State v. Johnson

• Decision Date: 28 February 2001
• Citation: 166 N.J. 523,766 A.2d 1126
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Martel JOHNSON, a/k/a Hassan K. Muhammad, Defendant-Appellant.
• Court: New Jersey Supreme Court

766 A.2d 1126

166 N.J. 523

STATE of New Jersey, Plaintiff-Respondent, v. Martel JOHNSON, a/k/a Hassan K. Muhammad, Defendant-Appellant.

Supreme Court of New Jersey.

Argued October 11, 2000.

Decided February 28, 2001.

Jay L. Wilensky, Assistant Deputy Public Defender, argued the cause for appellant (Ivelisse Torres, Public Defender, attorney).

Melaney S. Payne, Deputy Attorney General, argued the cause for respondent (John J. Farmer, Jr., Attorney General of New Jersey, attorney). The opinion of the Court was delivered by STEIN, J.

The No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA or the Act), provides for mandatory minimum sentences for convictions constituting "violent crime" as defined by that statute. We granted certification to consider whether a jury must decide if a crime is violent for purposes of NERA or if that determination can be made by the sentencing court, and whether the mandatory minimum terms imposed by NERA constitute cruel and unusual punishment under the United States and New Jersey Constitutions.

I

NERA, enacted in 1997, imposes a mandatory minimum prison term of 85% of the overall sentence, and a mandatory three-to five-year period of post-release parole supervision, for any first- or second-degree conviction that is found to constitute a violent crime. N.J.S.A. 2C:43-7.2(a),(c). The Act defines "violent crime" as

[a]ny 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 which the actor uses, or threatens the immediate use of, physical force.

[N.J.S.A. 2C:43-7.2(d) ].

The Act also provides that the grounds for imposing an enhanced sentence must be "established at a hearing after the conviction of the defendant and on written notice to him of the ground proposed." N.J.S.A. 2C:43-7.2(e).

A grand jury returned an eleven-count indictment against petitioner Martel Johnson, accusing him of robbing two customers of a check-cashing establishment at gunpoint on August 8 and August 9, 1997, respectively, and of unlawfully possessing a firearm when he was later arrested in connection with the alleged robberies. None of the counts of the indictment referred to NERA, and none charged Johnson with committing a violent crime within the meaning of NERA.

The trial court severed the charges relating to the August 9 incident and Johnson's arrest from those relating to the August 8 incident, and held separate jury trials. The facts adduced at the trial respecting the August 8 robbery indicated that Johnson approached his alleged victim on a bicycle as she exited the check-cashing store, then alighted from the bicycle, moved to within inches of the victim, and demanded her money as he aimed what appeared to be a black pistol at her. The victim gave Johnson $255. The facts adduced at the trial respecting the August 9 robbery indicated that Johnson accosted his victim in a similar manner and that he stole $265.

Approximately one week after those incidents, officers who had been alerted to the alleged robberies observed Johnson standing outside the check-cashing store, with an apparent bulge in his waistband area, and arrested him. The officers found in Johnson's possession a black, pistol-shaped BB gun, later identified by the victim of the August 8 robbery as the weapon used by Johnson during the robbery. According to a State weapons expert, Johnson's BB gun was capable of causing serious bodily injury.

The first jury considered the August 9 and arrest-scene charges and found Johnson guilty of third-degree possession of a firearm without a permit, N.J.S.A. 2C:39-5(b), but did not return a verdict on the counts relating to the alleged robbery. The court consequently declared a mistrial on the unresolved counts. The second jury considered the August 8 incident and found Johnson guilty of first-degree robbery, N.J.S.A. 2C:15-1, second-degree possession of a firearm with intent to use it unlawfully against a person, N.J.S.A. 2C:39-4(a), and third-degree possession of a firearm without a permit, N.J.S.A. 2C:39-5(b).

A defendant convicted of first-degree robbery or possession of a firearm with intent to use it against another person is subject to a mandatory imprisonment term of between one-third and one-half of the overall sentence. N.J.S.A. 2C:43-6(c). At Johnson's sentencing hearing, however, the State requested that the court impose enhanced mandatory-minimum sentences pursuant to NERA for Johnson's robbery and second-degree weapon possession convictions, on the ground that Johnson's conduct constituted violent crime within the meaning of NERA, because the facts adduced at trial clearly established that Johnson aimed the BB gun at the victim and thereby "threaten[ed]" her. The court heard no new evidence at the hearing held to determine the applicability of NERA. Accepting the State's analysis of the trial evidence, the court concluded that Johnson did, in fact, threaten the August 8 victim with the BB gun and was therefore eligible for sentencing under NERA. In making that determination, the court did not indicate whether it applied a "preponderance of the evidence" or a "beyond a reasonable doubt" standard of proof.

Applying NERA, the court sentenced Johnson to an eighteen-year term on the robbery conviction with a fifteen-year, three-month and eighteen-day parole disqualifier, and ordered a five-year term of post-release parole supervision. The court imposed concurrent sentences of ten years, with the NERA-mandated eight and one-half year parole disqualifier, on the second-degree weapon possession charge, and five years each, with two and one-half year parole disqualifiers, on the third-degree weapon possession charges.

Johnson appealed, arguing, in part, that the mandatory-minimum sentence mandated by NERA constituted cruel and unusual punishment under the Eighth Amendment to the United States Constitution. The Appellate Division upheld the enhanced sentence. State v. Johnson, 325 N.J.Super. 78, 88-89, 737 A.2d 1140 (1999). We initially denied certification. 163 N.J. 12, 746 A.2d 458 (2000). However, we subsequently vacated that order and granted certification limited to Johnson's constitutional challenges to NERA. 163 N.J. 393, 749 A.2d 367 (2000). Following our grant of certification, the Supreme Court of the United States decided Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The parties then filed supplemental briefs addressing whether, in view of Apprendi, the "violent crime" factor on which Johnson's NERA sentence was based must be presented in an indictment and found by a jury beyond a reasonable doubt, in accordance with the Due Process Clause and Sixth Amendment of the United States Constitution and Article I of the New Jersey Constitution.

II

We first address Johnson's contention that the hearing conducted by the sentencing court to determine the applicability of NERA violated his rights to indictment and trial by jury under the U.S. Constitution and Article I of the New Jersey Constitution.

At issue here is, ultimately, the scope of the principle that the Constitution "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970). While this foundational requirement universally is regarded as one of "surpassing importance," Apprendi, supra, 530 U.S. at ___, 120 S.Ct. at 2355, 147 L.Ed.2d at 447 (2000), its specific application in the context of modern, highly-structured sentencing statutes raises difficult issues for reviewing courts. The Supreme Court of the United States "has 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,'" id. at ____, 120 S.Ct. at 2359, 147 L.Ed.2d at 451 (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)). However, the Court has "never attempted to define precisely the constitutional limits" of the Winship doctrine. McMillan v. Pennsylvania, 477 U.S. 79, 86, 106 S.Ct. 2411, 2416, 91 L.Ed.2d 67, 76 (1986). Mindful of the "analytical tensions" inherent in the cases guiding our analysis, State v. Apprendi, 159 N.J. 7, 51, 731 A.2d 485 (1999) (Stein., J., dissenting), rev'd, Apprendi v. New Jersey, supra, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, we relate those precedents to the challenged provisions of NERA.

A

As will become clear, our analysis properly begins with McMillan v. Pennsylvania, supra. In that case, the United States Supreme Court upheld, by a 5-4 majority, Pennsylvania's Mandatory Minimum Sentencing Act, 42 Pa. Cons. Stat. § 9712 (1982). The Pennsylvania statute provides that any person convicted of certain enumerated felonies must be sentenced to a minimum of five years' imprisonment if the sentencing judge determines, based on a preponderance of the evidence, that the person "visibly possessed a firearm" during the commission of the offense. The statute does not, however, increase the maximum sentencing range that the defendant would face. McMillan, supra, 477 U.S. at 81-84, 106 S.Ct. at 2413-15, 91 L.Ed.2d at 73-75.

The McMillan majority characterized the "visibly possessed a firearm" element of the Pennsylvania statute as a sentencing "factor," as opposed to a conventional element of the underlying crime, id. at 89-90, 106 S.Ct. at 2418, 91 L.Ed.2d at 78-79, and held that States may attach to crimes non-elemental "factors" that are relevant to determining punishment and that can be found by a sentencing judge by a preponderance of the evidence, so long as (1)...