(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not have been summarized).
Argued October 11, 2000 -- Decided February 28, 2001
STEIN, J., writing for a unanimous Court.
The primary issue raised in this appeal is whether a jury must decide if a crime is violent for purposes of
applying the No Early Release Act (NERA or the Act) or if that determination can be made by the sentencing court.
NERA imposes a mandatory minimum prison term of 85 percent of the overall sentence and a mandatory
three to four year period of post-release parole supervision, for any first or second degree conviction that is found to
constitute a violent crime. The Act defines “violent crime” as a crime in which the actor causes death or serious
bodily injury; uses or threatens the immediate use of a deadly weapon; and 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
further provides that the grounds for imposing an enhanced sentence must be established at a hearing after the
conviction and on written notice to defendant of the ground proposed.
A grand jury returned an eleven-count indictment against defendant, 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. The indictment did not refer to NERA or charge
Johnson with committing a “violent crime” within the meaning of NERA. Approximately one week after the
incidents, defendant was arrested standing outside the check-cashing store. Officers found in his possession a black,
pistol-shaped BB gun, later identified by one of the victims as the weapon used during the robbery. According to a
State weapons expert, Johnson's BB gun was capable of causing serious bodily injury.
The trial court severed the charges relating to the August 9 incident and Johnson's arrest from those
relating to the August 8 incident. The first jury considered the August 9 and arrest-scene charges and found
Johnson guilty on the firearm possession charge, but did not return a verdict on the robbery charges and a mistrial
was declared on those charges. The second jury considered the August 8 incident and found Johnson guilty of first-
degree robbery and firearm possession offenses. A defendant convicted of first-degree robbery or possession of a
firearm with intent to use it against another is subject to a mandatory prison term of between one-third and one-half
of the overall sentence. At Johnson's sentencing hearing, however, the State requested the court to impose
enhanced mandatory-minimum sentences pursuant to NERA, because the facts adduced at trial established that
Johnson threatened the victim with the BB gun.
The trial court concluded that defendant was eligible for sentencing under NERA, but 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 overall term of eighteen years with a term of parole disqualification
exceeding fifteen years, and a five year term of post-release parole supervision.
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. This Court initially denied certification, but subsequently vacated that order
and granted certification limited to Johnson's constitutional challenges to NERA. Following the grant of
certification, the Supreme Court of the United States decided Apprendi v. New Jersey, __ U.S. __,
120 S. Ct. 2348,
147 L. Ed.2d 435 (2000) , holding that the New Jersey Hate Crimes Act was unconstitutional because the trial
court, and not the jury, made the finding triggering an extended term of imprisonment based on a standard of proof
less than “beyond a reasonable doubt.”
HELD: To save NERA from constitutional challenge, the Court interprets the Act to require a jury to determine,
beyond a reasonable doubt, that a defendant committed a “violent crime” as defined in NERA before a sentencing
court may impose the Act's mandatory minimum sentence.
1. At issue in this case is 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. The
United States Supreme Court has made it clear that these protections extend to determinations not only of a
defendant's guilt or innocense, but also to the length of a sentence. Although earlier opinions of the United States
Supreme Court limited application of the doctrine, Apprendi placed the continuing validity of those opinions in
doubt. (Pp. 6-22)
2. The text of NERA does not specifically delegate whether it is the trial court or the jury that has the responsibility
to make the factual determination whether Johnson's conduct constituted a violent crime within the meaning of the
Act. If NERA is interpreted to require a jury to make the violent crime finding beyond a reasonable doubt,
constitutional questions can be avoided. (Pp. 22-24)
3. The punishment imposed by NERA could be more severe than the punishment imposed by the hate crimes law
held unconstitutional in Apprendi. In addition, NERA affords no discretion to the sentencing court, but requires a
mandatory minimum of 85 percent of the base term. These considerations support the contention that application of
NERA could be understood to require constitutional protections. (Pp. 24-29)
4. The Court therefore interprets NERA to require that the “violent crime” condition must be submitted to a jury
and found beyond a reasonable doubt. The Court is confident that the legislature would prefer such a construction
of NERA to its potential invalidation. (Pp. 29-30)
5. Notwithstanding the construction of NERA adopted today, the Court is satisfied that Johnson's jury did, in fact,
find the NERA violent crime predicate in reaching its verdict. As noted, NERA defines “violent crime” as a crime
in which the actor uses or threatens the immediate use of a deadly weapon. The only witness to the August 8
robbery who testified was the victim, and she testified on both direct and cross examination that Johnson aimed the
BB gun at her. That testimony was not uncontradicted. Thus, the only conceivable conclusion that Johnson's jury
could have reached in finding Johnson guilty of first-degree robbery was that Johnson threatened the victim with the
BB gun in the process of robbing her. The jury therefore made the finding of the NERA violent crime predicate
beyond a reasonable doubt. (Pp. 30-33)
6. Although the Court finds this construction of NERA to be a new rule, it declines to apply that rule retroactively.
Retroactive application would result in post-conviction petitions from a large number of inmates currently serving
NERA sentences. In the vast majority of those cases, however, a jury deliberation on the violent crime issue would
not be likely to produce a different result, and the original sentences would be reaffirmed. In addition, the Court's
decision rests on a theory of statutory interpretation, not on principles of constitutional law. Consequently,
prospective application will not deprive NERA-sentenced inmates of any constitutional right. (Pp. 33-35)
7. The Court further finds that NERA survives Johnson's challenge under the Cruel and Unusual Punishment
Clause of the Eight Amendment of the U.S. Constitution. The punishments imposed by NERA do not run afoul of
objective standards of decency; nor are they grossly disproportionate. It is equally clear that the legislature's
objective of increasing the punitive consequences of violent crime as defined by NERA is a valid and legitimate
one. (Pp. 35-37)
Judgment of the Appellate Division is AFFIRMED, as MODIFIED.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, LaVECCHIA, and ZAZZALI join
in JUSTICE STEIN's opinion. JUSTICE VERNIERO did not participate.
SUPREME COURT OF NEW JERSEY
A-
83 September Term 1999
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARTEL JOHNSON, a/k/a HASSAN
K. MUHAMMAD,
Defendant-Appellant.
Argued October 11, 2000 -- Decided February 28, 2001
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at
325 N.J. Super. 78 (1999).
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.
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.
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 (1999). We initially denied certification. 163 N.J. 12 (2000). However, we subsequently vacated that order and granted certification limited to Johnson's constitutional challenges to NERA. 163 N.J. 393 (2000). Following our grant of certification, the Supreme Court of the United States decided Apprendi v. New Jersey, __ U.S. __, 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.
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 v. New Jersey, __ 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, 157 N.J. 7, 51 (Stein., J., dissenting), rev'd, Apprendi v. New Jersey, supra (1999), we relate those precedents to the challenged provisions of NERA.
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) those factors do not increase the defendant's maximum sentence, and (2) the statute does not appear to represent a legislative effort to evade the reasonable doubt requirement. Id. at 87-89, 106 S. Ct. at 2417-18, 91 L. Ed. 2d at 77-78. Applying that framework to the Pennsylvania statute, the majority held:
Section 9712 neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty; it operates solely to limit the sentencing court's discretion in selecting a penalty within the range already available to it without the special finding of a visible possession of a firearm. Section 9712 "ups the ante" for the defendant only by raising to five years the minimum sentence which may be imposed within the statutory plan. The statute gives no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense. Petitioners' claim that visible possession under the Pennsylvania statute is "really" an element of the offenses for which they are being punished -- that Pennsylvania has in effect defined a new set of upgraded felonies -- would have at least more superficial appeal if a finding of visible possession exposed them to greater or additional punishment, cf. 18 U.S.C. §2113(d) (providing separate and greater punishment for bank robberies accomplished through “use of a dangerous weapon or device”), but it does not.
[Id. at 87-88, 106 S. Ct. at 2417, 91 L. Ed. 2d at 77-78 (citations omitted).]
Both of the dissenting opinions in McMillan criticized the majority for, essentially, abdicating to the States the question of whether a specific fact constitutes an "element" of an offense. Id. at 93, 106 S. Ct. at 2420, 91 L. Ed. 2d at 81 (Marshall, J., dissenting); id. at 96, 106 S. Ct. at 2421, 91 L. Ed. 2d at 82 (Stevens, J., dissenting). As Justice Stevens noted,
[t]oday the Court holds that state legislatures may not only define the offense with which a criminal defendant is charged, but may also authoritatively determine that the conduct so described -- i.e., the prohibited activity which subjects the defendant to criminal sanctions -- is not an element of the crime which the Due Process Clause requires to be proved by the prosecution beyond a reasonable doubt. In my view, a state legislature may not dispense with the requirement of proof beyond a reasonable doubt for conduct that it targets for severe criminal penalties. Because the Pennsylvania statute challenged in this case describes conduct that the Pennsylvania Legislature obviously intended to prohibit, and because it mandates lengthy incarceration for the same, I believe that the conduct so described is an element of the criminal offense to which the proof beyond a reasonable doubt requirement applies.
. . .
It follows, I submit, that if a State provides
that a specific component of a prohibited
transaction shall give rise both to a special
stigma and to a special punishment, that component
must be treated as a 'fact necessary to constitute
the crime' within the meaning of our holding in In
re Winship.
[Id. at 96, 103, 106 S. Ct. at
2421, 2425, 91 L. Ed.
2d at
83, 87.]
The Supreme Court relied on the McMillan majority in
upholding
8 U.S.C.A.
§1326 in Almendarez-Torres v. United
States, supra. That statute authorizes a prison term of up to
two years for any previously deported alien who returns to the
United States without special permission. Subsection (b)(2) of
the statute provides that "any alien described" in subsection (a)
whose initial "deportation was subsequent to a conviction for
commission of an aggravated felony . . . shall be fined under
such title, imprisoned not more than 20 years, or both."
8 U.S.C.A.
§1326(b)(2). The question in Almendarez-Torres was
whether subsection (b)(2) defines a separate crime the elements
of which -- initial deportation subsequent to a conviction for
commission of an aggravated felony -- would have to be proved to
a jury beyond a reasonable doubt, or simply authorizes an
enhanced penalty. Almendarez-Torres, supra, 523 U.S. at 226, 118
S. Ct. at 1222, 140 L. Ed.
2d at 357. The Court held, by a 5-4
vote, that Congress intended to set forth a sentencing factor in
§ 1326(b)(2), as opposed to a separate criminal offense, and that
as such the factual predicate for finding application of the
provision -- a prior conviction of an aggravated felony -- need
not be found by the convicting jury. Id. at 235, 118 S. Ct. at
1226, 140 L. Ed.
2d at 363. The majority began with an analysis
of the statute's text, which did not specifically delegate the
task of finding the recidivism element to the sentencing judge or
jury. After considering "the statute's language, structure,
subject matter, context, and history," id. at 228, 118 S. Ct. at
1223, 140 L. Ed.
2d at 358, the Court found it "reasonably clear"
that Congress "intended to set forth a sentencing factor in
subsection (b)(2) and not a separate criminal offense." Id. at
230, 235, 118 S. Ct. at 1224, 1226, 140 L. Ed.
2d at 359, 363.
The majority then considered the constitutionality of §
1326(b)(2) as interpreted. Relying heavily on McMillan, the
majority compared § 1326 with the Pennsylvania statute upheld in
McMillan and found that § 1326 was similar in all pertinent
respects to the McMillan statute, with the sole exception that
"the circumstance that the sentencing factor at issue here (the
prior conviction) triggers an increase in the maximum permissive
sentence, while the sentencing factor at issue in McMillan
triggered a mandatory minimum sentence." Id. at 244, 118 S. Ct.
at 1231, 140 L. Ed.
2d at 369. The majority concluded, however,
that the penalty increase did not render § 1326 unconstitutional
because (1) the sentencing factor at issue -- recidivism -- "is a
traditional, if not the most traditional, basis for a sentencing
court's increasing an offender's sentence," id. at 243-45, 118 S.
Ct. at 1230-31, 140 L. Ed.
2d at 368-69; (2) the difference
between a permissive maximum and a mandatory minimum sentence
"does not systematically, or normally, work to the disadvantage
of a criminal defendant," id. at 245, 118 S. Ct. at 1231, 140 L.
Ed.
2d at 369; (3) the broad permissive sentencing range created
by the statute "does not itself create significantly greater
unfairness," id. at 246, 118 S. Ct. at 1232, 140 L. Ed.
2d at
369; and (4) "the remaining McMillan factors support the
conclusion that Congress has the constitutional power to treat
the feature before us -- prior conviction of an aggravated felony
-- as a sentencing factor for this particular offense . . . ."
Id. at 246, 118 S. Ct. at 1232, 140 L. Ed.
2d at 369-70.
Justice Scalia's dissent criticized the majority for over-
reading the McMillan holding and for ignoring the textual
ambiguity in the statute. The dissent began by recognizing that
"[i]n all our prior cases bearing upon the issue . . . we
confronted a criminal statute or state-court criminal ruling that
unambiguously relieved the prosecution of the burden of proving a
critical fact to a jury beyond a reasonable doubt." Id. at 248-
49, 118 S. Ct. at 1233, 140 L. Ed.
2d at 371 (Scalia, J.,
dissenting). The distinction between those statutes and § 1326,
in the dissent's view, required application of the doctrine of
"constitutional doubt" -- "where a statute is susceptible of two
constructions, by one of which grave and doubtful constitutional
questions arise and by the other of which such questions are
avoided, our duty is to adopt the latter.'" Id. at 250, 118 S.
Ct. at 1234, 140 L. Ed.
2d at 372 (quoting United States ex rel.
Attorney General v. Delaware & Hudson Co.,
213 U.S. 366, 408,
29 S. Ct. 527, 536,
53 L. Ed.2d 836, 849 (1909)). The
"constitutional doubt" inherent in the majority's interpretation
of § 1326 arose, in the dissent's view, primarily from the fact -
- rejected as inconsequential by the majority -- that § 1326,
unlike the statute in McMillan, increased the available sentence
rather than simply limiting the sentencing court's discretion
within the sentencing range. Id. at 256, 118 S. Ct. at 1236-37,
140 L. Ed.
2d at 377. The dissent concluded that
there was, until today's unnecessary
resolution of the point, serious doubt
whether the Constitution permits a
defendant's sentencing exposure to be
increased tenfold on the basis of a fact that
is not charged, tried to a jury, and found
beyond a reasonable doubt. If the Court
wishes to abandon the doctrine of
constitutional doubt, it should do so
forthrightly, rather than by declaring
certainty on a point that is clouded in
doubt.
[Id. at 260, 118 S. Ct. at 1239,
140 L. Ed.
2d at 379 (quotations
omitted).]
The breadth of the Court's holding in McMillan reached its
zenith in Almendarez-Torres. One year after that decision, in
Jones v. United States,
526 U. S. 227,
119 S. Ct. 1215,
143 L.
Ed.2d 311 (1999), the Court considered the federal carjacking
statute, which then read as follows:
Whoever, possessing a firearm as defined in
section 921 of this title, takes a motor vehicle
that has been transported, shipped, or received in
interstate or foreign commerce from the person or
presence of another by force and violence or by
intimidation, or attempts to do so, shall _-
(1) be fined under this title or imprisoned not
more than 15 years, or both,
(2) if serious bodily injury (as defined in
section 1365 of this title)results, be fined under
this title or imprisoned not more than 25 years,
or both, and
(3)if death results, be fined under this title or
imprisoned for any number of years up to life, or
both.
[
18 U.S.C.A.
§2119.]
The petitioner in Jones was convicted of the carjacking
offense, but neither the indictment nor the District Court's jury
instructions contained any reference to facts relating to the
victim's injuries. Jones, supra, 526 U.S. at 227, 119 S. Ct. at
1216, 143 L. Ed.
2d at 318. Jones' presentence report, however,
recommended that Jones be sentenced to a twenty-five-year term in
accordance with subsection (3) of the statute. The court
concluded that the "serious bodily injury" factor was a
sentencing factor and not an element of the offense, and imposed
a twenty-five-year term after finding, by a preponderance of the
evidence, that Jones caused the victim to sustain serious bodily
injury. Ibid.
The Supreme Court reversed in a 5-4 decision. The majority,
departing from the Court's approach in Almendarez-Torres, relied
on the doctrine of constitutional doubt and construed the
carjacking statute as defining three distinct offenses, rather
than one offense with two sentencing factors. Id. at 239-40, 119
S. Ct. at 1222, 143 L. Ed.
2d at 324. The Court distinguished
Almendarez-Torres by limiting the scope of that decision to the
sentencing factor of recidivism: "[t]he majority and the
dissenters in Almendarez-Torres disagreed over the legitimacy of
the Court's decision to restrict its holding to recidivism, but
both sides agreed that the Court had done just that." Id. at
249-50 n.10, 119 S. Ct. at 1227, 143 L. Ed.
2d at 330.
Concurring, Justices Stevens and Scalia both expressed the
belief that "it is unconstitutional for a legislature to remove
from the jury the assessment of facts that increase the
prescribed range of penalties to which a criminal defendant is
exposed." Id. at 250, 119 S. Ct. at 1228, 143 L. Ed.
2d at 332
(Stevens, J., concurring).
The Supreme Court most recently considered the application
of the Winship doctrine in the context of a sentencing statute in
Apprendi v. New Jersey, supra. By another 5-4 vote, the Court in
Apprendi reversed a decision of this Court and held
unconstitutional the New Jersey Hate Crimes Act, N.J.S.A. 2C:44-
3(e). That statute provided for an "extended term" of
imprisonment for convictions where the trial judge found, by a
preponderance of the evidence, that "[t]he defendant in
committing the crime acted with a purpose to intimidate an
individual or group of individuals because of race, color,
gender, handicap, religion, sexual orientation or ethnicity."
N.J.S.A. 2C:44-3(e). The petitioner in Apprendi was convicted of
a second-degree crime that normally would subject a defendant to
a term of imprisonment of between five and ten years. N.J.S.A.
2C:43-6(a)(2). The extended term authorized by the hate crime
law for a second-degree offense increased that term to between
ten and twenty years. N.J.S.A. 2C:43-7(a)(3).
The Apprendi majority began its analysis with a detailed
study of the historical foundation of the right to a jury trial
and the reasonable doubt requirement. The majority cited case
law and commentary from our English common law roots through the
nineteenth century, as well as modern American jurisprudence, and
concluded that those foundational sources pointed definitively to
a broad understanding of the jury trial and reasonable doubt
requirements:
The evidence we describe that punishment was,
by law, tied to the offense (enabling the
defendant to discern, barring pardon or
clergy, his punishment from the face of the
indictment), and the evidence that American
judges have exercised sentencing discretion
within a legally prescribed range (enabling
the defendant to discern from the statute of
indictment what maximum punishment under that
statute could bring), point to a single,
consistent conclusion: The judge's role in
sentencing is constrained at its outer limits
by the facts alleged in the indictment and
found by the jury. Put simply, facts that
expose a defendant to a punishment greater
than that otherwise legally prescribed were
by definition "elements" of a separate legal
offense.
[Apprendi, supra, __ U.S. at __
n.10, 120 S. Ct. at 2359, 147 L.
Ed.
2d at 450-51.]
Reviewing the post-Winship cases in light of that historical
gloss, the majority concluded that because the New Jersey hate
crime law increased the defendant's maximum sentencing exposure
based on a judge's finding pursuant to a preponderance of the
evidence standard, the statute violated the Due Process Clause:
If a defendant faces punishment beyond that
provided by statute when an offense is
committed under certain circumstances but not
others, it is obvious that both the loss of
liberty and the stigma attaching to the
offenses are heightened; it necessarily
follows that the defendant should not -- at
the moment the State is put to proof of those
circumstances -- be deprived of protections
that have, until that point, unquestionably
attached.
[Id., __ U.S. at __, 120 S.
Ct. at 2359, 147 L. Ed.
2d at
451.]
The majority noted specifically that its reasoning did not
necessarily conflict with the narrow holdings of McMillan or
Almendarez-Torres, because the statute in McMillan did not
increase the overall maximum prison term, id. at __, 120 S. Ct.
at 2365, 147 L. Ed.
2d at 458, and the statute in Almendarez-
Torres dealt with the unique sentencing factor of "a prior
judgment of conviction entered in a proceeding in which the
defendant had the right to a jury trial and the right to require
the prosecutor to prove guilt beyond a reasonable doubt. . . ."
Id. at __, 120 S. Ct. at 2366, 147 L. Ed.
2d at 459. However, an
undeniable tension, explicitly recognized in Justice O'Connor's
dissent, id. at __, 120 S. Ct. at 2385, 147 L. Ed.
2d at 481
(O'Connor, J., dissenting), exists between the formal
distinctions drawn between the cases and the language of the
Apprendi majority indicating that "the relevant inquiry is not
one of form, but of effect -- does the required finding expose
the defendant to a greater punishment than that authorized by the
jury's guilty verdict?" Id. at __, 120 S. Ct. at 2365, 147 L.
Ed.
2d at 457.
Recognizing that tension, the majority made explicit its
reservations about the future application of McMillan, although
it specifically avoided reconsideration of McMillan's holding:
We do not overrule McMillan. We limit its
holding to cases that do not involve the
imposition of a sentence more severe than the
statutory maximum for the offense established
by the jury's verdict -- a limitation
identified in the McMillan opinion itself.
Conscious of the likelihood that legislative
decisions may have been made in reliance on
McMillan, we reserve for another day the
question whether stare decisis considerations
preclude reconsideration of its narrower
holding.
[Id. at __ n.13, 120 S. Ct. at
2361, 147 L. Ed.
2d at 453.]
The majority expressed like reservations about Almendarez-
Torres:
Even though it is arguable that Almendarez-
Torres was incorrectly decided, and that a
logical application of our reasoning today
should apply if the recidivist issue were
contested, Apprendi does not contest the
decision's validity and we need not revisit
it for purposes of our decision today to
treat the case as a narrow exception to the
general rule we recalled at the outset.
[Id. at __, 120 S. Ct. at 2362, 147
L. Ed.
2d at 454-55.]
Although the majority declined to address the continuing
vitality of McMillan and Almendarez-Torres, Justice Thomas'
concurrence concluded that both McMillan and Almendarez-Torres
should be reversed. Id. at __, 120 S. Ct. at 2367, 147 L. Ed.
2d
at 472 (Thomas, J., concurring) ("The consequence of the above
discussion for our decisions in Almendarez-Torres and McMillan
should be plain enough . . . .). Justice Thomas began by echoing
the historical analysis conducted by the majority:
A long line of essentially uniform authority
addressing accusations, and stretching from
the earliest reported cases after the
founding until well into the 20th century,
establishes that the original understanding
of which facts are elements was even broader
than the rule that the Court adopts today.
This authority establishes that a "crime"
includes every fact that is by law a basis
for imposing or increasing punishment (in
contrast with a fact that mitigates
punishment).
[Id. at __, 120 S. Ct. at 2368, 147
L. Ed.
2d at 461 (Thomas, J.,
concurring).]
Considering McMillan in light of those common-law roots, the
concurrence found it "clear that the common-law rule would cover
the McMillan situation of a mandatory-minimum sentence”:
No doubt a defendant could, under such a
scheme, find himself sentenced to the same
term to which he could have been sentenced
absent the mandatory minimum. The range for
his underlying crime could be 0 to 10 years,
with the mandatory minimum of 5 years, and he
could be sentenced to 7. (Of course, a
similar scenario is possible with an
increased maximum.) But it is equally true
that his expected punishment has increased as
a result of the narrowed range and that the
prosecution is empowered, by invoking the
mandatory minimum, to require the judge to
impose a higher punishment than he might
wish. The mandatory minimum entitles the
government to more than it would otherwise be
entitled (5 to 10 years, rather than 0 to 10
years and the risk of a sentence below 5).
Thus, the fact triggering the mandatory
minimum is part of the punishment sought to
be inflicted; it undoubtedly enters into the
punishment so as to aggravate it, and it is
an act to which the law affixes punishment.
[Id. at __, 120 S. Ct. at 2379, 147
L. Ed.
2d at 474 (Thomas, J.,
concurring) (citations and
quotations omitted).]
B
As noted, NERA 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. The sentencing court interpreted NERA to empower the
court, as opposed to a jury, to make the factual determination of
whether Johnson's underlying conduct in his convictions
constituted violent crime within the meaning of the Act. The
text of NERA does not specifically delegate that responsibility.
Subsection (e) of the Act provides that
[a] court shall not impose sentence pursuant
to this section unless the ground therefor
has been established at a hearing after the
conviction of the defendant and on written
notice to him of the ground proposed. The
defendant shall have the right to hear and
controvert the evidence against him and to
offer evidence upon the issue.
[N.J.S.A. 2C:43-7.2(e).]
Thus, NERA simply requires that the NERA factor be established at
a hearing after the defendant's conviction, without specifying
either whether the hearing is before the judge or the jury, or
the applicable standard of proof.
The language of subsection (e) stands in stark contrast to
that of the Pennsylvania statute upheld in McMillan, the text of
which specifically delegated to the sentencing court, by a
preponderance of the evidence standard, the determination of
whether a defendant "visibly possessed a firearm" in the
underlying conviction:
Provisions of this section shall not be an
element of the crime and notice thereof to
the defendant shall not be required prior to
conviction, but reasonable notice of the
Commonwealth's intention to proceed under
this section shall be provided after
conviction and before sentencing. The
applicability of this section shall be
determined at sentencing. The court shall
consider any evidence presented at trial and
shall afford the Commonwealth and the
defendant an opportunity to present any
additional evidence and shall determine, by a
preponderance of the evidence, if the section
is applicable.
We have adopted in our jurisprudence a cognate of the "constitutional doubt" doctrine applied by the dissent in Almendarez-Torres and the majority in Jones. "Unless compelled to do otherwise, courts seek to avoid a statutory interpretation that might give rise to serious constitutional questions." Silverman v. Berkson, 141 N.J. 412, 416 (1995). "Under New Jersey law, a challenged statute will be construed to avoid constitutional defects if the statute is reasonably susceptible of such construction." State Bd. of Higher Ed. v. Bd. of Dir. of Shelton College, 90 N.J. 470, 478 (1982). The power and obligation inherent in this State's constitutional doubt doctrine "begins with the assumption that the legislature intended to act in a constitutional manner." Right to Choose v. Byrne, 91 N.J. 287, 311 (1982).
Johnson makes strenuous efforts to distinguish NERA from the Pennsylvania statute upheld in McMillan. We find it unnecessary, however, to reach that issue, because we infer that the continuing vitality of McMillan itself may be in question. As noted, both the principal concurrence and dissent in Apprendi (representing collectively a majority of Justices) construed the majority opinion as mandating reversal of McMillan and invalidation of the mandatory minimum statutes in the mold of the Pennsylvania law. Apprendi, supra, __ U.S. at __, 120 S. Ct. at 2379, 147 L. Ed. 2d at 472 (Thomas, J., concurring); __ U.S. at __, 120 S. Ct. at 2385, 147 L. Ed. 2d at 481 (O'Connor, J., dissenting) (“[I]t is incumbent on the Court not only to admit that it is overruling McMillan, but also to explain why such a course of action is appropriate under normal principles of stare decisis.”). The Apprendi majority explicitly reserved that question for an occasion when the issue would be squarely presented to the Court. Id. at __ n.13, 120 S. Ct. at 2361, 147 L. Ed. 2d at 453.
The sentiments expressed in Apprendi about the actual effect of a sentence are reinforced by the laws and jurisprudence of this State. Concededly, a NERA sentence does not impose an increased maximum prison sentence beyond that otherwise available under the Criminal Code. However, “we have always recognized that real time is the realistic and practical measure of the punishment imposed.” State v. Mosley, 335 N.J. Super. 144, 157 (App. Div. 2000). See also State v. Pennington, 154 N.J. 344, 357 (1998) (noting that, pursuant to N.J.S.A. 2C:44-1c(2), “a sentencing court is required to consider parole consequences in sentencing”); State v. Kovack, 91 N.J. 476, 482 (1982) (“Under the New Jersey Code of Criminal Justice the parole ineligibility is the backbone of the sentence.”); State v. Maguire, 84 N.J. 508, 530 (1980) (“The reality stressed by [defendants and amicus] is the duration of a sentence, but we suggest that the ultimate reality is the period of actual imprisonment.”); State v. Richardson, 208 N.J. Super. 399, 413-14 (App. Div.), certif. denied, 105 N.J. 552 (1986) (“[T]he period of actual imprisonment before being released on parole is the real sentence.”). Indeed, our rules of criminal practice require the court at the time of sentencing to state the real time probable as the result of the sentence imposed, including not only the defendant's primary eligibility date but also the impact of credits against the sentence. R. 3:21-4(j).
Understood in that context, the "punishment" imposed by NERA could be more severe than the punishment imposed by the hate crimes law held unconstitutional in Apprendi. A second-degree offender under the hate crimes law would be subject to a ten- to twenty-year term, rather than the normal five- to ten-year term. N.J.S.A. 2C:43-6(a)(2). In Apprendi, the Law Division sentenced the petitioner, a second-degree offender, to a twelve-year term with a four-year parole disqualifier. State v. Apprendi, supra, 159 N.J. at 11. In contrast, a second-degree NERA offender is subject to a presumptive term of seven years, N.J.S.A. 2C:44- 1(f), but under NERA would face a mandatory parole disqualifier of almost six years, or nearly two years greater than the mandatory-minimum sentence received by the petitioner in Apprendi. That a typical mandatory sentence imposed for a second-degree offender under the statute held unconstitutional in Apprendi could be less than the sentence mandated for a like offender under NERA provides force to the contention that the application of NERA could be understood to require Winship protections. That argument is bolstered by the fact that other statutes in the Code imposing mandatory parole ineligibility terms allow the sentencing court some leeway in determining the mandatory minimum period, see, e.g., N.J.S.A. 2C:11-5(b)(1), 2C:14-6, 2C:20-11(c), 2C:43-6(c), whereas NERA affords no discretion -- the minimum term is simply 85% of the base term, regardless of specific circumstances in the record that might otherwise indicate the imposition of a lower term.
Beyond the punishment factor, the Supreme Court in Apprendi also noted the elemental nature of the sentencing factor in that case: “It is as clear as day that this hate crime law defines a particular kind of prohibited intent, and a particular intent is more often than not the sine qua non of a violation of a criminal law.” Apprendi, supra, __ U.S. at __ n.18, 120 S. Ct. at 2364, 147 L. Ed. 2d at 457. Such is also the case here. As the Appellate Division noted in Mosley, supra, NERA
does not address the circumstances surrounding the commission of a crime, i.e., firearm possession or use, but, rather, particularly well-understood and statutorily defined elements of a crime. . . . 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.
Because of the uncertainty expressed by the U.S. Supreme Court respecting the continuing vitality of McMillan, and the broad understanding of "punishment" recognized by this Court, we will construe subsection (e) of NERA to require that the "violent crime" condition must be submitted to a jury and found beyond a reasonable doubt.See footnote 22 To do otherwise would be to subject NERA to constitutional challenge. We are confident that the legislature would far prefer our construction of NERA to its potential invalidation under the Due Process Clause.
We acknowledge that our Criminal Code contains other provisions that, like NERA, increase mandatory minimum terms based on factual predicates found by the sentencing judge. Any questions concerning the validity of those statutes are not before us. Our disposition also renders it unnecessary for us to address Johnson's argument that subsection (c) of NERA, which imposes a mandatory three- to five-year period of post-release parole supervision, constitutes an increase in the overall maximum term and therefore violates the narrow holding of Apprendi. Johnson does not raise, and we therefore do not consider, any other potential challenges to subsection (c).
We find that the factual predicate for a NERA sentence must be found by a jury under the “beyond a reasonable doubt” standard. We solicit the recommendation of our Criminal Practice Committee concerning appropriate procedures, including a NERA jury charge, that will satisfy the requirements of subsection (e) of NERA as thus construed. We also invite the Criminal Practice Committee to consider whether R. 3:21-4(f) should be amended to require notice by the prosecutor of intent to impose a NERA sentence earlier than fourteen days after a guilty plea or return of the verdict.
A person is guilty of robbery if, in the course of committing a theft, he:
(1) inflicts bodily injury or uses force upon another; or
(2) threatens another with or purposely puts him in fear of immediate bodily injury; or
(3) commits or threatens immediately to commit any crime of the first or second degree.
. . . .
Robbery is a crime of the second degree,
except that it is a crime of the first degree
if in the course of committing the theft the
actor attempts to kill anyone, or purposely
inflicts or attempts to inflict serious
bodily injury, or is armed with, or uses or
threatens the immediate use of a deadly
weapon.
Under the law, a person is . . . guilty of armed robbery if in the course of committing a theft, he threatens another with or purposely puts the other person in fear of immediate bodily injury and during the course of that was armed with or threatened the immediate use of a deadly weapon. So that in order for you to find the defendant guilty of the crime of armed robbery, the State has to prove beyond a reasonable doubt each of the following elements: First, that the defendant was in the course of committing a theft. Second, that while in the course of committing that theft, the defendant threatened the victim with or purposely put her in fear of immediate bodily injury and that during the course thereof, the defendant was armed with or threatened the immediate use of a deadly weapon.
As noted, NERA defines "violent crime" as, for present purposes,
any crime in which the actor “uses or threatens the immediate use
of a deadly weapon.” N.J.S.A. 2C:43-7.2(d). Thus, the elements
of the NERA “violent crime” factor do not overlap completely with
the elements of first-degree robbery, because a defendant could
be convicted of first-degree robbery where the defendant
threatens the victim and is armed with a deadly weapon but does
not threaten the victim with the deadly weapon.
The only witness to the August 8 robbery who testified at
trial was the victim, and she testified on both direct and cross
examination that Johnson aimed the BB gun at her. That testimony
was uncontradicted by any other evidence at trial. Thus, in view
of the evidence adduced at trial, the only conceivable conclusion
that Johnson's jury could have reached in finding Johnson guilty
of first-degree robbery was that Johnson threatened the victim
with the BB gun in the process of robbing her. Accordingly,
notwithstanding the fact that the trial court failed to
specifically instruct the jury to find the NERA violent crime
predicate, we affirm Johnson's sentence because the facts adduced
at trial establish that the jury made that finding beyond a
reasonable doubt.
Second, we emphasize that our decision today rests on a theory of statutory interpretation, not on principles of constitutional law. Consequently, prospective application will not, under this ruling, deprive NERA-sentenced inmates of any constitutional right established in a holding of this Court or the United States Supreme Court. Accordingly, we will apply the rule we have announced today to the case at bar, to all cases on direct appeal on the date of this opinion where the appellant is challenging the failure of the NERA offense to be proven to a jury beyond a reasonable doubt, and to trials of cases in which NERA is implicated that commence after the filing date of this opinion.
III
Johnson also contends that the mandatory minimums imposed by
NERA violate the Cruel and Unusual Punishment Clause of the
Eighth Amendment to the U.S. Constitution and the corresponding
provision in Article I, paragraph 12 of the New Jersey
Constitution. U.S. Const. amends. VIII, XIV; N.J. Const. art. I,
par. 12.
We have developed a three-part test for determining whether
a criminal penalty constitutes cruel and unusual punishment.
State v. Maldonado,
137 N.J. 536, 556 (1994). We consider,
first, whether the punishment conforms with contemporary
standards of decency; second, whether the punishment is grossly
disproportionate to the offense; and third, whether the
punishment goes beyond what is necessary to accomplish any
legitimate penological objective. Ibid. Absent a substantial
showing that the statute violates those principles, the judiciary
must respect the legislative will and enforce the punishment.
State v. Hampton,
61 N.J. 250, 274 (1972).
We find it apparent that NERA survives Eighth Amendment
scrutiny. At least twenty-seven other States and the District of
Columbia have enacted legislation similar to NERA. Bureau of
U.S. Statistics, U.S. Dep't of Justice Special Report: Truth in
Sentencing in State Prisons at 2 (Jan. 1999). When challenged,
those laws have survived constitutional scrutiny. See State v.
Lara,
580 N.W.2d 783 (Iowa), cert. denied,
525 U.S. 1007,
119 S.
Ct. 523,
142 L. Ed.2d 434 (1998); State v. Williams,
936 S.W.2d 828 (Mo. Ct. App. 1996). In addition, statutes imposing severe
penalties have been enacted in New Jersey and upheld by this
Court. See State v. Oliver,
162 N.J. 580 (2000) (holding that
sentencing under Three Strikes Law, N.J.S.A. 2C:43-7.1a, does not
constitute cruel and unusual punishment); Maldonado, supra, 137
N.J. at 556-60 (upholding N.J.S.A. 2C:35-9, which imposes strict
liability on manufacturers and distributors of certain controlled
dangerous substances when death results from ingestion of those
substances); State v. Des Martes,
92 N.J. 62, 82 (1983) (holding
that sentencing under Graves Act, N.J.S.A. 2C:44-3, does not
constitute cruel and unusual punishment). The punishments
imposed by NERA neither run afoul of objective standards of
decency, nor are they grossly disproportionate to the violent
crime that NERA punishes. It is equally clear that the
legislature's objective of increasing the punitive consequences
of violent crime as defined by NERA is a valid and legitimate
one.
IV
In summary, we interpret subsection (e) of NERA to require
that a jury dete