State v. McMillan

Nov 18, 2004
Reporters:
,
Before:
King, Braithwaite, S.L. Reisner (per curiam)

PER CURIAM.

On June 28, 2004 we filed our original opinion in this ‍​‌‌‌‌​‌‌‌‌​‌​‌‌​​‌​‌‌‌‌​​‌​‌​​​​​‌​‌‌‌​‌​‌​​‌​‌‌​​​‌​‌​​‌‌​‌‌‌​‌​‌‌‌​​‌‌‌‌‌​‌​​​‌‌‌​‌‌​​‌​​‌​‌‌‌‍matter affirming defendant‘s convictions for robbery, assault and weapons offenses. The trial judge imposed an extended term of fifty years with twenty-five years of parole ineligibility. See N.J.S.A. 2C:43-7; N.J.S.A. 2C:44-3. On July 6 the defendant moved for reconsideration which we granted because defendant‘s pro se supplemental brief had never been brought to our attention. We then filed a supplemental opinion reaffirming the conviction and the extended term sentence.

In that opinion we summarily rejected defendant‘s nine claims of error and affirmed under R. 2:11-3(e)(2). We now ‍​‌‌‌‌​‌‌‌‌​‌​‌‌​​‌​‌‌‌‌​​‌​‌​​​​​‌​‌‌‌​‌​‌​​‌​‌‌​​​‌​‌​​‌‌​‌‌‌​‌​‌‌‌​​‌‌‌‌‌​‌​​​‌‌‌​‌‌​​‌​​‌​‌‌‌‍file this redacted version of our first supplemental opinion, for publication purposes.

In an addendum to his supplemental filing, defendant had made this claim:

LEGAL ARGUMENT

POINT I

APPELLANT‘S SENTENCING PROCEDURE IMPOSING THE EXTENDED TERM, DEPRIVED HIM OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHT TO HAVE A JURY DETERMINE BEYOND A REASONABLE DOUBT ALL FACTS LEGALLY ESSENTIAL TO HIS SENTENCE AND TO THE CONTRARY WAS A DENIAL OF APPELLANT‘S DUE PROCESS/EQUAL PROTECTION CLAUSE PURSUANT TO THE U.S. CONST. 14TH, AND 6TH AMEND. AND N.J. CONST. ART. 1. PARA. 1, 9, & 10.

We also reject this additional supplemental ‍​‌‌‌‌​‌‌‌‌​‌​‌‌​​‌​‌‌‌‌​​‌​‌​​​​​‌​‌‌‌​‌​‌​​‌​‌‌​​​‌​‌​​‌‌​‌‌‌​‌​‌‌‌​​‌‌‌‌‌​‌​​​‌‌‌​‌‌​​‌​​‌​‌‌‌‍claim. As to this issue, freshly raised in the wake of Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), we find no merit. Defendant claims that his extended term was illegal and a violation of his constitutional rights. The extended term enhancement was based on defendant‘s criminal history as a persistent offender. Id. at 2536. See State v. Dixon, 346 N.J.Super. 126, 139-41, 787 A.2d 211, 220-21 (App.Div.2001), certif. denied, 172 N.J. 181, 796 A.2d 898 (2002).

This case falls squarely within the recidivism exception to Blakely and does not require any further jury finding ‍​‌‌‌‌​‌‌‌‌​‌​‌‌​​‌​‌‌‌‌​​‌​‌​​​​​‌​‌‌‌​‌​‌​​‌​‌‌​​​‌​‌​​‌‌​‌‌‌​‌​‌‌‌​​‌‌‌‌‌​‌​​​‌‌‌​‌‌​​‌​​‌​‌‌‌‍for enhancement purposes. Defendant conceded that he was a persistent offender. There is no constitutional infirmity. See also Apprendi v. New Jersey, 530 U.S. 466, 488, 120 S.Ct. 2348, 2361-62, 147 L.Ed.2d 435, 454 (2000). We reaffirm our ruling in State v. Dixon, supra.

Affirm.