jury trial on remand is highly unlikely to produce a different result than the one reached by the sentencing judge. Until the United States Supreme Court has an opportunity to more fully address the practical implications of the Erlinger rule, including whether and in what circumstances harmless error analysis is appropriate, we decline to disregard the uncontroverted constitutional violation that occurred in this case.
IX.
Defendant argues in his supplemental brief he also was denied the right
The question remains what to do about pipeline cаses. We hold that in cases such as this one that are remanded, the lack of a grand jury determination regarding extended-term eligibility will be rendered harmless not because the relevant facts are straightforward, but rather because a unanimous petit jury applying a much higher standard of proof than the one needed to return an indictment will find those facts. Stated another way, we see no need to remand for both a grand jury and petit jury to make the factual determinations that Erlinger requires.
We add that in these pipeline cases, a new indictment is not needed to provide defendants notice of the facts that must be considered by a grand jury going forward. See State v. LeFurge, 101 N.J. 404, 415 (1986) (holding that the grand jury right is fulfilled when an indictment “inform[s] the defendant of the offense charged against him, so that he may adequately prepare his defense” and is “sufficiently specific” both “to enable the defendant to avoid a subsequent prosecution for the same offense” and “‘to preclude the substitution by a trial jury of an offense which the grand jury did not in fact consider or charge.‘“) (quoting first State v. Lefante, 12 N.J. 505, 509 (1953) and then State v. Boratto, 80 N.J. 506, 519 (1979)). Relatedly, pipeline cases such as this one have been scrutinized by a judge who has reviewed defendant‘s eligibility for an extended term of imprisonment. In these circumstances, defendant is on clear notice as to the fact-sensitive questions that a petit jury must resolve on remand; there is no need for further clarification in the form of an indictment.
In sum, despite our reluctance to embrace the harmless constitutional error doctrine to avoid a rash of new jury trials, we confidently apply the harmless error principle to grand jury proceedings in pipeline cases in view of the well-established principle that when a petit jury finds a defendant guilty, errors before a grand jury are deemed harmless. See State v. Simon, 421 N.J. Super. 547, 551 (App. Div. 2011) (noting that “a guilty verdict is universally considered
X.
Having addressed the constitutional issues broached in Erlinger, we take a step back to address defendant‘s contention raised in his initial appeal brief that his prior New York convictions do not satisfy the requirements for persistent-offender extended-term eligibility. That contention lacks mеrit.
In the interests of completeness, we deem it necessary to consider whether, under the Erlinger framework, it is for a judge or jury to determine that the authorized sentence for an out-of-state conviction exceeds one year of imprisonment. Although we exercise great caution before allowing a judge to decide any prerequisite to persistent-offender eligibility, we are satisfied that the maximum sentence authorized by another state‘s law is not a case-
Accordingly, and even at the risk of stretching the Almendarez-Torres
XI.
For the foregoing reasons, we vacate defendant‘s extended term sentence and remand for further proceedings in accordance with the Erlinger rule to have a jury determine whether defendant
We further note the parties may enter into a negotiated post-conviction agreement to avoid the need to convene a jury to decide whether defendant is eligible for an extended term as a persistent offender. If any such post-conviction agreement contemplates that defendant may be sentenced to an extended term as a persistent offender, the defendant must admit to the
If the State elects to seek imposition of the persistent-offender extended term and there is no рost-conviction agreement, the trial judge shall convene a jury for trial limited to the question of whether defendant meets the definition of a persistent offender set forth in
We note in the interest of completeness that under the Erlinger framework as applied to
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
CLERK OF THE APPELLATE DIVISION
Notes
[In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years. . . .