STATE OF NEW JERSEY v. HOWARD PARKS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0336-04T20336-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HOWARD PARKS,

Defendant-Appellant.

_________________________________________________

 

Submitted May 2, 2006 - Decided May 18, 2006

Before Judges Axelrad and Payne.

On appeal from Superior Court of New Jersey,

Law Division, Union County, I-00-03-0312.

Greenberg Traurig, attorneys for appellant

(Eric Tunis and Rebecca Frost on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent

(Steven J. Kaflowitz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1, and upon the State's motion pursuant to the "Three Strikes" statute, N.J.S.A. 2C:43-7.1, at sentencing a life term without parole was imposed. The predicate three offenses consisted of the armed robbery conviction for which sentencing was pending; a conviction rendered on a plea in the United States District Court to bank robbery, 18 U.S.C.A. 2113(a) and (d), for which defendant was sentenced on December 1, 2000; and a conviction rendered in state court for first-degree kidnapping, N.J.S.A. 2C:13-1b(1), and first-degree robbery, N.J.S.A. 2C:15-1, for which defendant was sentenced on January 17, 2001. In an unreported opinion rendered on appeal of the present matter, we affirmed defendant's conviction and sustained the constitutionality of the Three Strikes statute, but we found for purposes of implementing the statute that the record was insufficient to determine whether defendant's conviction for robbery in federal court was substantially equivalent to a conviction in state court pursuant to N.J.S.A. 2C:15-1. We remanded the case to permit the issue to be addressed. State v. Parks, Docket No. A-3294-01T4 (App. Div. November 24, 2003). Defendant's petition for certification was denied. State v. Parks, 179 N.J. 311 (2004).

In a written opinion dated April 29, 2004, the sentencing judge found substantial equivalency. He found that bank robbery in violation of 18 U.S.C.A. 2113(a) and (d) has as its essential elements (1) that defendant took money from a federally insured bank; (2) by force and violence and by intimidation; and (3) in committing the offense, he knowingly and willfully assaulted or put in jeopardy the life of a person (4) by use of a "dangerous" weapon. The judge noted that a "dangerous weapon" has been defined as a weapon or device that "instills fear in the average citizen," creating "an immediate danger that a violent response will ensue." McLaughlin v. U.S., 476 U.S. 16, 18, 106 S. Ct. 1677, 1678, 90 L. Ed. 2d 15, 18 (1986).

The judge then listed the elements of first-degree armed robbery pursuant to N.J.S.A. 2C:15-1 as requiring proof that (1) while in the course of committing a theft; (2) the defendant threatened another with or purposely put him in fear of immediate bodily injury; (3) while armed with and/or threatening the immediate use of a deadly weapon. He found that a "deadly weapon" is defined by New Jersey statute as a device "capable of producing death or serious bodily injury or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury." N.J.S.A. 2C:11-1c.

The judge then found equivalence between deadly and dangerous weapons and, comparing the federal and state robbery statutes, reached the following conclusion:

Each of these offenses requires a theft during which the actor is armed with a deadly weapon. Under the federal statute, the actor must place the victim's life in jeopardy. State law requires a threat of immediate bodily injury with a device capable of causing death or serious bodily injury.

The maximum sentence for armed bank robbery under 18 U.S.C. 2113(d) is 25 years and the maximum regular term for armed robbery N.J.S.A. 2C:15-1 is 20 years.

The nature, extent and consequences of the federal crime are qualitatively similar to the state crime.

The judge therefore found the requirements of the Three Strikes statute to have been met, and he found no need on remand to modify the life sentence that he had previously imposed.

On appeal, defendant raises the following arguments:

POINT ONE: IN LIGHT OF SHEPARD V. UNITED STATES, THE THREE STRIKES ACT VIOLATES THE CONSTITUTION OF NEW JERSEY AND, THEREFORE, MR. PARKS' SENTENCE SHOULD BE VACATED.

A. Almendarez-Torres and Its Progeny.

B. Shepard.

C. The New Jersey Constitution Does Not Recognize the Almendarez-Torres Exception To The Apprendi Rule.

D. The Judicial Factfinding Authorized Under The Three Strikes Act Falls Outside The Almendarez-Torres Exception to the Apprendi Rule.

POINT TWO: THE TRIAL COURT ERRED ON REMAND IN FINDING THAT DEFENDANT'S FEDERAL CONVICTION WAS A PREDICATE OFFENSE UNDER THE THREE STRIKES ACT.

We affirm.

I.

In a series of cases, the United States Supreme Court has recognized a "prior conviction" exception to the requirement that a fact that increases the sentencing exposure of a defendant beyond the ordinary maximum term for the crime must be found by a jury to exist beyond a reasonable doubt. In a five- to-four-decision in Almendarez-Torres v. U.S., 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), a due process challenge by a convicted felon to enhanced sentencing under 8 U.S.C.A. 1326(b)(2), a statute that criminalizes the return to the United States of deported aliens without permission and markedly increases the penalties for those whose deportation was subsequent to conviction for an aggravated felony, the Supreme Court held that recidivism, demonstrated by a prior felony conviction, is not an element of the offense that must be charged in the indictment and proven to the jury beyond a reasonable doubt. 523 U.S. at 226-27, 118 S. Ct. at 1222, 140 L. Ed. 2d at 357. The Court found among other things that recidivism "is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence." Id. at 243, 118 S. Ct. at 1230, 140 L. Ed. 2d at 368. In Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), a due process challenge to sentence enhancement pursuant to New Jersey's hate crime statute, the Court found the judicial factfinding that occurred in applying the statute to defendant to be unconstitutional, but observed no constitutional violation in the use of a prior conviction by a judge as grounds for sentence enhancement. "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S. Ct. at 2362-63, 147 L. Ed. 2d at 455. In Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), a successful Sixth Amendment challenge to Washington's sentencing scheme, the Court held that: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 301, 124 S. Ct. at 2536, 159 L. Ed. 2d at 412.

In support of a claim that New Jersey's Three Strikes statute is facially unconstitutional, defendant argues that the concurrence by Justice Thomas in Shepard v. United States, 544 U.S. 13, 27, 125 S. Ct. 1254, 1264, 161 L. Ed. 2d 205, 219 (2005), a decision rendered a year after Blakely, in which he found Almendarez-Torres to have been wrongly decided, aligns him with the four dissenters in Almendarez-Torres, thereby creating a majority block, consisting of Justices Scalia, Stevens, Souter, Ginzberg, and Thomas, that if presented with the proper case, would find unconstitutional the "prior conviction" exception previously recognized in Blakely, Apprendi, and Almendarez-Torres.

Although defendant recognizes that in interpreting the United States Constitution, adherence to federal precedent is required until such time as that precedent is overruled, in a thoughtful brief, defendant invites us to find the prior conviction exception to be unconstitutional under the New Jersey Constitution, thereby prohibiting the imposition by a judge of a life sentence upon him under the Three Strikes law, and he claims that such a conclusion has been presaged by the New Jersey Supreme Court in its decisions in State v. Natale, 184 N.J. 458 (2005), State v. Abdullah, 184 N.J. 497 (2005) and State v. Franklin, 184 N.J. 516 (2005). Defendant argues further that even if the Three Strikes law is constitutional on its face, the judge's determination on remand of substantial equivalence between the federal and state robbery statutes, a necessary precursor to the application of the Three Strikes law to defendant, was improperly founded upon his resolution of disputed issues of fact about the defendant's prior convictions. Thus, he urges us to find the Three Strikes law to have been unconstitutionally applied.

We previously addressed the use of prior convictions as the basis for the imposition of a discretionary extended term sentence pursuant to N.J.S.A. 2C:44-3a in State v. Young, 379 N.J. Super. 498, 509-11 (App. Div. 2005), and found that practice to be consonant with Shepard, Blakely and Almendarez-Torres, as well as Natale, Abdullah and Franklin. In reaching that conclusion, we noted that defendant Young, like defendant Parks in the present case, did not claim entitlement to an indictment charging the triggering conviction (an issue in Almendarez-Torres), and we stated in rejecting his sentencing argument that "in any event, we deal with a recidivism statute, not fact-finding relating to the underlying crime." Young, supra, 379 N.J. Super. at 510-11 n.4.

We decline to depart from Young in this case and to find the Three Strikes statute facially unconstitutional as a consequence of judicial factfinding. In reaching this conclusion, we are mindful of our role as an intermediate appellate court and of our obligation to follow existing Supreme Court precedent. RSB Laboratory Services, Inc. v. BSI Corp., 368 N.J. Super. 540, 560 (App. Div. 2004); Mount Olive Complex v. Twp. of Mt. Olive, 356 N.J. 500, 512 (App. Div. 2003). We do not read the trilogy commencing with Natale, as defendant suggests, to invite our repudiation of precedent recognizing the prior conviction exception to the requirement of jury consideration of sentencing enhancements. Indeed, in Natale, the Supreme Court specifically recognized the prior conviction exception, stating in the course of its Sixth Amendment discussion:

The judge also is authorized to sentence the defendant within a range consistent with the defendant's stipulation to judicial factfinding or with the defendant's prior convictions. Blakely, supra, 542 U.S. at [301], 124 S. Ct. at 2536, 2541, 159 L. Ed. 2d 403; see also Apprendi, supra, 530 U.S. at 490, 120 S. Ct. at 2362-63, 147 L. Ed. 2d at 455; Almendarez-Torres v. United States, 523 U.S. 224, 243, 118 S. Ct. 1219, 1230, 140 L. Ed. 2d 350, 368 (1998) ("[R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence."). Aside from the exceptions for prior criminal convictions and consent to judicial factfinding, the Sixth Amendment prohibits a judge from imposing a sentence greater than that allowed by the jury verdict or by the defendant's admissions at a plea hearing. Those are the constitutional boundaries for the exercise of a judge's discretion at sentencing.

[Natale, supra, 184 N.J. 481-82.]

In reaching this conclusion, we have also considered footnote two to the Court's opinion in Abdullah, rendered in connection with a determination that the sentencing judge may have engaged in impermissible factfinding in considering the heinousness of the crime when citing aggravating factors (3) (the risk that defendant would commit another offense) and (9) (the need for deterrence) as two of the grounds, along with aggravating factor (6) (prior criminal record) for sentence enhancement above the then-presumptive term for second-degree burglary. N.J.S.A. 2C:44-1a(3), (6) and (9). That footnote states:

We note that had the trial court specifically found that aggravating factors (3), (6), and (9) related to defendant's prior convictions as the basis for increasing defendant's sentence above the presumptive, we might have come to a different result. "[T]he fact of a prior conviction" may be used to increase the "penalty for a crime beyond the prescribed statutory maximum." Apprendi, supra, 530 U.S. at 490, 120 S. Ct. at 2362-63, 147 L. Ed. 2d at 455; see also Almendarez-Torres v. United States, 523 U.S. 224, 243, 118 S. Ct. 1219, 1230, 140 L. Ed. 2d 350, 368 (1998) ("[R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence."). Aggravating factors (3), (6), and (9), arguably, are inextricably linked to the recidivism exception. . . .

[Abdullah, supra, 184 N.J. at 506 n.2.]

While the Court's statement can be read to express some reservations as to the extent of the connection between the cited aggravating factors and recidivism or as to the permissibility of judicial factfinding with respect to factors (3) and (9) based on elements other than a prior record, the statement in no fashion precludes the use of prior convictions themselves as a foundation for sentence enhancement, and indeed, that use is specifically sanctioned. Id. at 504, 509-10.

We likewise fail to find support for defendant's position in Franklin. In that decision, the Court held that the second-offender provision of New Jersey's Graves Act, elevating an enumerated second-degree into a first-degree offense if committed with a firearm by one previously convicted of an offense involving the use or possession of a firearm, was unconstitutional because it permitted a judge to determine by a preponderance of the evidence that a firearm had been used, and thus to elevate the degree of the crime and impose greater punishment than otherwise permitted. 184 N.J. at 533. The second-offender provision, the Court found, removed from the jury's consideration a critical fact, whether defendant was armed, that was the functional equivalent of an element of a first-degree offense. Id. at 534. In contrast, the Court found the existence of a prior record to constitute a sentencing factor. Id. at 531-32.

We thus find no evidence of any disavowal by the New Jersey Supreme Court of federal precedent, including Almendarez-Torres, or any present indication that it would depart from that precedent to reach the conclusion that defendant seeks. We therefore decline to find the Three Strikes law to be unconstitutional on its face.

II.

Defendant claims additionally that the Three Strikes law is unconstitutional as applied in this case, because in determining substantial equivalence between defendant's state and federal crimes, the judge allegedly inquired into facts about his federal conviction and did not limit his consideration to the conviction's existence. The Three Strikes statute provides:

A person convicted of a crime under any of the following: N.J.S. 2C:11-3; subsection a. of N.J.S. 2C:11-4; a crime of the first degree under N.J.S. 2C:13-1, paragraphs (3) through (6) of subsection a. of N.J.S. 2C:14-2; N.J.S. 2C:15-1; or section 1 of P.L. 1993, c. 221 (C. 2C:15-2), who has been convicted of two or more crimes that were committed on prior and separate occasions, regardless of the dates of the convictions, under any of the foregoing sections or under any similar statute of the United States, this State, or any other state for a crime that is substantially equivalent to a crime under any of the foregoing sections, shall be sentenced to a term of life imprisonment by the court, with no eligibility for parole.

Because the predicate offenses that the State claimed as a foundation for the application of the Three Strikes law to defendant were not limited to crimes committed pursuant to the enumerated New Jersey statutes, the judge in this case was required to make a legal determination of equivalence between first-degree robbery pursuant to N.J.S.A. 2C:15-1 and bank robbery pursuant to 18 U.S.C.A. 2113(a) and (d), the crime to which defendant had pled guilty in federal court. In this connection, the judge reviewed the criminal charging document or "information," issued in lieu of indictment, setting forth defendant's alleged crimes, and an amended judgment of conviction that specified the crime as including 18 U.S.C.A. 2113(d). Additionally, the judge reviewed a document (the accuracy of which is uncontested) that stated that: "Parks' plea agreement included a stipulation that Parks used a dangerous weapon in the course of the robbery," and a sentencing adjustment was made as a result.

In Shepard, supra, the United States Supreme Court considered the information to which a sentencing judge could refer in determining whether a defendant's four prior convictions for burglary under Massachusetts' "nongeneric" burglary statute constituted "generic burglaries" for purposes of sentence enhancement pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C.A. 924(e). It concluded that:

[E]nquiry under the ACCA to determine whether a plea of guilty to burglary defined by a nongeneric statute necessarily admitted elements of the generic offense is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.

[544 U.S. at 26, 125 S. Ct. at 1263, 161 L. Ed. 2d at 218.]

We find no evidence that the sentencing judge in the present case utilized documents other than those authorized by Shepard or impermissibly considered facts underlying defendant's federal conviction to which he did not stipulate in connection with his plea. We thus reject the position that the Three Strikes law is unconstitutional as applied.

III.

As a final matter, defendant challenges the court's legal conclusion that the federal crime of armed bank robbery is substantially equivalent to the New Jersey crime of first-degree robbery pursuant to N.J.S.A. 2C:15-1b. Defendant argues that the use of the term "dangerous" weapon in the federal statute and the use of the term "deadly" weapon in the State statute serve to distinguish the statutes and fatally undermine any finding of substantial equivalence, particularly since the nature of the weapon possessed by defendant has not been specified.

We disagree. New Jersey law permits conviction for first-degree robbery upon evidence of a subjective belief by the victim that, because of the manner in which used or fashioned, the device utilized in committing the robbery was capable of producing death or serious bodily injury. N.J.S.A. 2C:11-1c. It does not require the existence of a weapon that is in fact deadly. See, e.g., State v. Hutson, 107 N.J. 222, 227-30 (1987) (suggesting that a newspaper, if properly fashioned to create the requisite belief, could constitute a deadly weapon); see also State v. LaFrance, 224 N.J. Super. 364, 371-73 (App. Div. 1988), aff'd in part, rev'd in part on other grounds, 117 N.J. 583, 595 (1990) (fist).

Federal law requires in order for an enhanced penalty to be imposed for bank robbery pursuant to 18 U.S.C.A. 2113(d) that the victim be assaulted or that the victim's life be put in jeopardy by use of a dangerous weapon. Such conduct must exceed that required by 18 U.S.C.A. 2113(a), which requires only "force and violence" or "intimidation." United States v. Thomas, 521 F.2d 76, 81 (8th Cir. 1975). The First Circuit has held in a case in which an enhanced sentence was imposed upon a robber who portrayed a knife in his pocket as a gun:

A bank robber is vulnerable to a sentence enhancement under subsection 2113(d) if he uses "a dangerous weapon or device" in attempting or committing the crime. In other words, the instrumentality used need not be a "firearm." The dangerousness of an instrumentality used in a bank robbery is not necessarily determined simply by its inherent capacity to inflict harm, but by the dangerousness of the response it may reasonably be expected to provoke on the part of persons who perceive that the instrumentality is dangerous.

The Supreme Court held in McLaughlin that an unloaded handgun was a "dangerous weapon" within the meaning of the federal bank robbery statute. Among the grounds the Court considered "independently sufficient" to support its holding was its assessment that "the display of a gun instills fear in the average citizen [and thus] creates an immediate danger that a violent response will ensue.

* * *

Subsection 2113(d) is not concerned with the manner in which the dangerous weapon or device is displayed, but with whether its use jeopardizes human life.

[United States v. Benson, 918 F.2d 1, 3 (1st Cir. 1990)(footnote and citations omitted).]

Significantly, in contrast to other jurisdictions that require only a subjective belief that life has been placed in danger the Third Circuit, within which defendant's federal case was concluded, requires that in order for the statutory criteria for enhanced sentencing to be met, there must be objective proof that the victim's life has been placed in danger. United States v. Cobbs, 481 F.2d 196, 201 (3d Cir.), cert. denied, 414 U.S. 980, 94 S. Ct. 298, 38 L. Ed. 2d 224 (1973); United States v. Conway, 415 F.2d 158, 166 n.16 (3d Cir. 1969), cert. denied, 397 U.S. 994, 90 S. Ct. 1131, 25 L. Ed. 2d 401 (1970); United States v. Roach, 321 F.2d 1, 5 (3d Cir. 1963). See gen. Russell J. Davis, Annotation, What Constitutes "Puts in Jeopardy" within Enhanced Penalty Provision of Federal Bank Robbery Act (18 USCS 2113(d), 32 ALR Fed 279 (1977 and supp. 2005).

This precedent, we find, provides ample support for the conclusion that the term "deadly weapon" is the substantial equivalent of "dangerous weapon" for purposes of the imposition of the Three Strikes law. We do not require absolute identity to exist, nor insist on a literal reading of the statutes that robs them of their substantial import in their respective sentencing schemes. We thus reject defendant's argument.

Affirmed.

 

(continued)

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A-0336-04T2

May 18, 2006