State v. Clarity
| Decision Date | 06 November 2019 |
| Docket Number | DOCKET NO. A-4596-17T3 |
| Citation | 461 N.J.Super. 320,220 A.3d 1021 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Michael CLARITY, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Margaret Ruth McLane, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Tamar Yael Lerer, Assistant Deputy Public Defender, of counsel and on the briefs).
Paul Henry Heinzel, Assistant Prosecutor, argued the cause for respondent (Michael H. Robertson, Somerset County Prosecutor, attorney; Paul Henry Heinzel, Trenton, of counsel and on the brief).
Before Judges Fisher, Accurso and Gilson.
The opinion of the court was delivered by
FISHER, P.J.A.D.
In this appeal, we again consider the State's pursuit of an extended term sentence based on its claim that defendant is a persistent offender under N.J.S.A. 2C:44-3(a). In a prior appeal, we reversed and remanded for resentencing because the sentencing judge erroneously held that defendant was "last confine[d]" within ten years of the offense by equating "probation" with "confinement." State v. Clarity, 454 N.J. Super. 603, 611, 186 A.3d 919 (App. Div. 2018). Following our remand, the State offered evidence – not previously presented – of other incarcerations to demonstrate defendant was confined within ten years of the crime for which he was sentenced. Based on defendant's concession that this new information demonstrated he was eligible for an extended term under N.J.S.A. 2C:44-3(a), the judge imposed the same extended term as before. In appealing this new judgment of conviction, defendant argues the State's information about the "last release from confinement" was inadmissible and could not support a finding that he is a persistent offender. Because of defendant's concession at sentencing, we affirm.
We start with N.J.S.A. 2C:44-3(a), which permits imposition of a discretionary extended term when a defendant is found to be a persistent offender, which, as relevant here, is an offender whose last of two prior crimes was committed or when the offender's "last release from confinement" – "whichever is later" – occurred within ten years of the crime for which sentence was imposed.
In the prior appeal, we determined that the trial judge mistakenly sentenced defendant to an extended term on a crime committed here on August 17 and 18, 2013,1 when it was established that defendant's last prior crime occurred in Florida on July 26, 2003, slightly more than ten years before. Defendant was sentenced in Florida on the July 2003 offense to a three-year probationary term that did not include incarceration; notwithstanding, the sentencing judge held that being on probation is the equivalent of being "confined" and concluded defendant's "last release from confinement" – the date on which the probationary term ended – must have occurred within ten years. We rejected the judge's interpretation of "confinement" and remanded for resentencing. Clarity, 454 N.J. Super. at 611, 186 A.3d 919.
In deciding the first appeal, we also said that if "all that was before us" was the meaning of "confinement" and the significance of the probationary term, we would have "simply reverse[d] and remand[ed] for resentencing without application of N.J.S.A. 2C:44-3(a)." Id. at 612, 186 A.3d 919. But, as we observed in the third section of our prior opinion, the State had argued "and provided some evidence" to suggest defendant was "briefly detained in Florida in 2006" for having violated a condition of the probationary term. Ibid. While we questioned whether a brief detention in such circumstances would qualify as "confinement," we determined the best course – because facts about this 2006 incident "were not presented to the sentencing judge," ibid., although mentioned in the presentence report, id. at 612 n.8, 186 A.3d 919, and because these allegations were not then relied on by the sentencing judge – was to remand for resentencing and, if necessary, "further development" of the State's claim about the brief 2006 detention. Id. at 612, 186 A.3d 919.
At resentencing, the State provided, as we allowed, additional information about defendant's 2006 Florida arrest. That information suggested defendant was then arrested for a violation of probation and was detained for eighteen days before the judge imposed a six-month extension of the preexisting probationary term. The State also provided the sentencing judge with information about defendant's later scrapes with the Florida criminal justice system. The State referred to defendant's arrests in Florida:
This information about a second violation of probation in 2007 and a prostitution solicitation conviction in 2010 was never previously presented to the sentencing judge, never asserted by the State as a ground for finding defendant to be a persistent offender in its 2016 motion for an extended term, and never presented to us during defendant's first appeal. The submission of information about the 2007 and 2010 incidents also arguably exceeded the scope of the mandate expressed in our earlier opinion. The importance of the appellate remand in such an instance cannot be understated. See, e.g., State v. Randolph, 210 N.J. 330, 44 A.3d 1113 (2012).
Without claiming that the State was barred from presenting this new information because of its failure to provide or cite to this information when moving for an extended term, and without questioning the sufficiency of the information provided at the time of resentencing, defendant's counsel acknowledged his client was eligible for an extended term as a persistent offender; counsel repeatedly conceded the facts necessary for imposition of an extended term by telling the sentencing judge:
In light of these concessions, the judge imposed the same eight-year extended prison term, subject to a four-year period of parole ineligibility, on defendant's conviction for third-degree child endangerment.
Defendant appeals, arguing that the State failed to prove his eligibility for sentencing as a persistent offender and that his sentence was otherwise excessive because of "inappropriate double counting." We find insufficient merit in defendant's second argument to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we reject the first argument for the following reasons.
In his first point, defendant argues the State failed to show he was a persistent offender. He claims the materials offered by the State to show he was last released from confinement following his service of a thirty-month prison term in Florida in 2009 are insufficient because those materials were inadmissible under the rules of evidence and not " Shepard-approved,"3 citing Kirkland v. United States, 687 F.3d 878, 886 (7th Cir. 2012). We need not so closely peruse these materials to determine their admissibility or whether they would pass the constitutional test imposed by Shepard because defendant conceded the facts necessary to prove the State's claim that he is a persistent offender. In reaching this conclusion, we need only briefly identify the types of issues that might have posed impediments to the State's pursuit of an extended term in these circumstances.
What the State must prove and the level of proof required in such circumstances are engirdled not only by legislative guidelines but by constitutional limits as well. As for the former, we note that the Legislature has not expressly described the degree to which the State must prove the facts necessary for a finding that a defendant is a persistent offender. Elements of an offense must be proved beyond a reasonable doubt, N.J.S.A. 2C:1-13(a), but "[w]hen the application of the code depends upon the finding of a fact which is not an element of an offense, unless the code otherwise provides," N.J.S.A. 2C:1-13(d), "[t]he fact must be proved to the satisfaction of the court or jury, as the case may be," N.J.S.A. 2C:1-13(d)(2) (emphasis added). Similarly, the Legislature declared that a "prior conviction" – one aspect of a persistent offender finding – "may be proved by any evidence, including fingerprint records made in connection with arrest, conviction or imprisonment, that reasonably satisfies the court that the defendant was convicted." N.J.S.A. 2C:44-4(d) (emphasis added). While spelling out what is required when the State seeks to prove a prior conviction, the Legislature left a vacuum as to other aspects of what it means to be a persistent offender. In the prior appeal, we considered what the Legislature likely meant by its use of the word "confinement." Clarity, 454 N.J. Super. at 609, 186 A.3d 919. The level of proof necessary for a finding of a defendant's "last release from confinement" also resides in this vacuum.
Federal constitutional principles also limit a state's attempt to seek an extended term. In Apprendi, the Supreme Court...
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