STATE OF NEW JERSEY v. REGINALD PRATHER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1979-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

REGINALD PRATHER,

Defendant-Appellant.

_______________________________

October 20, 2011

Submitted September 21, 2011 - Decided

Before Judges Lihotz and St. John.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 00-80-1582.

Reginald Prather, appellant pro se.

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Erin M. Campbell, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Reginald Prather appeals from the denial of his post-conviction relief (PCR) petition, maintaining the PCR court failed to correct an illegal sentence imposed following his 1983 convictions for murder, kidnapping and drug offenses. Defendant argues a court may not impose a discretionary extended term sentence unless that assertion is pled in the indictment. We reject this contention as meritless and affirm the order denying defendant's PCR petition.

Following conviction, defendant was sentenced on July 8, 1983. On the charge of murder, the trial court imposed a life sentence, requiring twenty-five years to be served prior to consideration of parole eligibility. After granting the State's application for an extended term, the court imposed a consecutive thirty-year sentence for the kidnapping, half of which was to be served before parole eligibility. Additional concurrent sentences were imposed for the drug distribution offenses. All sentences were ordered to be served consecutively to a previously imposed 1982 New York sentence for criminal possession of contraband (narcotics) and a sentence imposed on a different Hudson County conviction.

On appeal, we affirmed defendant's convictions but corrected one aspect of the sentence imposed on the multiple drug convictions. State v. Prather, Nos. A-8195-82 and A-2611-83 (App. Div. May 22, 1987). Certification was subsequently denied. State v. Prather, 109 N.J. 496 (1987). Thereafter, on October 4, 2010, defendant requested PCR, alleging the sentence imposed was illegal. Defendant's petition and motion for reconsideration were denied, prompting this appeal.

In his initial and two supplemental submissions, defendant maintains the extended term sentence for the 1983 kidnapping conviction1 was illegal. Defendant asserts due process requires the State to set forth in its indictment any intention to seek enhanced penalties as provided by the persistent offender statute, N.J.S.A. 2C:44-3, much the same way as certain crimes which, depending upon the facts, may be charged at a higher degree. This contention is unfounded and rejected.

In certain instances, the Code provides different punishments for an offense if certain additional factors are present. For example, robbery under N.J.S.A. 2C:15-1(a) is a second-degree offense. N.J.S.A. 2C:15-1(b). However, if the theft was committed while attempting to kill another person or by inflicting serious bodily injury upon a victim, the offense may be charged as a first-degree offense, subject to more severe penalties upon conviction. Ibid. Consequently, if the State seeks a first-degree conviction, "facts which will aggravate the crime . . . and enhance the punishment to which [a defendant] will be subject are said to be an 'element' of the offense . . . and must therefore be charged in the indictment[.]" State v. Rodriguez, 234 N.J. Super. 298, 304-05 (App. Div. 1989), certif. denied, 117 N.J. 656 (1989). See also State v. Catlow, 206 N.J. Super. 186, 195-96 (App. Div. 1985) (stating a defendant tried on a robbery indictment which does not allege that he attempted to kill someone, or that he purposely inflicted or attempted to inflict serious bodily injury, or that he was armed with, or used or threatened the immediate use of a deadly weapon, can be convicted only of second-degree robbery), certif. denied, 103 N.J. 465-66 (1986).

The persistent offender statute differs in that its does not provide a separate substantive offense, rather it defines allowable penalties if specified circumstances related to a defendant's repeated criminal conduct are present. The applicable statutory provision states:

The defendant has been convicted of a crime of the first, second or third degree and is a persistent offender. A persistent offender is a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced.

[N.J.S.A. 2C:44-3(a).]

Accordingly, a court may impose an enhanced penalty for a new criminal conviction of a defendant's past criminal history if the appropriate predicate offenses are present.

Past constitutional challenges to similar statutes have been rejected. In Oyler v. Boles, the United States Supreme Court considered a challenge to a statute that imposed enhanced penalties for habitual offenders. 368 U.S. 448, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962). The High Court stated, "the constitutionality of the practice of inflicting severe criminal penalties upon habitual offenders is no longer open to serious challenge[.]" Id. at 451, 82 S. Ct. at 503, 7 L. Ed. 2d at 450.

Our Supreme Court examined the same issue arising under legislation predating the persistent offender statute N.J.S.A. 2C:44-3. It also determined "habitual offender" laws do "not create a new substantive crime, but rather imposes a greater penalty for the particular crime for which the defendant is convicted, where such defendant has persistently engaged in unlawful activities." State v. Washington, 47 N.J. 244, 248 (1966).

We note the imposition of an extended term sentence pursuant to N.J.S.A. 2C:44-3, rests within the discretion of the court, is premised on maximum sentencing exposure for the current offense and the sentence term is guided by specific criteria. See State v. Dunbar, 108 N.J. 80, 87 (1987), modified on other grounds, State v. Pierce, 188 N.J. 155, 168-69 (2006). The imposition of an extended term because of defendant's repeated criminal conduct neither charges a new crime nor punishes him anew for past convictions. See State v. Reldan, 231 N.J. Super. 232, 237-38 (App. Div. 1989) (holding prior convictions may be used more than once when assessing whether a current conviction may be enhanced under N.J.S.A. 2C:44-3). The law unmistakably provides a clear punitive consequence for subsequent recidivist acts.

Here, the State properly satisfied all procedural requisites by giving defendant notice prior to sentencing of its request for imposition of an extended term and by identifying the kidnapping conviction as the offense to which the enhanced sentence would attach. See State v. Thomas, 195 N.J. 431, 436 (2008). Further, the sentencing record reflects the judge stated his factual findings that supported his conclusion defendant was a persistent offender. The trial judge noted defendant was then thirty-two years old, had been subject to prior convictions as an adult for larceny, burglary, receiving stolen property, weapons offenses, along with the most recent narcotics convictions in New York and New Jersey. These findings, permissibly made by the trial court,2 satisfied the statutory requirements of N.J.S.A. 2C:44-3(a), subjecting defendant to the enhanced penalty as a persistent offender.

We also conclude the court's factfinding did not run afoul of the rigors announced in Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S. Ct. 2348, 2355, 147 L. Ed. 2d 435, 446 (2000). The trial judge confined his analysis to those facts -- defendant's age and prior convictions -- that were not required to be submitted to a jury and proved beyond a reasonable doubt. Pierce, supra, 188 N.J. at 163.

1 Generally, PCR requests must be filed within the five-year time limitation imposed by Rule 3:22-12(a)(1). Notwithstanding the age of defendant's conviction, this matter is reviewable because "[a] petition to correct an illegal sentence may be filed at any time." State v. Tavares, 286 N.J. Super. 610, 617 (App. Div. 1996), certif. denied, 144 N.J. 376 (1996). See also R. 3:21-10(b)(5).

2 See Pierce, supra, 188 N.J. at 168-69 (stating courts may make findings under N.J.S.A. 2C:44-3(a) as they involve review of facts established from review of defendant's criminal record).