State v. Hawks

• Decision Date: 23 March 1989
• Citation: 554 A.2d 1330,114 N.J. 359
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Ernest Jesse HAWKS, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 359

114 N.J. 359

554 A.2d 1330

STATE of New Jersey, Plaintiff-Respondent, v. Ernest Jesse HAWKS, Defendant-Appellant.

Supreme Court of New Jersey.

Argued May 2, 1988.

Decided March 23, 1989.

Edward P. Hannigan, Asst. Deputy Public Defender, for defendant-appellant (Alfred A. Slocum, Public Defender, attorney).

Debra L. Stone, Deputy Atty. Gen., for respondent (Cary Edwards, Atty. Gen., attorney).

The opinion of the Court was delivered by

CLIFFORD, J.

At issue on this appeal, here as of right because of a dissent below, see Rule 2:2-1(a)(2), are the mandatory extended-term provisions of the Graves Act, N.J.S.A. 2C:43-6c and N.J.S.A. 2C:44-3d. The precise question is whether those provisions apply to a defendant whose first Graves Act offense is the subject of his second Graves Act conviction.

The majority in the Appellate Division, in an opinion reported at 214 N.J.Super. 430, 519 A.2d 922 (1986), upheld the trial court's imposition of an extended term, a result consistent with State v. Windsor, 205 N.J.Super. 450, 501 A.2d 194 (Law Div.1985). The dissenter below held that enhanced punishment was not mandated, given the chronology of offenses and convictions, a determination foreshadowed by the overruling of Windsor in State v. Lightfoot, 208 N.J.Super. 475, 479, 506 A.2d 363 (App.Div.1986). (Lightfoot was authored by the dissenting member of the panel that heard this case. The author of Windsor was another member of the same panel.)

We agree with the majority below that one of the primary purposes of the Graves Act is "[d]eterrence against second or multiple crimes involving use or possession of a firearm," 214 N.J.Super. at 434-35, 519 A.2d 922, and that that purpose is served not only by exposing to a mandatory extended term the offender who commits a firearms offense after a prior conviction of a firearms offense, id. at 435, 519 A.2d 922, but also by "exposing to a mandatory extended term anyone guilty of multiple firearms offenses, whatever the chronology of his convictions." Ibid. (emphasis added). Hence we affirm.

I

The Graves Act provides, generally, that "one who uses or possesses a firearm while committing, attempting to commit, or fleeing after the commission of, certain serious offenses specified in the Act shall be mandatorily sentenced to prison for a term that includes three years of parole ineligibility." State v. Des Marets, 92 N.J. 62, 64, 455 A.2d 1074 (1983) (footnote omitted); N.J.S.A. 2C:43-6c. The cited statutory section further provides:

A person who has been convicted of an offense enumerated by this subsection and who used or possessed a firearm during its commission, attempted commission or flight therefrom and who has been previously convicted of an offense involving the use or possession of a firearm as defined in 2C:44-3d., shall be sentenced by the court to an extended term as authorized by 2C:43-7c., notwithstanding that extended terms are ordinarily discretionary with the court.

The "extended term" referred to in N.J.S.A. 2C:43-6c must be imposed on any defendant who is at least eighteen-years old and has previously been convicted of any of the offenses enumerated in N.J.S.A. 2C:44-3d. Finally, the definition of "prior conviction of a crime" is contained in N.J.S.A. 2C:44-4b:

An adjudication by a court of competent jurisdiction that the defendant committed a crime constitutes a prior conviction, although sentence or the execution thereof was suspended, provided that the time to appeal has expired and that the defendant was not pardoned on the ground of innocence.

Defendant, Ernest Hawks, has twice been convicted of Graves Act offenses. His second Graves Act offense was committed in March 1983, during the course of an armed robbery in which he participated while on bail for his first Graves Act offense. On entry of a guilty plea Hawks was convicted in July 1983 of first-degree armed robbery, N.J.S.A. 2C:15-1, for this second Graves Act offense. Consequently, the court sentenced defendant to fifteen years in prison, subject to a five year Graves Act parole disqualifier pursuant to N.J.S.A. 2C:43-6c.

In October 1984 a second judgment of conviction was entered against Hawks, this time for criminal activities that had occurred in July and September of 1982 and, as such, represented defendant's first Graves Act offense. Specifically, Hawks was convicted of second-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), into which the conspiracy charge was merged; third-degree unlawful possession of a firearm without a permit, N.J.S.A. 2C:39-5b; and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a.

For his conviction of possession of a firearm for an unlawful purpose, the court sentenced Hawks in December 1984 to an extended custodial term of fifteen years, subject to five years parole ineligibility. This sentence was based on the court's conclusion that defendant was a second offender under the Graves's Act extended-term provisions, contained in N.J.S.A. 2C:43-6c and quoted above. Hawks's sentences of lesser duration for the other crimes were to run concurrently with the sentence for the firearms conviction, which itself was to run consecutively to the sentence imposed for his prior Graves Act conviction.

Defendant argued on appeal that his sentence for the second conviction should have been vacated or reduced because of a disparity between it and the lesser sentence given his co-defendant, who fired the firearm in the aggravated assault. In affirming the trial court, however, the Appellate Division properly observed that if defendant was subject to a mandatory extended term under the Graves Act, to which his co-defendant was not, he would not be entitled to sentence relief. 214 N.J.Super. at 432, 519 A.2d 922. As indicated, the majority below determined that the mandatory extended-term provisions were applicable to this defendant.

In sum, then, the defendant committed two Graves Act offenses on separate occasions, but he was convicted of the second offense before he was convicted of the first. The question to be resolved is whether a defendant whose first conviction was based on his second Graves Act offense may be considered "previously convicted" for purposes of imposing the Act's extended-term provisions on the occasion of his second Graves Act conviction.

II

Defendant urges the Court to adopt the view that the statutory provisions referred to above do not require the imposition of a mandatory extended term unless a person has committed and been convicted of a Graves Act offense prior to commission of the Graves Act offense for which the extended term is to be imposed. Defendant's argument, not surprisingly, mirrors the position taken by the dissent below. The dissent insisted that the focus of the statute is deterrence, and because deterrence is triggered only by the warning provided by an initial conviction, the trial court ought to regard the extended-term provision as discretionary when commission of a subsequent offense has not been preceded by an initial conviction. 214 N.J.Super. at 436-37, 519 A.2d 922.

In reaching its conclusion, the dissent relied on State v. Lightfoot, supra, 208 N.J.Super. 475, 506 A.2d 363. The court in Lightfoot construed the extended-term provisions of the Graves Act by reference to the interpretation given N.J.S.A. 2C:14-6, the statute governing repeat sex offenders, in State v. Anderson, 186 N.J.Super. 174, 451 A.2d 1326 (App.Div.1982), aff'd o.b., 93 N.J. 14, 459 A.2d 302 (1983). 208 N.J.Super. at 479, 506 A.2d 363. The Lightfoot court drew attention to what it regarded as the parallel construction of N.J.S.A 2C:14-6 and N.J.S.A. 2C:44-3d, and concluded that the Graves Act, like the sex offender statute, required imposition of an extended sentence only when a second offense had been preceded by an initial conviction. Ibid.

In so doing, Lightfoot overruled two earlier decisions interpreting the statutes now under consideration insofar as those decisions failed to follow the reasoning of Anderson. Ibid. In State v. Gillespie, 203 N.J.Super. 417, 423, 497 A.2d 232 (Law Div.1984), the court ruled that N.J.S.A. 2C:43-6c required that the defendant receive an extended term of imprisonment even though the offense forming the basis of the second Graves Act conviction occurred before the first conviction; and in State v. Windsor, supra 205 N.J.Super. at 455, 501 A.2d 194, the court held that an extended term was mandated by the Graves Act even though the defendant's prior conviction was, as here, for an offense committed after the one for which the extended sentence was being imposed.

We digress in our recitation to observe that Windsor relied on our decision in State v. Bey, 96 N.J. 625, 477 A.2d 315 (1984). In Bey we rejected the notion that a defendant's prior conviction must have been entered before the commission of the subsequent offense in order for that conviction to be used as an aggravating factor in the penalty phase of a capital proceeding. Id. at 628, 477 A.2d 315. We emphasized that "the status of the prior conviction at the time of its intended use * * * is determinative. The relevance of such a conviction, duly authenticated by finality, inheres in the fact that the conviction has occurred prior to the jury's consideration of the appropriate penalty to be imposed." Ibid. at 628, 477 A.2d 315. However, because of the distinctive purpose of our mandatory sentencing statutes, we hesitate, and indeed deem it unnecessary, to relate our ruling in Bey to the question posed by this case.

III

As an initial matter we find Anderson inapposite to an inquiry concerning the Graves Act sentencing provisions. We therefore disapprove of so much of Lightfoot as relied on that case. In Anderson the defendant was simultaneously convicted of committing three different sex offenses. Consistent with decisions interpreting...