State v. Fortin

• Decision Date: 12 May 2009
• Docket Number: A-27 September Term 2008
• Citation: 198 N.J. 619,969 A.2d 1133
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Steven R. FORTIN, Defendant-Respondent.
• Court: New Jersey Supreme Court

969 A.2d 1133

198 N.J. 619

STATE of New Jersey, Plaintiff-Appellant, v. Steven R. FORTIN, Defendant-Respondent.

A-27 September Term 2008

Supreme Court of New Jersey.

Argued January 20, 2009.

Decided May 12, 2009.

Nancy A. Hulett, Assistant Prosecutor, argued the cause for appellant (Bruce J. Kaplan, Middlesex County Prosecutor, attorney).

Jacqueline E. Turner, Assistant Deputy Public Defender, argued the cause for respondent (Yvonne Smith Segars, Public Defender, attorney).

Justice WALLACE delivered the opinion of the Court.

The issue in this appeal is whether the application to defendant of a recent amendment to N.J.S.A. 2C:11-3, which eliminated the death penalty and imposed a sentence of life without parole for certain murders, violates the Ex Post Facto Clause of the United States and New Jersey Constitutions. In 1995, defendant was charged with a capital murder committed the previous year. He subsequently was convicted and, in 2001, a jury found him subject to the death penalty. In defendant's direct appeal, this Court reversed and remanded for a new trial. At his retrial in 2007, defendant again was found guilty of capital murder. However, prior to the scheduled penalty phase of the trial, the Legislature amended the relevant statute and imposed a mandatory life-without-parole sentence in place of the death penalty. Thus, if the jury had decided that the State met its burden to impose a death sentence on defendant, the new law would require the imposition of a sentence of life without parole. The State filed a motion seeking to have the trial court sentence defendant under the amended statute to life without parole.

The trial court denied the State's motion. It concluded that application of the life-without-parole sentence would violate the Ex Post Facto Clause of the state and federal constitutions because at the time of the offense, the maximum non-death sentence that could have been imposed was life with a thirty-year parole disqualifier. The Appellate Division granted the State's motion for leave to appeal and affirmed. We now affirm in part and reverse in part.

I.

We briefly outline the facts and procedural history that are set forth at length in State v. Fortin, 178 N.J. 540, 559-568, 843 A.2d 974 (2004) (Fortin II).

On August 11, 1994, defendant sexually assaulted and murdered Melissa Padilla. Her body was discovered in a concrete pipe along Route 1 in Woodbridge Township, badly battered and stripped naked from the waist down. At the time of the attack, the evidence found at the scene did not connect defendant to the murder. In April 1995, defendant was apprehended in Maine for the sexual assault of a Maine State Trooper. After Woodbridge police detectives became aware of the parallels between the two crimes, they traveled to Maine to interview defendant. Evidence from the Maine attack ultimately was used to implicate defendant in Padilla's murder.

On September 6, 1995, a Middlesex County grand jury indicted defendant for capital murder, N.J.S.A. 2C:11-3a(1), (2); two counts of felony murder, N.J.S.A. 2C:11-3a(3); first-degree robbery, N.J.S.A. 2C:15-1; and first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a. At the time of the offense, a defendant convicted of capital murder would be subject to the death penalty if the jury found that the State had proven beyond a reasonable doubt that: (1) one or more statutory aggravating factors were present; and (2) the aggravating factors outweighed the mitigating factors. Fortin II, supra, 178 N.J. at 598-99, 843 A.2d 974; N.J.S.A. 2C:11-3c(2), (3) (amended 2007). If the State did not satisfy both standards, the maximum sentence that a defendant could receive was life with a thirty-year parole disqualifier. Fortin II, supra, 178 N.J. at 599, 843 A.2d 974; N.J.S.A. 2C:11-3b, 3c (amended 2007).

Defendant's first capital trial took place between November 2000 and February 2001. In the guilt phase portion of that trial, the jury convicted defendant of capital murder, aggravated sexual assault, robbery, and both counts of felony murder. At the penalty phase, the jury unanimously found that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt. As a result, the trial court sentenced defendant to death on the capital murder count. With regard to the non-capital convictions, the court merged the two felony murder counts into the capital murder conviction and sentenced defendant to twenty years imprisonment with ten years of parole ineligibility on the aggravated sexual assault conviction, and to a consecutive twenty years imprisonment on the first-degree robbery conviction. Both of those sentences were ordered to run consecutive to the twenty year sentence defendant received in Maine for the crimes he committed against the State Trooper.

Defendant appealed, and this Court reversed his convictions and sentences and remanded for a new trial. Fortin II, supra, 178 N.J. at 581, 843 A.2d 974. This Court also addressed an ex post facto issue because on August 22, 2000, prior to the first capital trial, the Legislature adopted a law that allowed a sentence of life without parole in certain capital cases. Id. at 604, 843 A.2d 974. We concluded that the Legislature intended the 2000 amendment to apply to all capital murder cases proceeding to the penalty phase after the adoption of the law, id. at 607, 843 A.2d 974, and that unless defendant waived his Ex Post Facto Clause protections, application of the amendment to him would be unconstitutional, id. at 606, 843 A.2d 974. Moreover, this Court found no impediment to defendant waiving his constitutional rights under the Ex Post Facto Clause. Id. at 608-12, 843 A.2d 974.

Following an interlocutory appeal related to the admission of "other crimes" evidence, see State v. Fortin, 189 N.J. 579, 917 A.2d 746 (2007) (Fortin III), defendant was tried again in 2007. On November 29, 2007, the guilt phase jury convicted defendant of capital murder, felony murder, and aggravated sexual assault, and found him not guilty of the remaining charges.

On December 17, 2007, two weeks after the jury returned its guilty verdict but prior to jury selection for the penalty phase, the Legislature amended the murder statute to eliminate the death penalty and substitute a sentence of life without parole. See L. 2007, c. 204, § 1 (codified as amended at N.J.S.A. 2C:11-3). The previous day, the Governor commuted the death sentences to life without parole for the eight capital defendants then on death row. Under the amended statute, a defendant will receive a sentence of life without parole if the State demonstrates beyond a reasonable doubt that one or more of the statutory aggravating factors is present. N.J.S.A. 2C:11-3b(4). The amended statute does not permit the defendant to present mitigating factors.

On January 11, 2008, the State filed a motion to sentence defendant under the amended law to life imprisonment without parole. Defendant opposed the State's motion. On February 14, 2008, the trial court denied the motion, finding that the Legislature intended the new statute to apply to every defendant whose case had not yet proceeded to the penalty phase regardless of when his crime was committed, and that it was undisputed that life without parole is a more onerous punishment than life with a parole disqualifier of thirty years. Citing to Fortin II, the trial court found that it would violate the Ex Post Facto Clause of the federal and state constitutions to sentence defendant under the new law unless he waived his ex post facto protections.

The Appellate Division granted the State's motion for leave to appeal. In a published decision, the panel affirmed the trial court's ruling, but on different grounds. State v. Fortin, 400 N.J.Super. 434, 452, 948 A.2d 160 (2008). It held that the constitutional infringement was the elimination of defendant's right to present mitigating factors in the penalty phase, which resulted in a procedural change to defendant's detriment. Id. at 451, 948 A.2d 160.

Notably, the panel mentioned, but opted not to consider, the remedy of preserving the former death penalty complex, with the presentation of both aggravating and mitigating factors, and then approving the sentence of life without parole if the jury found that defendant would have qualified for a death sentence. Id. at 452-53, 948 A.2d 160. The panel did not consider that remedy because it appeared to conflict with the legislative intent, and because the State "declined to advance or advocate [it]." Id. at 453, 948 A.2d 160.

We granted the State's motion for leave to appeal. 196 N.J. 340, 953 A.2d 760 (2008).

II.

The State argues that sentencing defendant to life without parole would not violate the Ex Post Facto Clause because the amended statute is ameliorative and eliminates death as a sentencing option. The State maintains that application of the amended statute to defendant would not be unconstitutional because the new law replaces the death penalty with life without parole, which is a lesser sentence than death. In essence, the State asserts that the courts below wrongly compared the thirty-year parole disqualifier provision in the earlier statute with the life-without-parole provision in the amended statute to find an increased penalty, when instead the comparison should be between the former maximum penalty of death and the current less severe punishment of life without parole.

Further, the State asserts that the elimination of mitigating evidence in the current penalty proceedings is inconsequential because the new law does not reduce the quantum of evidence that the State must produce for the court to sentence defendant to life without parole. Alternatively, the State claims that if the new law is unconstitutional as applied to defendant, then the appropriate remedy is a "hybrid penalty phase" that maintains the substituted penalty of life without parole but allows defendant to argue for...