State v. ParolinState v. Parolin
The issue presented by this appeal is whether the No Early Release Act (NERA),
Defendant was indicted for second-degree aggravated assault, in violation of
At the plea hearing, defendant admitted that he had pointed a loaded gun at the victim. Defendant stated that his purpose in brandishing the gun was to scare the victim so she would get out of his house. Defendant also admitted that after the victim left the house, he fired the gun, the bullet ricocheted off the pavement, and either the bullet or a piece of pavement became lodged in the victim‘s leg.
At sentencing, neither the State nor defendant offered any evidence, in addition to defendant‘s version of the offense provided at the time of his plea, relating to imposition of a NERA parole disqualifier. The trial court refused to impose a NERA sentence, concluding that under our decision in State v. Johnson, 325 N.J.Super. 78, 89-90, 737 A.2d 1140 (App.Div.1999), aff‘d on other grounds, 166 N.J. 523, 766 A.2d 1126 (2001), a purely possessory offense, such as possession of a weapon for an unlawful purpose, does not qualify for NERA sentencing. The court then sentenced defendant in accordance with the Graves Act to a five year term of imprisonment, with three years of parole ineligibility, for possession of a weapon for an unlawful purpose, and a concurrent eighteen month term without parole eligibility for aggravated assault.
The State appeals from the trial court‘s determination that NERA does not apply to defendant‘s sentence. Defendant‘s answering brief argues that the State has no right to appeal. In the alternative, defendant argues that the trial court correctly concluded that NERA does not apply to his sentence.
We conclude that the State may appeal a sentence on the ground that the trial court failed to impose the period of parole ineligibility mandated by NERA. We also conclude that the trial court correctly held
I
Initially, we consider defendant‘s argument that the State has no right to appeal the trial court‘s ruling that NERA does not apply to his sentence.
It is firmly established that a court may correct an illegal sentence at any time, even if such corrective action results in an increase in a defendant‘s term of imprisonment. State v. Horton, 331 N.J.Super. 92, 97-102, 751 A.2d 141 (App. Div.2000); State v. Baker, 270 N.J.Super. 55, 74-76, 636 A.2d 553 (App.Div.), aff‘d o.b., 138 N.J. 89, 648 A.2d 1127 (1994). A corollary of this principle is that the State may appeal an illegal sentence without express authorization in the criminal code or rules of court. State v. Sheppard, 125 N.J.Super. 332, 336-39, 310 A.2d 731 (App.Div.), certif. denied, 64 N.J. 318, 315 A.2d 407 (1973); see also State v. Mercadante, 299 N.J.Super. 522, 529, 691 A.2d 819 (App.Div.), certif. denied, 150 N.J. 26, 695 A.2d 668 (1997); State v. Eigenmann, 280 N.J.Super. 331, 337-38, 347-48, 655 A.2d 452 (App.Div.1995); State v. Leslie, 269 N.J.Super. 78, 86, 634 A.2d 572 (App. Div.1993), certif. denied, 136 N.J. 29, 641 A.2d 1040 (1994).
If NERA applies to a sentence, the imposition of a parole ineligibility period of 85% of the sentence is mandatory.
II
NERA provides in pertinent part:
A court imposing a sentence of incarceration for a crime of the first or second degree shall fix a minimum term of 85% of the sentence during which the defendant shall not be eligible for parole if the crime is a violent crime....
For the purposes of this section, “violent crime” means any crime in which the actor causes death, causes serious bodily injury ..., or uses or threatens the immediate use of a deadly weapon....
[N.J.S.A. 2C:43-7.2a , d.]
In State v. Johnson, supra, 325 N.J.Super. at 89-90, 737 A.2d 1140, a panel of this court held that possession of a weapon for an unlawful purpose is not a “violent crime” within the intent of NERA.1 After quoting the definition of “violent
We think it plain that a purely possessory crime does not meet this definition. One cannot by mere possession with an unlawful purpose be deemed to have actually caused either death or serious bodily injury or used or threatened the immediate use of a deadly weapon. These are certainly elements of the robberies for which defendant was indicted and, certainly, threat of use of a deadly weapon was an element of the robbery of which defendant was convicted. But they are not elements of the purely possessory crime. A defendant must do more than have the intent to use the weapon unlawfully against the person of another before he meets the statutory definition of a violent criminal.
[Ibid.]
However, in State v. Williams, 333 N.J.Super. 356, 361, 755 A.2d 1168 (App. Div.2000), another panel of this court held that if the evidence presented at trial shows that the defendant in fact used or threatened the use of a deadly weapon, a NERA sentence may be imposed for possession of a weapon for an unlawful purpose even though use or threatening the immediate use of a deadly weapon is not an element of the offense:
[Defendant] brandished the gun on a public street and fired it in the direction of others contemporaneous with a verbal threat to kill. Pedestrians and bystanders, including a small child, were placed in danger by defendant‘s use of the firearm. In this factual setting we hold that the sentencing judge properly considered facts beyond those limited to proof of the elements of the predicate crime in determining that the offense was a “violent crime” under NERA.
... We hold that the possessory offense of unlawful possession of a firearm is not excluded from the imposition of a NERA sentence under all circumstances. The sentencing judge may evaluate the factual circumstances to determine whether the defendant‘s actions constituted a “violent crime” under NERA.
In State v. Mosley, 335 N.J.Super. 144, 761 A.2d 130 (App.Div.2000), certif. denied, ___ N.J. ___, ___ A.2d ___ (2001), Judge Pressler, the author of our opinion in Johnson, expanded upon the conceptual underpinning of Johnson‘s holding that a purely possessory crime does not qualify for NERA sentencing:
[NERA] 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) causes serious bodily injury as defined by
N.J.S.A. 2C:11-1b , or (3) uses or threatens the immediate use of a deadly weapon, or (4) uses or threatens the immediate use of physical force in committing an aggravated sexual assault or sexual assault....
It is immediately apparent that each of [the] NERA conditions is a customary first-or second-degree crime element. Causing death is, of course, an essential
... In the case of NERA offenses, there is already a statutory crime to fit the punishment intended 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.
[Id. at 151-52, 761 A.2d 130.]
Applying this rationale, the court in Mosley concluded that the defendant, who had pled guilty to first-degree aggravated sexual assault, in violation of
Subsequent to Mosley, the Supreme Court decided State v. Thomas, supra, 166 N.J. at 563, 767 A.2d 459, which involved the application of NERA to a conviction based on a guilty plea to a charge of second-degree sexual assault, in violation of
We are unable to reconcile Mosley‘s holding that “if the crime of which defendant is charged and convicted does not
The issue presented by this appeal is whether a conviction for possession of a weapon for an unlawful purpose may similarly qualify for NERA sentencing if there is “additional proof” that the conduct upon which the conviction is based involved “use[ ] or [a] threat [of] the immediate use of a deadly weapon,”
However, subsequent to Thomas, the Supreme Court summarily reversed our decision in Williams which held that “facts beyond those limited to proof of the elements of [possession of a weapon for an unlawful purpose may be considered] in determining that the offense was a `violent crime’ under NERA,” 333 N.J.Super. at 361, 755 A.2d 1168. State v. Williams, ___ N.J. ___, ___ A.2d ___ (2001). The Court‘s summary reversal order included a citation to its opinion in Johnson. Ibid. But as previously noted, supra note 1, the Supreme Court did not review the part of our opinion in Johnson which held that possession of a weapon for an unlawful purpose is not a “violent crime” within the intent of NERA. In affirming Johnson, the Court reviewed only the part of our decision which affirmed the imposition of a NERA sentence for armed robbery, and the Court‘s primary holding was that the determination that a crime is “violent” for the purpose of imposing the 85% parole ineligibility mandated by NERA must be made by a jury. 166 N.J. at 539-45, 766 A.2d 1126.
In Williams, the determination that the defendant‘s possession of a weapon for an unlawful purpose subjected him to a NERA sentence was made by the trial judge. 333 N.J.Super. at 357, 755 A.2d 1168. Consequently, applying Johnson, the NERA sentence in Williams could have been reversed solely on the ground that the finding that defendant‘s unlawful possession of a weapon met the NERA standard of a violent crime had not been made by a jury. However, the Court not only reversed the NERA sentence in Williams but also remanded with a direction that the defendant be resentenced “without reference to [NERA].” ___ N.J. at ___, ___ A.2d ___. If the summary reversal in Williams had been based solely on the fact that the trial judge rather than a jury had made the NERA finding, it would seem that the appropriate disposition would have been a remand for a hearing before a jury to determine whether the
In the vast majority of those cases, a jury deliberation on the violent crime issue would not be likely to produce a result different from the challenged court finding, and the original sentences would be reaffirmed.
[166 N.J. at 547, 766 A.2d 1126.]
See also State v. Shoats, 339 N.J.Super. 359, 370, 772 A.2d 1 (App.Div.2001). Thus, the Court implied that if a case on direct appeal, which is governed by Johnson‘s holding, 166 N.J. at 549, 766 A.2d 1126, is reversed because the trial judge rather than a jury made the finding of the NERA predicate fact, the appropriate disposition would be a remand for a hearing on this issue before a jury. But cf. State v. Stanton, 339 N.J.Super. 1, 9, 770 A.2d 1198 (App.Div.2001). Therefore, the failure to make that disposition in Williams indicates that the Court concluded a NERA sentence was inappropriate in that case, regardless of whether the determination was made by the trial judge or a jury.
Moreover, the conclusion that NERA does not apply to a conviction for the possession for an unlawful purpose involved in Williams is supported by the Court‘s discussion of the policy underlying NERA. In Thomas, the Court concluded that the legislative intent in enacting NERA was to impose a mandatary period of parole ineligibility of 85% of the sentence upon only the most violent first- and second-degree offenders:
[T]he legislative history indicates that the primary purpose to be advanced by NERA was to enhance the punishment for the most violent criminals in society. The impetus behind enacting NERA was not for all first- and second-degree criminals to serve 85% of their base-sentences, but that only those who are deemed to be the most violent in society should face a NERA sentence.
[166 N.J. at 570, 767 A.2d 459.]
The factual circumstances of the offenses committed by Williams would not provide a basis for classifying him as among “the most violent criminals in society.” The NERA sentence in Williams was predicated on the defendant brandishing a gun on a public street and firing it in the direction of others with a threat to kill. 333 N.J.Super. at 361, 755 A.2d 1168. Such use of a gun could support a conviction for terroristic threats, which is a third-degree offense,
In this case, defendant‘s brandishing of a gun at the victim was sufficient to support a conviction for fourth-degree aggravated assault, in violation of
Affirmed.