State v. MosleyState v. Mosley
This appeal implicates the No Early Release Act (NERA),
This is the context in which the issue аrises. Three separate indictments were returned against defendant. The first two charged various third- and fourth-degree theft offenses, and one of them also charged a third-degree burglary. The third indictment arose out of events that occurred in 1997 when defendant was nineteen years old. He was charged in that indictment with first-degree aggravated sexual assault against L.T., then a minor less than thirteen years old, by reason of an act of sexual penetration,
Pursuant to a plea agreement, defendant pleaded guilty to the count in one of the theft indictments charging fourth-degree uttering a forged instrument,
In challenging the judgment of conviction, defendant raises the following issues:
I. THE SENTENCE IMPOSED UNDER THE 85% RULE MUST BE VACATED BECAUSE THE COURT APPLIED AN INCORRECT STANDARD OF PROOF AND DEFENDANT DID NOT PLEAD GUILTY TO A CRIME INVOLVING FORCE. (Not Raised Below)
II. THE MATTER MUST BE REMANDED BECAUSE DEFENDANT
We find substantial merit in defendant‘s first argument.
The first- and second-degree violent crimes to which NERA applies are specifically defined by section d. of the Act, which provides in full as follows:
For purposes of this section, “violent crime” means any crime in which the actor causes death, causes serious bodily injury as defined in subsection b. of N.J.S. 2C:11-1, or uses or threatens the immediate use of a deadly weapon. “Violent crime” also includes any aggravated sexual assault or sexual assault in whiсh the actor uses, or threatens the immediate use of, physical force.
For purposes of this section, “deadly weapon” means any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury.
A post-conviction hearing on the applicability of NERA is mandated by section e. of the Act, which provides in full as follows:
A court shall not impose sentence pursuant to this section unless the ground therefor has been established at a hearing after the conviction of the defendant and on written notice to him of the ground proposed. The defendant shall have the right to hear and controvert the evidence against him and to offer evidence upon the issue.
We have no doubt that the procedure followed by the trial court here complied with the literal dictates of section e. Our difficulty is simply that that procedure, by permitting judicial fact finding of an element of a crime by a preponderance of the evidence, compromised defendant‘s federal and state constitutional rights to trial by jury and to due process and thus was constitutionally impermissible. We reach that conclusion even though the procedure of which we disapprove related only to sentencing.
We appreciate that issues of sentencing, including imposition of mandatory parole ineligibility terms, are matters for the judge and not the jury. We also read Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), as drawing a clear distinction, in constitutional terms, between a statute that permits a judge to find a fact not submitted to the jury for purposes of enhаncing a sentence within the statutory maximum for the crime of which defendant has been convicted and such fact-finding for purposes of enhancing a sentence beyond that statutory maximum. That is to say, the constitutional defect addressed by the Supreme Court in New Jersey‘s hate-crime law, which permitted extended-term sentencing in bias-motivated crimes,
We begin our analysis with a consideration of the Graves Act,
In its first consideration of the nature of the required presentence hearing, in State v. Stewart, 96 N.J. 596, 477 A.2d 300 (1984), the Supreme Court rejected a narrow interpretation of its scope. There, the defendant had been acquitted of charges of conspiracy to commit robbery, armed robbery, and weapons possession charges, but convicted of second-degree unarmed robbery. Defendant argued first that all the judge is permitted to do at the hearing is to determine whether a weapon in issue is a firearm and, further, that having been acquitted of armed robbery and the weapons charges, it was fundamentally unfair to permit the judge to find that he was nevertheless in possession of a firearm while committing or fleeing from an unarmed robbery. The Court premised its disagreement with these arguments on what we regard to be the critical distinction between the Graves Act and NERA. As Chief Justice Wilentz so cogently pointed out, “[t]he Legislature, in enacting the Graves Act, included in the list of offenses to which the Act applies some crimes for which possession or use of a firearm is not always a necessary element to be proved ...” id. at 605, 477 A.2d 300, referring, illustratively, to murder, manslaughter, aggravated assault, sexual assault, aggravated criminal sexual conduct, robbery and burglary. Thus, he continued, “[i]n prosecutions for these crimes the jury will not necessarily consider the issue of firearm possession or use. We therefore interpret this section as requiring the sentencing court to determine whether defendant used or possessed a weapon as well as whether that weapon is a firearm....” Id. at 605-606, 477 A.2d 300. The defendant there, consequently, could have committed a Graves Act offense had he committed an unarmed robbery but while possessing a firearm not actually used in the robbery. The point, of course, is that the danger perceived and addressed by the Legislature in enacting the Graves Act was not only the use of firearm in the commission of a crime but also its immediate availability to the defendant and hence the risk of its potential use in committing the crime.
The structure of NERA is very different. Unlike the Graves Act, it does not address the circumstances surrounding the commission of a crime, i.e., firearm possession or use, but, rather, particularly well-defined, well-understood and statutorily defined elements of a crime. Thus, as section d. defines it, a NERA crime is one in which the actor (1) causes death, or (2) or causes serious bodily injury as defined by
It is immediately apparent that each of these NERA conditions is a customary first- or second-degree crime element. Causing death is, of course, an essential element of the criminal homicide crimes defined by
Our point then is self-evident. Because firearm use or possession is not a necessary element of many crimes in which a firearm is actually used or possessed, the generic “weapon” or “deadly weapon” being the customary stipulated element, the prosecutor is unable to seek Graves Act sentencing by discrete and careful framing of the charges to be presented to the grand jury. That is ordinarily not so with NERA offenses. In the case of NERA offenses, there is already a statutory crime to fit the punishment intеnded by NERA. That is to say, if a predicate fact of NERA sentencing exists, it will also inevitably constitute or be encompassed by an element of a crime with whose commission defendant may be charged. By the same token, it would appear that if the crime of which defendant is charged and convicted does not include an element constituting or encompassing a NERA predicate fact, that crime, by definition, is not a violent crime within NERA‘s intendment. Thus if defendant is convicted of a crime one of whose necessary and constituent elements is a congruent NERA рredicate fact, such as ensuing death or serious bodily injury, a post-verdict, presentencing hearing would not ordinarily alter the NERA imperatives of a return of such a verdict.
There are, however, those convictions in which the existence of a NERA predicate fact cannot be conclusively determined on the basis of the elements of the crime of which defendant is convicted. For example, an aggravated sexual assault may be committed if the actor is not only armed with an actual deadly weapon but also if he “is armed with a weapon or any object fashioned in such a manner as to lead the victim to reasonably believe it to be a weapon and threatens by word or gesture to use the weapon or object.”
Where there is an ambiguity and hence the possibility that the element of a particular crime of which defendant has been convicted is not congruent with its counterpart NERA predicate fact, a hearing as contemplated by section e. is clearly in order. Ordinarily, it will be a hearing whose purpose, in accordance with apparent statutory intent, is to determine whether the apparent NERA element of the crime of which defendant has been convicted is, in fact, also a NERA predicate. Illustratively, a defеndant may be convicted of first-degree armed robbery,
We are further convinced that the evidential basis of a NERA hearing, not specified by NERA itself, is exactly the same as that mandated by
That observation brings us directly to a consideration of what NERA intended the presentence hearing to be and what the constitutional constraints on that hearing are in those cases in which the elements of the crime of which defendant is convicted do not include a NERA fact-predicate counterpart.
By way of analytical framework, it need hardly be said that the bedrock constitutional protections—“protections of surpassing importance“—that the Sixth and Fourteenth Amendments guarantеe to criminal defendants are the right to trial by jury and the requirement that the jury find each of the elements of the crime to have been proved beyond a reasonable doubt. Apprendi, supra, 530 U.S. at ___, 120 S.Ct. at 2355-2356, 147 L.Ed.2d at 447. And see In the Matter of Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970), making clear that the reasonable-doubt standard of proof is a matter of Fourteenth Amendment constitutional imperative. We understand the distinction drawn by the Supreme Court
Apprendi leaves no doubt of the proposition that if that critical fact permits imposition of a sentence exceeding the statutory maximum for the crime of which defendant is convicted, it must be regarded as elemental and therefore mandatorily subject to jury determination pursuant to the reasonable-doubt standard. But it also makes clear that such sentence enhancement is not exhaustive of the inquiry. Thus, quoting Almendarez-Torres v. United States, 523 U.S. 224, 251, 118 S.Ct. 1219, 1234, 140 L.Ed.2d 350, 373 (1998) (Scalia, J., dissenting), and citing Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), the Court pointed out that “[s]ince Winship, we have made clear beyond peradventure that Winship‘s due process and associated jury protections extend, to some degree, `to determinations that [go] not to a defendant‘s guilt or innocence, but simply to the length of his sentence.‘” Apprendi, supra, 530 U.S. at ___, 120 S.Ct. at 2359, 147 L.Ed.2d at 451. And McMillan notwithstanding, the Court also steadfastly adhered to its “position that (1) constitutional limits exist to States’ authority to define away facts necessary to constitute a criminal offense ... and (2) that a state scheme that keeps from the jury facts that `expos[e] [defendants] to greater or additional punishment’ ... may raise serious constitutional concern.” Apprendi, 530 U.S. at ___, 120 S.Ct. at 2360, 147 L.Ed.2d at 452 (quoting and paraphrasing McMillan, supra, 477 U.S. at 85-88, 106 S.Ct. at 2415-2417, 91 L.Ed.2d at 75-78). See also Jones v. United States, 526 U.S. 227, 248, 119 S.Ct. 1215, 1226, 143 L.Ed.2d 311, 329 (1999) (warning against incremental “diminishment of the jury‘s significance.“)
We are satisfied that a construction of NERA that would permit the judge to impose an eighty-five percent parole ineligibility period by finding, by a preponderance of the evidence,1 a NERA predicate fact having no elemental counterpart in the crime of which defendant was convicted transcends the constitutional limit on the state‘s “authority to define away facts necessary to constitute a criminal offense.” It is true that a NERA sentence imposes no greater punishment than the Criminal Code permits for that crime. But just as surely, it imposes additional punishment by substantially increasing the time defendant will have to spend in custody. Obviously the basic sentencing issue is always the real time defendant must serve, and we have always recognized that real time is the realistic and practical measure of the punishment imposed. See, e.g., State v. Pennington, 154 N.J. 344, 357, 712 A.2d 1133 (1998); State v. Long, 119 N.J. 439, 459, 575 A.2d 435 (1990); State v. Louis, 117 N.J. 250, 257, 566 A.2d 511 (1989); Richardson v. Nickolopoulos, 110 N.J. 241, 246, 540 A.2d 1246 (1988); State v. Mastapeter, 290 N.J.Super. 56, 60, 674 A.2d 1016 (App.Div.), certif. denied, 146 N.J. 569, 683 A.2d 1164 (1996); State v. Richardson, 208 N.J.Super. 399, 413-414, 506 A.2d 43 (App. Div.), certif. denied, 105 N.J. 552, 523 A.2d 188 (1986). Indeed our rules of criminal practice require the judge at the time of sentencing to state the real time probable as the result of the sentence imposed, including not only defendant‘s primary eligibility date but also the impact of credits against the sentence. R. 3:21-4(j). In terms of real time, there is a vast difference between having to serve eighty-five percent of the sentence imposed and having to serve substantially less than a third if no parole ineligibility period is imposed,
We recognize, nevertheless, particularly in view of McMillan, that the severe parole ineligibility consequence of a NERA sentencе is not by itself enough to trigger the constitutional protections of the Sixth and Fourteenth Amendments. What does, however, in our view trigger them is the fact of that severity when coupled with the nature of the evidence and standard of proof thereof that would permit that consequence. In short, each of the NERA predicate facts is, as we have pointed out, chargeable under our criminal statutes as an element of a crime. As such, they are, beyond reasonable debate, uniformly viewed as facts that our criminal jurisprudence traditionally, customarily, and constitutionally requires the jury to determine under a reasonable-doubt standard. They cannot therefore, as we perceive the issue, be stripped of that status and relegated to judicial fact-finding subject to a preponderance standard based on evidence that a jury should hear and evaluate and is normally expected and required to hear and evaluate. If we were to permit that, we would be essentially permitting the State to define away elements of the crime simply by relegating them to the status of sentencing factоrs and thereby relieving itself of its fundamental obligation of satisfying a jury by proof beyond a reasonable doubt based on admissible and, competent evidence of each of the elements of the charged crime. And that would be a constitutional violation simply because defendant‘s punishment would then be based on an element of a crime of which he was not convicted by a jury, which the prosecutor did not have to prove beyond a reasonable doubt, and against which defendant had no opportunity to defend himself before a jury.
We arе satisfied that this case perfectly illustrates our constitutional concerns. Defendant pleaded guilty to that first-degree aggravated sexual assault whose gravamen was only the age of the victim. At the sentencing hearing conducted under section e. of NERA, the victim testified briefly as to the use of force in that assault, an element of a different sexual assault crime from the crime to which defendant had pleaded, the prosecutor having agreed to dismiss the use-of-force count. Her testimony carried penal consequences. It is contrаry to our fundamental view of trial by jury and all that that right implies for that testimony to have been heard and evaluated only by a judge under a preponderance standard rather than having the essential credibility issues tested before a jury under the rules of evidence.
We are convinced that the Legislature never intended what we regard as so bizarre and draconian a proceeding. In short, as we have explained, we take the view that the hearing required by section e. was primarily predicated on the understanding that the NERA predicate fact аnd the counterpart element of crime are not necessarily congruent. Where that is so, the Legislature reposes in the trial judge the obligation to determine by a preponderance of the evidence, primarily
For these reasons, we conclude that an absolute prerequisite to NERA sentencing is defendant‘s conviction, either by a jury or by a guilty plea, of a crime one of whose elements is a counterpart to or inclusive of a NERA predicate fact. That element cannot be initially supplied after conviction by proofs submitted to the judge for preponderance-of-the-evidence fact-finding in a post-conviction hearing. And if defendant pleads guilty, the plea must also be to such a crime. This defendant did not plead guilty to sexual assault involving either a deadly weapon or the use of physical force resulting in physical injury. A NERA sentence could not, therefore, have been imposed.3
We remand to the trial court for resentencing without reference to NERA.4 In all other respects the judgment of conviction is affirmed.