State v. Livingston

reason, summary judgment appropriate is the causation. For judgment below. disposition, and I would affirm the reversing remanding Justice PORITZ and For —Chief LaVECCHIA, STEIN, COLEMAN, LONG, Justices ZAZZALI —6. affirming VERNIERO —1.

For —Justice A.2d 153 JERSEY, PLAINTIFF, v. SYLVESTER NEW STATE OF LIVINGSTON, DEFENDANT. PLAINTIFF-APPELLANT, JERSEY, v. DERRICK OF NEW STATE GRIMSLEY, DEFENDANT-RESPONDENT. February May 2002. Argued 2002 Decided Hersh, Prosecutor, Dorothy argued A. Assistant the cause for (Daniel Prosecutor, appellant County Giaquinto, Mercer G. attor- Lachen, ney; Prosecutor, Kimberly Ms. Hersh and M. Assistant brief). of counsel and on the Defender, Pugliese, Deputy argued

Frank J. Assistant Public (Peter Garcia, respondent Acting A. cause Defend- Public er, attorney). opinion by of the Court was delivered

COLEMAN, J. appeal questions concerning application This raises novel Act, Accountability the Persistent Offenders also known as the law, “Three Strikes” N.J.S.A. 2C:43-7.1a. That statute mandates a imprisonment sentence of life for a third-time criminal offender separate “who has on two or more and occasions been second-degree convicted” of certain first- enumerated of- specific may fenses. The issue raised is whether the statute be applied previously to a third-time offender who entered two separate guilty pleas separate plea proceed- for two at crimes one ing and was sentenced for those crimes one proceeding. question, To answer that we must decide whether contemporaneous those imposed convictions were “on two or more required by occasions” as the “Three Strikes” law. Appellate published opinion in a Division concluded that imprisonment

defendant could not be sentenced to life under the “Three Strikes” law because his two convictions were im posed in proceeding one and not “on two or more and separate Livingston, N.J.Super. occasions.” State v. 773 A .2d1195 The court reasoned that the statute focuses convictions, crimes, on not applica- and was not in a continu- single convictions “occurred ble because defendant’s agree A.2d 1195. and hold proceeding.” Id. at We ous eligible under the “Three person is not that a imposed in convictions have been predicate unless the Strikes” law proceedings held on different separate and distinct two or more dates, proceeding. single continuous rather than one

I. Jenkins, 8, 1995, Rodney morning August early In hours Psychiatric Hospital, left a security at Trenton a medical officer was at home Trenton. Jenkins dropped off a co-worker bar hospital’s security basketball team officers’ a member of driving his game. after a While gone out with his teammates had pulled parking lot of a closed girlfriend’s into the van Jenkins in Trenton. As he used Prospect Street Sunoco service station station, Payton Marcus coin-operated telephone in the Sunoco Livingston in Sylvester past defendants drove the station with Grimsley in As Jenkins the back seat. front seat and Derrick eventually Payton circled the area and phone, talked on the purportedly to relieve stopped around the corner his vehicle Livingston and Grims- Payton testified that he observed himself. knapsack around the ley from a and walk pull a black revolver Payton gunshots three station. heard corner toward the Sunoco away in had Grimsley the van Jenkins and then saw drive passenger seat. All three driving, Livingston in the with been ground they departed the lying on the as individuals left Jenkins area. by Payton, gunshots heard the first missed Jenkins the three

Of run he tried to from struck him the back as but the two others and the other pierced his shoulder his attackers. One bullet back, seriously wounding him. him in the center of his struck coworkers, Christie, by the drove Sunoco one of Jenkins’s John lying shooting on the and saw Jenkins station seconds after County Hospital Mercer ground. transported Jenkins to Christie Wiley, nearby neighbor. Jenkins was with the aid of Clark critically eventually wounded and legs, lost the use of both of his his left arm and shoulder a shooting. as result of the

Livingston Grimsley first-degree carjack- and were indicted for violation of N.J.S.A. ing, 2C:15-2; in first-degree robbery, in violation of N.J.S.A. 2C:15-1; theft, third-degree in violation of N.J.S.A. 2C:20-3a; fourth-degree taking unlawful of a motor vehicle, violation of N.J.S.A 2C:20-10b; in first-degree attempted murder, violation of N.J.S.A 2C:ll-3 and 2C:5-1; second- degree aggravated assault, 2C:12-lb(l); in violation of N.J.S.A fourth-degree aggravated assault, in violation of N.J.S.A 2C:12- lb(4); second-degree possession of weapon for an unlawful purpose, 2C:39-4a; in violation of N.J.S.A third-degree un- possession weapon, lawful of a in violation of N.J.S.A 2C:39-5b. jury Livingston A Grimsley found guilty on all Al- counts. though Livingston’s below, conviction appeal was affirmed on he is not appeal. involved in this appeal solely This relates to Grims- ley’s sentencing.

In Grimsley’s advance of sentencing hearing, the State served notice of its intention to seek an imprisonment extended term of (1) based on three repeat different theories of offender status: as (2) Graves Act offender under N.J.S.A 2C:43-6c; persistent as a (3) 2C:44-3a; offender under N.J.S.A repeat as a violent law, offender under the “Three Strikes” N.J.S.A 2C:43-7.1a. The Grimsley’s State’s motion relied on two convictions for two separate first-degree robbery robberies. The first occurred in 1, County Essex on December 1983 and the second occurred in County May Union on robbery 1985. The two indictments were plea disposition consolidated for County in Union at which time separate guilty defendant entered pleas within minutes of each other on October 1985. On December Superior County Court in Union entered judgments of conviction Grimsley and sentenced twelve-year concurrent imprisonment terms of years parole with four ineligibility robbery. each judgments Those were approximately entered nine- years and-one-half before the “Three Strikes” law became effec- Nonetheless, sentencing hearing at the conducted on the five. April argued Grimsley’s present indictment the State prior convictions for the two robberies committed on two distinct predicate the “Three occasions constituted two strikes under law, were notwithstanding the fact that both convictions counsel, hand, contemporaneously. Defense on the other entered they argued separate were not because that the two convictions imposed were on one occasion. that, Grimsley’s prior although rob-

The trial court concluded charged in dates and were two beries occurred on different indictments, eligible not for an extended term separate he was expressly “the statute under the “Three Strikes” law because separate requires that the defendant be convicted on two occa- robbery imposed Grimsley’s Because two convictions were sions.” day, essentially he “was convicted on one occasion” on same “strike,” prior predicate and counted as one his convictions court, Grimsley accordingly, sentenced to two not two. The imprisonment under the concurrent extended terms of life Graves ineligibility period twenty-five years parole Act with a carjacking court also attempted and murder convictions. The ten-year parole ineligibility imposed a consecutive sentence with a years weapons term of five for the conviction.

Grimsley carjacking, and the appealed the life sentence for Grimsley cross-appealed trial court’s failure to State sentence rejected Appellate Division under the “Three Strikes” law. Grimsley’s prior robbery argument that convictions the State’s more and occa constituted convictions “on two or Livingston, supra, sions” under the “Three Strikes” law. State 140-41, reasoned that N.J.Super. at 773 A.2d 1195. The court “reasonably interpreted language not be of the statute could 141, subject Grimsley A.2d 1195. The to its terms.” Id. at Grimsley’s robbery two convictions were court had “no doubt that cases, separa imposed in actual or de consolidated without facto ” tion, Id. and not on ‘two or more and occasions.’ 147, Grimsley’s appeal, the court at 773 A.2d 1195. On vacated carjacking the life sentence for based on the State’s concession carjacking was not One of the enumerated offenses for which imposed. Act term could Graves extended be Id. at A.2d 1195. by Livingston Grimsley

Petitions for certification filed were (2001). granted denied. 170 N.J. 785 A.2d 435 We certification, cross-petition State’s limited to the issue whether Grimsley’s prior qualified him for under the “Three Strikes” law. 170 N.J. We now affirm.

II. argues Legislature The State that the intended the courts to use qualifying represent separate convictions that and distinct acts of punishment crime prohibit as the basis for enhanced not multiple the use of convictions entered at the same time. The overriding purpose “[t]he State maintains that of the ‘Three protect public Strikes’ law was to persons persis- the from who tently by imposing commit serious and violent crimes” the most severe custodial sentence available under the law. The State Appellate contends that the reasoning Division’s will defeat the legislative multiple intent if separate convictions for offenses imposed sentencing proceeding in one are considered as one purposes conviction for of the statute. if The State insists that the Legislature by Appellate had intended the result reached the Division, expressed it would have its intention with different language, perhaps similar to that used in the former Habitual Act, 2A:85-12, repealed by Offender N.J.S.A N.J.S.A. 2C:98-2. argues plain meaning

Defendant that the of the clear statute is Legislature and that the multiple prior intended to address convic- multiple prior tions rather than crimes. Defendant contends that legislative history the and our former Habitual Offender Act support concept the prior that convictions “on two or more and separate imposed day occasions” do not include convictions on one Rather, those phrase the includes sentencing proceeding. in one on two has been sentenced in which an individual separate dates. pro “Three Strikes” law provisions of the pertinent

The vide: convicted of a crime under any Parole. A

a. Life Without person Imprisonment been following and occasions on two or more of the ... who has prior foregoing or under similar of sections any a crime under any convicted of is other state for a crime state, this States, any statute of the United foregoing of shall be sections, to a crime under any substantially equivalent eligibility for with no court, parole. of sentenced to a term life imprisonment by convictions are shall not unless the prior The of this section apply c. provisions the crime for which the occasions and unless crimes committed on separate of being within 10 of the date was committed either years is sentenced defendant crime or from confinement for commission any last release the defendant’s of the crimes for commission of the most recent within 10 of the date of the years has a conviction. which the defendant c.] [N.J.S.A. 2C:43-7.1a, first-degree attempted murder Grimsley was convicted Because “Three robbery, enumerated first-degree two crimes and first- law, previously of two he had been convicted life robberies, sought him sentenced to to have degree the State parole pursuant to N.J.S.A. 2C:43-7.1a. without imprisonment case, life law mandates the “Three Strikes” Pertinent to this convicted parole person for a who has been imprisonment without It is undis robbery “separate occasions.” first-degree on three first-degree at Grimsley convicted of puted that has been Rodney present in the robbery of Jenkins tempted murder and least one on at and two other robberies case however, Decem on whether the dispute, focuses occasion. “prior 3, entered on two judgments conviction were ber 1985 constitutionality Although upheld the we and occasions.” Oliver, 580, 585-89, 162 N.J. “Three law State of the Strikes” (2000), the novel issue have not addressed A.2d 1165 we 745 by appeal. presented this construction, look statutory we general rule of

“‘As a and If the statute is clear language of the statute. to the first 218

unambiguous interpretation, on its face and admits of one we deeper need delve no than the act’s literal terms to divine the ” Thomas, Legislature’s 560, 567, intent.’ State v. 166 N.J. 767 (2001) Butler, 220, (quoting 226, A.2d 459 State v. 89 445 N.J. A.2d (1982)). susceptible If the interpretations, text is to different beyond we look the literal words of the statute and consider “ factors, purpose, legislative ‘extrinsic such as the statute’s histo ” ry, statutory [L]egislature’s and context to ascertain the intent.’ Co., 323, 318, Aponte-Correa v. Allstate Ins. N.J. A.2d 175 (2000) Schad, (quoting Township 156, Pennsauken v. 160 N.J. 170, (1999)). policy underlying 733A.2d 1159 We also consider the Thomas, 567, supra, the statute. State v. 166 N.J. at 767 A.2d However, guided by 459. in criminal cases we are rule lenity, requires penal strictly which us to construe statutes and interpret ambiguous language in of a criminal favor defendant. Schad, 171, 1159; supra, 160 Galloway, N.J. at 733 A.2d State v. 631, 658-59, (1993); Valentin, 133 N.J. State v. 23-24, (1987); Carbone, 19, N.J. 519 A .2d322 State v. 38 N.J. 1A.2d The “separate “Three Strikes” law does not define occasions.” Appellate language Division concluded that the of the “Three law, occasions,” “on two or more is unambiguous. clear Livingston, supra, State v. 340 N.J.Su per. disagree at 773 A.2d 1195. We and find that the statute concerning is not clear imposed whether two convictions in one proceeding qualify as one strike or two strikes under the “Three Strikes” law.

When the “Three part Strikes” law was enacted in it was protecting by of a nationwide trend at public aimed incarcerat ing Oliver, certain third-time supra, offenders for life. State v. 583-84, 162 N.J. at response 745A.2d 1165. “The a statute was genuine legislative repeat concern pose unique offenders society danger society protected such that could not be without provisions of this Act.” Id. at 745 A.2d 1165. Before the passed, statute was then-Governor Christine Todd re- Whitman

219 legislation to the with her recommen- proposed the Senate turned Letter from Christine Todd part of a conditional veto. dations as 1995). Whitman, Governor, (May Jersey New to the Senate legislation goal pending the and stated Her letter affirmed the protect public was the from purpose of the new law “to the by and violent crimes” persons persistently who commit serious subsequent a third or those who are “convicted on eligibility imprisonment ... a term of life with no for occasion added). parole.” (emphasis Id. at 1 passed, press was release from the Governor’s When the law law mandated a life again office stated that the “Three Strikes” parole persons for “who are convicted of first sentence without degree separate on three occasions.” Office of the Gover crimes (June added). 22,1995) nor, uphold (emphasis In News Release constitutionality, stated that the law ing the statute’s this Court any person parole for convicted “mandates a life sentence without v. on three occasions of certain violent crimes.” State added). Oliver, (emphasis supra, 162 N.J. at (Code) Jersey contains other The New Code of Criminal Justice determining in provisions that are useful sentence enhancement “prior means that phrase the occasions” whether an enumerated crime must occur on prior each conviction for Hawks, days. In v. 114 N.J. 554 A.2d different State (1989), provisions of the held that the extended term Court 2C:44-3d, Act, were N.J.S.A. 2C:43-6e and N.J.S.A. Graves chronologi regardless of the triggered for a second-time offender at sequence long convictions so as there is a conviction cal imposed. unlike the issue time the extended term is But Appellate Division decision State Gali raised in the recent ano, (2002), A.2d 96 the issue N.J.Super. chronological sequence of the two present case is not the convictions, count as one or but rather whether the two convictions under the “Three Strikes” law. two strikes criteria, example persistent offender N.J.S.A. Another is 2C:44-3a, imposing imprisonment. The extended terms of persistent language definition of a offender contains almost identi requires cal to that in the contained “Three Strikes” law. It previously defendant to have “been convicted on at least two crimes, separate occasions of two committed at different times.” Appellate any judgments Ibid. The Division has held that two of prior pending satisfy conviction entered to the the regardless preceded criteria of whether those two crimes or followed date of the the crime for which the extended term was sought. Mangrella, N.J.Super. v. State 519 A.2d 926 denied, 127, (App.Div.1986), 107 N.J. 526 A.2d 194 certif. well, In this context as the issue whether the two convictions required persistent requirement to meet the offender can be satisfied with simultaneous convictions has not been addressed.

Finally, statute, repeat we examine the sex offender N.J.S.A. provides: 2C:14-6. It If a is convicted a second or ... the person sentence subsequent imposed of offense during ... shall ... include a minimum fixed sentence of not less than 5 years eligible

which the defendant shall not be for the of this parole____For purpose section an offense is considered a second or if the actor has at offense, subsequent [of defined.] time been convicted a sex any offense therein added).] (emphasis

[Ibid, Anderson, 174, 176-77, N.J.Super. State 451 A.2d 1326 o.b., (1983), (App.Div.1982), 93 N.J. held that aff'd offense,” subsequent under the definition of “second or simulta satisfy statutory requirement. neous convictions do not court held that “in order for subsequent one to be a second or a offender, there must already have been a first or earlier conviction subsequent entered at the time the second or offense was commit guard against ted.” Id. at 451 A.2d 1326. To overextending Anderson, holding in this in Court observed State v. Hawks plain language provisions “[t]he of the Graves Act does not limit, expressly impliedly, chronological sequence either or of subject provisions; only to its extended term requirement Supra, is that there be a conviction.” 114 N.J. at 554A .2d1330. compelling comparison

The most to the “Three Strikes” law is Act, 2A:85-12, our former Habitual Offender N.J.S.A. which was repealed in provided: 1979 when the Code became effective. It high on 3 of in this state, convicted occasions misdemeanors Any person or of crimes the laws of or or under the United States other state any country, high which state, crimes would be misdemeanors under the laws of this or whose convictions for such offenses in this state or under the laws of the United States or other state or shall total or and who is more, thereafter convicted any country an offense enumerated in this is declared to be an habitual subtitle, hereby the court in which such fourth or conviction is shall criminal, had, subsequent so life sentence the state convicted. impose prison upon person charged high 2 or more or Conviction such crimes misdemeanors indictment or or in 2 or more accusation, indictments accusations consolidated trial shall be deemed to be 1 conviction. added).] (emphasis [Ibid, The Habitual Offender Act was similar in substance and effect to law, although mandatory impris- the current “Three Strikes” life conviction, triggered upon person’s onment was fourth rather than or her third his as is the case with the “Three conviction Further, law, Strikes” law. unlike the “Three the Habit- Strikes” clearly multiple charges ual in Offender Act stated that one indictment, trial, multiple or indictments consolidated for could against only sentencing count a defendant as one conviction for purposes. Ibid. discussing light

Several cases the Habitual Offender Act shed meaning “prior separate in on the of convictions on occasions” McCall, 538, 541, In 14 the Three Strikes law. State v. N.J. 103 (1954), A.2d 376 the Court considered whether a defendant could Specifically, be sentenced under the Habitual Act. the Offender Court noted that the defendant had been convicted on two earlier together, for occasions of several offenses that were tried which imposed concurrently. to run sentences were and made group Id. at 103 A.2d 376. The Court held that “[e]ach convictions ... constituted one ‘conviction’ on a ‘occa Ibid, added). (emphasis sion’ under N.J.S.A. 2A:85-12.” See also Williams, 57, 63, N.J.Super. (App.Div. State v. 400 A.2d 513 1979) (holding that five earlier sentenced on the same day count as one conviction for under the Habitual Act); Rowe, 5, 8-9, N.J.Super. Offender accord State o.b., (App.Div.1976), A .2d 701 81 N.J. 406 A.2d 169 aff'd statute, 2C:44-3a, persistent The offender N.J.S.A. re places Report Act. 1 the former Habitual Offender Final the (1971) Jersey New Criminal Law Revision Commission 154-55 (Final Report). persistent of the drafters offender criteria multiple were aware Habitual Offender Act deemed indictment, single in charges multiple indictments or accusa trial, implicate only tions consolidated for to one conviction. 2C:44-3, Report, commentary § Final to at 330. comparative analysis

Our of the various sentence enhancement that, statute, us to statutes leads conclude unlike the sex offender 2C:14-6, rehabilitation, designed encourage N.J.S.A. which is the “Three law is intended to deter violent crime Act, 2C:43-6c, similar manner to the Graves N.J.S.A. and the statute, persistent Although Leg- offender N.J.S.A. 2C:44-3a. clearly multiple islature did not define whether convictions entered simultaneously constitute one or more strikes under N.J.S.A. 2C:43-7.1a, persuaded we are nonetheless that such convictions constitute one strike. Legislature

“[W]hen uses words a statute that construction, previously subject judicial been have Legislature [is] deemed to have those words in used the sense that Thomas, has been ascribed to them.” supra, State v. 166 N.J. at 567-68, uniformly 767 A.2d 459. Our courts almost have used the phrase “separate op occasions” to mean “at different times” as posed being E.g., Pennington, simultaneous. State v. 154 N.J. (1998) (stating that defendant had two prior separate convictions for offenses committed on two occasions purposes offender); persistent for him as a State v. (1998) 1, 7, Brimage, (stating 153 706 N.J. A.2d 1096 that defen adjudicated delinquent dant had separate been on three occa sions); Sosinski, 11, 15-16, N.J.Super. State 331 750 A.2d 779 (App.Div.) (outlining three incidents of criminal conduct that oc occasions), denied, 603, separate curred on 165 N.J. 762 certif.

228 (2000); Cook, A .2d217 State v. N.J.Super. 750 A.2d (App.Div.) (discussing history defendant’s criminal that includ murdering people occasions), ed four separate on four certif. denied, 486, (2000); 165 N.J. 758 A.2d 646 see also State v. Rhodes, 536, 2, N.J.Super. 544 & n. (App.Div.) A.2d 625 (noting that “Three prior Strikes” law focuses on convictions charges rather initially indictment), than contained in de certif. nied, (2000). 165 N.J. Furthermore, penal because of the consequences substantial that flow imprisonment from a sentence any of life possi- without bility parole, requirement that the two occur “separate suggests Legislature occasions” that the did not intend to make each conviction count as a strike when entered simultaneously. When the “Three Strikes” law was enacted practice a common had existed at least since when promulgated, Rule 3:25A-1 encouraged was that assembling pending charges against a disposition single defendant for at a plea Pillot, hearing. 558, 568-74, See State v. 115 N.J. 560 A.2d history supports That our conclusion that when a charges number of single multiple contained indictments or packaged plea disposition accusations are or consolidated for trial, Legislature contemplated multiple that simultaneous convictions entered under those single circumstances count as a strike under holding N.J.S.A. 2C:43-7.1a. That accords with our understanding “separate occasions” means “at different times,” and is consonant with the rule of strict construction of penal Also, judgments statutes. two of conviction entered simulta neously literally cannot be having characterized as been entered on “two or more separate, occasions.” To be each by conviction must be entered court in a court days. session on different

III. argues The State also that the Appellate trial court and the Division’s decision to construe defendant’s two earlier convictions

224 equal merely protection

as one strike denies certain defendants similarly law. The maintains that situated defendants will State differently ability solely attorneys’ treated based on their be plea “package” agreements. of the

The Fourteenth Amendment United States Con I, paragraph Jersey stitution Article 1 of the New Constitu guarantee equal protection Right tion of the laws. to Choose v. (1982). 287, 304-05, Byrne, 91 A that N.J. statute ‘suspect’ ‘semi-suspect’ disparately or class nor neither a “treat[s] right subject a to a affect[s] fundamental ... is ‘rational basis’ 20, 34, (1992); analysis.” Lagares, v. State N.J. A.2d 698 Williams, 1153, 1161, Dandridge 397 U.S. 90 S.Ct. analysis, govern L.Ed.2d 491 Under the rational basis rationally mental a action must be related to achievement of Choose, legitimate Right supra, interest. at state 91 N.J. 450A. 2d 925. supra, applied

In Lagares, State v. this rational basis Court Comprehensive Drug test to the Reform Act and noted that relationship applies Legislature rational test where the has creat sentencing purposes. ed for classifications of offenders The Court may Legislature punishments that provide found “the different long offenders of the same as convicted crimes so there is some rational connection between the classification of a offenders and proper legislative purpose.” 127 N.J. at 601 A.2d 698. The sentencing provision that the Court concluded enhanced of the Comprehensive equal Drug protection Reform not violate Act did rights “rationally legitimate govern it was to the because related battling by punishing mental interest crime recidivists more severely.” Id. at 601 A.2d698. scrutiny.

The “Three Strikes” law similar withstands Legislature’s purpose enacting the “Three law was to protect by punishing the public repeatedly those who commit the Code, legitimate most under our serious offenses state interest. 34-35, (recognizing legitimate objectives Id. at that 601 A.2d harm”). “recognize possible degrees Punishing of harm certain severely rationally offenders more for the same crime is related to Also, goal. will defendant have sufficient notice that he or subject sentencing she is to under the Three Strikes law because a may impose court sentence the on the State’s motion and after a given opportunity defendant is notice and an to be heard. Thus, mandatory N.J.S.A. 2C:43-7.1d. life sentence for individu- second-degree als who commit first- and the offenses enumerated in protection the “Three law equal rights Strikes” does not violate rationally legitimate and is to governmental related the interest of protecting public the from violent offenders.

Moreover, “strange about that concerns results” indicate that prosecutorial gone awry adequately has be discretion could ad- through guidelines prosecutors, dressed to to aid them in the they entry manner in guilty which structure and schedule the of pleas. presented any But we have not been with indication that guidelines any are now. of needed We are unaware abuse occur- ring joinder 3:15-l(a), permissive practice, based on our R. or our practice, guidelines consolidation R. 3:25A-1. Should become necessary, Attorney asking we will consider the General to draft guidelines prosecutors to in aid the use of their discretion as we past. e.g., 23, in Brimage, supra, have State v. See 153 N.J. at plea agreement 706 A.2d (holding guidelines for N.J.S.A State); throughout 2C:35-12 must be consistent State v. 32, Lagares, supra, (requiring adoption 127 N.J. at 601A.2d 698 of guidelines county prosecutors among their determination assist requirement repeat drug of when extended sentence for offenders applies). Presently, under N.J.S.A we find no need for 2C:43-6f guidelines.

IV. judgment Appellate of the Division is affirmed.

STEIN, J., concurring. join disposition

I in the strikes” issue. I Court’s the “three disagree holding with the Court’s conclusion that its reflects the I Legislature. Ante at 224. have little doubt that

intent Legislature surprised be learn that a defendant convict- will day on ed on the same on two indictments for robberies committed ineligible' under the “Three occasions is for conviction, he law the occasion his third but that on sentencing if eligible have first two would been such his days. convictions had occurred successive Nevertheless, holding I concur the Court’s because statutory unambiguous requiring that the language is clear more two convictions occurred on “two or added). 2C:43-7(a) (emphasis Although I occasions.” N.J.S.A. seriously Legislature contemplated we doubt that the the result reach, clearly strictly precedents require our that we construe 658-59, Galloway, criminal statutes. See State 133 N.J. (1993); Valentin, A 628 .2d State v. 105 N.J. 519 A.2d Despite my application the of is belief that Court’s the statute will, legislative inconsistent the the Court’s conclusion is with plausible only language not because of the literal of the “Three law, also because the uniform construction of the but Act the supports former Habitual Offender the Court’s result. As 2A, explains, analogous provision former Court the of Title the Act, 2A:85-12, repealed September “Habitual Offender” N.J.S.A. 1,1979, provide: was in 1951 to amended high charged Conviction two or more of such in one crimes misdemeanors

indictment or or in two or more or accusations consolidated accusation, indictments trial, for shall to be one conviction. be deemed only [L. 344.] 1951, c. construing Decisions the to the 1951 amendment Habitual Of 548, Act, McCall, 538, fender v. 14 A.2d 376 see State N.J. 103 Williams, (1954); 57, 63, N.J.Super. State v. 167 Rowe, 5, 8-9, (App.Div.1979); N.J.Super. v. 701 State 140 354 A.2d (App.Div.1976), construing well as the as decisions 1940 amend ment, “[a]ny person L. simply that to on c. referred who ...,” three has occasions been convicted see State Culver, (App.Div.1954), A.2d 429 N.J.Super. only treated convictions entered on the same date one as convic- eligibility tion for purposes habitual for offender status. It should noted robbery be that defendant’s two County 3:25A-1, in by convictions Union were authorized Rule pursuant pending against to which indictments one defendant in may tv?o purposes entering counties be “for plea consolidated sentencing.” or for That form of consolidation differs from the requirement in to the amendment Habitual Offender Act providing charged that “convictions of or more ... ... two crimes in two or more indictments ... consolidated trial shall be for added). only (emphasis deemed to be one conviction.” Neverthe less, McCall, in supra, phrase the Court observed that the “con given solidated for trial” should not be a “literal technical mean ing” “liberally general but rather should be construed to serve the legislative policy.” 14 N.J. at 103 A.2d 376. Because in (or vult) McCall on guilty defendant two occasions non entered indictments, pleas allegations multiple to the Court’s that, suggests purposes observation for at least of the Habitual Act, charges Offender in multiple indictments consolidated for purposes plea guilty day of a on same constituted one conviction. produces inexplica- Court’s construction of the statute pleas days charges subject

ble result successive to two eligibility the Three law Three Strikes result Strikes day pleas charges but on the do not. In same such my view, anomalous, although that construction is consistent with statutory language longstanding interpreta- both the and with comparable provision tion of the in the Act. If Habitual Offender result, Legislature prefers a different it should amend the statute.

LONG, J., concurring part dissenting part. in in and agreement I majority’s am in full the that with conclusion Grimsley subject is not the to under “Three Derrick previously he “on Strikes” law because was not convicted two or My my from difference separate occasions.” more long that so as defen- colleagues out of their conclusion arises separated by day, the “Three Strikes” law are dant’s convictions Legislature have enacted such a triggered. Why would the is merely persons for who imprison was to life If its intention law? crimes, Instead, easily have said so. it three it could committed predicate occur imposed requirement the that the clear “separate on occasions.” literally' the

My colleagues interpret language that result —with plainly irrational that makes no at all. It is that the statute sense prison to because his could be life one defendant sentenced days yet previous on consecutive convictions were entered another, crimes of the exact same who committed the exact same merely escape magnitude, such a sentence because those could day, I apart. on a few hours would convictions occurred the same Things irrationality Legislature. to Re not attribute such the membered, Petrarca, 124, 135, 116 516 U.S. S.Ct. Inc. (1995) (“It J., (Ginsburg, concurring) 470-71 133 L.Ed.2d respect legislature sup were courts to show little for would scheme”). pose that the lawmakers meant to enact an irrational purpose “mak[e] of “Three is to sure that those corps pose greatest society[,] to ... a who risk small of the crimes over and hardened criminals who commit bulk Weissman, put away good.” ... again, and over are for Art over Offenders, ‘3 Strikes and You’re In’ Becomes Law Worst for Press, (quoting Asbury Park June at A8 Governor Whitman). Requiring previous Todd a defendant’s con- Christine days day rather than on the same victions occur consecutive help distinguish that does not those who are members of cadre those not. of “hardened criminals” from who are incorrigible purpose targeting fulfill To the statute’s most “separate imprisonment, occasions” offenders life notion squandered opportunities for re- must be defined relation to words, “separate In form. other occasions” means between qualifying there be some chance for reha- each conviction should

229 intervening bilitation. That is referred to as “the convictions” approach. requires pattern It a of crime-conviction-crime-convic- Note, Crago, Derrick D. tion-crime-conviction. The Problem of Act, Counting to Under Three the Armed Career Criminal 41 (1991) Case Res. L 1179 (arguing W. Rev. that ACCA be inter- preted require requisite requi- to that convictions occur between though only site even previous crimes ACCA to “three refers explicit requirement convictions” without even that be they occasions).1 attempt a reha Recidivism to after failed is the incorrigibility. By itself, having bilitate best measure of days single been convicted on day consecutive instead a has no analysis. relevance in the incorrigibility whatsoever enlightened recognized interpreted Other courts have that and language statutes with similar to our “Three Strikes” law to require qualifying opportunities that occur failed convictions after example, for rehabilitation. For Supreme Rhode Island Court, interpreting requires a statute that a defendant have been two “sentenced on or more such occasions” held such that individuals are “who failed those have to avail themselves of opportunities multiple following to reform themselves conviction Smith, (R.I.2001) of criminal offenses.” State v. 766 924 A.2d (1956)) § (interpreting R.I. (emphasis General Laws 12-19-21 added). Likewise, Appeals interpreted the Court of Idaho day rule that “convictions entered the same ... should count as a single purposes establishing conviction for habitual offender status,” allowing as “a defendant chance to rehabilitate himself Harrington, between convictions.” State v. 133 Idaho (Idaho Ct.App.1999) § (interpreting P.2d Idaho Code 19- (1999)) added). (emphasis Similarly, Supreme the Delaware intervening Congress has since in an adopted approach sentencing guidelines amendment the federal that life provides mandatory for those convicted of three or more violent felonies. 18 U.S.C.A. imprisonment 3559(c)(1)(B) (mandating § life if "each violent serious imprisonment felony drug subsection, serious offense used as a basis for this other under preceding first, than the was after committed the defendant’s conviction of the offense”). drug serious violent or serious felony persons times con targeting “three interpreted statute

Court offenders, requiring felony” not of a as habitual as victed other, but that there be be' to each convictions successive sentencing, before the each chance for rehabilitation “some after brought to penalty imprisonment be bear.” Buck of life extreme (Del.1984) State, (interpreting 482 A.2d 330-31 ingham added). 4214(b)(1984)) xi, (emphasis § tit. DelCode Ann. legislature “intended to reserve reasoned that the Delaware court were not penalties for those individuals who the habitual offender separate encounters specified after the number rehabilitated of justice system corresponding number the criminal with added). (emphasis should Id. at 330 We chances reform.” interpretation reasoning those our courts follow approach Only intervening Law. Three Strikes statutory scheme rational. renders STEIN, COLEMAN, LONG, affirming For —Justices LaVECCHIA and ZAZZALI —5. part LONG —1.

Concurring part dissenting in —Justice

Case Details

Case Name: State v. Livingston

Court Name: Supreme Court of New Jersey

Date Published: May 23, 2002

Citation: 797 A.2d 153

Court Abbreviation: N.J.