State v. Howard Parks

SYLLABUS
 
 
(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).
 
State v. Howard Parks (A- 39-06 )
 
 
Argued May 1, 2007 -- Reargued September 10 , 2007 -- Decided October 25, 2007

PER CURIAM
The issue in this appeal is whether the Persistent Offender Accountability Act, N.J.S.A. 2C:43-7.1 (the Three Strikes Law ), as amended in 2003, applies to this defendant, who had two prior convictions, but who did not commit the predicate offenses prior to the subject offense.
On December 13, 1999, defendant Howard Parks committed first-degree armed robbery at a Union County hotel. He was convicted on October 5, 2001. At that time, he had two prior convictions of separate and unrelated offenses. On January 17, 2001, he was convicted in Essex County of kidnapping and first-degree robbery. He committed those crimes on December 1, 1999. On December 1, 2000, he was convicted of federal bank robbery, which occurred on December 28, 1999.

In January 2002, at sentencing on the Union County conviction, the State sought an enhancement under the Three Strikes Law on the basis that defendant had three strikes. At the time, the Three Strikes Law required that a court impose a term of life imprisonment, without the possibility of parole, on a defendant convicted of certain types of first-degree crimes (including robbery), where the defendant had previously been convicted, on two separate occasions, of those crimes in this state, another state, or under federal law. The trial court applied the Three Strikes Law and sentenced defendant to life in prison without parole. Defendant appealed.

While that appeal was pending, the Legislature amended the Three Strikes Law in April 2003. The Three Strikes Law now requires a term of life without parole when the defendant has been convicted of two or more crimes that were committed on prior and separate occasions, regardless of the dates of the convictions.

On November 24, 2003, the Appellate Division affirmed defendant s conviction, but reversed and remanded the sentence to the trial court to determine whether the prior federal bank robbery was a strike within the meaning of the Three Strikes Law. On resentencing in April 2004, the trial court decided that defendant s prior federal conviction was a strike and imposed a life sentence without parole. The trial court did not indicate whether it was applying the original or the amended version of the Three Strikes Law.

The Appellate Division affirmed the sentence on May 18, 2006. The Supreme Court granted certification. 188 N.J. 355 (2006). At oral argument on May 1, 2007, the issue of the applicability of the amended Three Strikes Law arose, leading to supplemental briefing and further oral argument.
HELD: The amended Three Strikes Law applies to defendant s sentencing. Because defendant committed only one predicate offense prior to the subject offense, he did not qualify for enhanced sentencing under the Three Strikes Law.
1. The 2003 amendment to the Three Strikes Law was enacted in direct response to the decision in State v. Livingston, 172 N.J. 209 (2002), in which the Court held that enhanced sentencing required two prior convictions that were entered on separate occasions. The amendment clarifies that the dates of the two prior convictions are irrelevant; the sentence must be enhanced when the two prior crimes were committed on separate occasions. There is no dispute that if the amended statute applies, defendant was not subject to enhanced sentencing because the sequence of his crimes does not satisfy the statute. Defendant committed the Essex County robbery and kidnapping on December 1, 1999; the Union County robbery (the subject offense) on December 13, 1999; and the federal bank robbery on December 28, 1999. (pp. 5-8).
2. The original version of the Three Strikes Law was in effect when defendant was first sentenced in January 2002. However, when he was sentenced anew in 2004, the prior sentencing was nullified. At that time, the amended Three Strikes Law had been in effect for a year. The amended statute applies to defendant s sentencing. Because defendant s prior crimes do not satisfy the amendment s requirements, he was not subject to Three Strikes enhancement.
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for re-sentencing in accordance with the Court s opinion.
JUSTICES LONG, LaVECCHIA , ALBIN , WALLACE , RIVERA-SOTO and HOENS join in this opinion. CHIEF JUSTICE RABNER did not participate.

SUPREME COURT OF NEW JERSEY
A- 39 September Term 2006
 
 
STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.
 
HOWARD PARKS,

Defendant-Appellant.

Argued May 1, 2007 -- Re-argued September 10, 2007 Decided October 25, 2007

On certification to the Superior Court, Appellate Division.

Eric Tunis argued the cause for appellant (Edwards Angell Palmer & Dodge, attorneys; Mr. Tunis and Mark D. Debrowski, on the briefs).

Carol M. Henderson, Assistant Attorney General, argued the cause for respondent (Anne Milgram, Attorney General of New Jersey, attorney).
Jeffrey S. Mandel argued the cause for amicus curiae, Association of Criminal Defense Lawyers of New Jersey (Day Pitney, attorneys).

PER CURIAM
This appeal involves the applicability of the Persistent Offender Accountability Act, N.J.S.A. 2C:43-7.1 (the Three Strikes Law ). It centers on a defendant who was resentenced after an amendment to the Three Strikes Law that declared that its applicability depends on the commission of two or more crimes prior to the crime for which the enhanced sentence is sought and not on the sequence of the prior convictions. Although the defendant in this case had two prior convictions, he did not commit the two predicate crimes prior to the offense at issue here. Thus, the statute is inapplicable to him. We therefore reverse the Appellate Division decision to the contrary and remand the case to the trial judge for a new sentencing under the amended Three Strikes Law.
I
On December 13, 1999, defendant Howard Parks entered a Hilton Hotel in Union County armed with a weapon and took money from the cash drawers. As a result, on October 5, 2001, he was convicted of first-degree armed robbery, contrary to N.J.S.A. 2C:15-1. As of that date, defendant had been convicted on two prior occasions for separate and unrelated offenses, an Essex County kidnapping and robbery and a federal bank robbery. The Essex County crimes took place on December 1, 1999, with convictions on January 17, 2001. The federal crime occurred on December 28, 1999, with a conviction on December 1, 2000. Accordingly, at sentencing on January 18, 2002, the State moved for the imposition of an enhanced sentence under the Three Strikes Law on the basis that defendant had three predicate convictions, or strikes. At that time the Three Strikes Law read as follows:
a. Life Imprisonment Without Parole. 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 on two or more prior and separate occasions been convicted of a crime 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.

[N.J.S.A. 2C:43-7.1 (1995) (emphasis added), amended by N.J.S.A. 2C:43-7.1 (2003).]

The judge applied the Three Strikes Law, and imposed the statutorily mandated term of life in prison without the possibility of parole.
Defendant appealed. On April 23, 2003, while defendant s appeal was pending, the Legislature amended the Three Strikes Law. L. 2003, c. 48, 1. It now reads:
a. Life Imprisonment Without Parole. 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.

[N.J.S.A. 2C:43-7.1 (emphasis added).]

On November 24, 2003, the Appellate Division affirmed defendant s conviction, but reversed and remanded his sentence because the trial judge had failed to make the required determination that defendant s prior federal bank robbery conviction constituted a strike within the meaning of the Three Strikes Law. On resentencing, in a written opinion dated April 29, 2004, the trial judge decided that defendant s federal conviction was a strike for purposes of the statute, and imposed the mandatory sentence of life without parole. Notably, the judge did not indicate whether he applied the original or the amended version of the Three Strikes Law. On May 18, 2006, the Appellate Division affirmed. We granted certification. See footnote 1 State v. Parks, 188 N.J. 355 (2006).

II
The Three Strikes Law was enacted as part of a nationwide trend aimed at protecting the public by incarcerating certain third-time offenders for life. State v. Livingston, 172 N.J. 209, 218 (2002) (citing State v. Oliver, 162 N.J. 580, 583-84 (2000)). In its original form, the law counted as strikes two or more convictions entered on prior and separate occasions.
In 2002, this Court decided State v. Livingston, 172 N.J. 209 (2002). There, we were confronted with the question of whether the Three Strikes Law applied to a third-time offender who previously entered two separate guilty pleas for two separate crimes at one plea proceeding and was sentenced for those separate crimes in one sentencing proceeding. Id. at 212. In other words, did defendant s two prior contemporaneous convictions occur on separate occasions, as the 1995 Three Strikes Law required. Ibid. We held that defendant s simultaneous convictions were not entered on separate occasions, and therefore that he was not subject to enhanced sentencing under the Three Strikes Law. Id. at 222.
In a concurrence, Justice Stein opined that the Court s construction of the Three Strikes Law was not consistent with the Legislature s intent, and invited the Legislature to amend the statute if it preferred a different result. Id. at 225-27 (Stein, J., concurring).
On April 23, 2003, in direct response to our decision in Livingston, the Legislature amended the Three Strikes Law to provide that it would apply where a defendant was convicted of two or more offenses that were committed on prior and separate occasions, regardless of the date of the convictions. L. 2003, c. 48, 1.
The amendment was introduced in June 2002, with this statement from its sponsor:
Under the Three Strikes law, N.J.S.A. 2C:43-7.1, defendants convicted of certain first degree crimes who have previously been convicted, on two separate occasions, of those crimes must be sentenced to life imprisonment without eligibility for parole. . . . The crimes are murder, aggravated manslaughter, kidnapping in the first degree, certain aggravated sexual assaults, robbery in the first degree, and carjacking.

In State v. Livingston, . . . the New Jersey Supreme Court ruled that a defendant being sentenced in 1999 for carjacking and other crimes who had two previous convictions for robbery would not be eligible for sentencing under the Three Strikes law due to the rather unusual timing of those prior convictions. The defendant had committed one robbery in 1983 and one in 1985, but pleaded guilty to both robberies on the same day in 1985. Because both convictions occurred on the same day, the court held that the statute was not applicable, since the statute literally applies only to those defendants who were convicted on two or more prior and separate occasions.

The sponsor believes that this interpretation of the statute was never intended by the Legislature. In response to the court s decision, this bill amends the Three Strikes law to clarify that it applies to defendants convicted of three crimes which were committed on separate occasions; the dates of the defendant s convictions are irrelevant.

[Statement by Sen. Diane Allen to Senate Bill No. 1733 (June 30, 2002).]

In its approval of the amendment, the Assembly Judiciary Committee echoed the sponsor s statement: In response to [State v. Livingston], this bill amends the Three Strikes law to clarify that the Legislature intended that the law applies to a defendant convicted of an enumerated crime who has been convicted of two or more of those crimes that were committed on prior and separate occasions, regardless of the dates of the convictions. Assembly Judiciary Committee Statement to Senate Bill No. 1733 (Jan. 16, 2003).
There is no dispute between the parties over the meaning of the amended act. They agree that it was intended to palliate the effects of Livingston and clarify the Legislature s intention to require the commission of two or more crimes on prior and separate occasions regardless of the sequence of convictions. They also agree that if the amended act applies, defendant was not subject to enhanced sentencing. We concur and conclude that the sequence of defendant s crimes does not satisfy the amended statute. Defendant committed the Essex County kidnapping and robbery on December 1, 1999, the Union County robbery (subject offense) on December 13, 1999, and the federal bank robbery on December 28, 1999. Because only one offense was committed by defendant prior to that for which Three Strikes sentencing was sought, he did not qualify for enhancement under the amended statute.
III
The remaining question is whether there is any reason to apply the original version of the Three Strikes Law. None has been demonstrated. To be sure, when defendant was sentenced in January of 2002, the first Three Strikes Law was in effect. However, when he was sentenced anew on April 29, 2004, the prior sentencing was nullified. At that time, the amended law was in effect. Thus, the parties briefs and arguments on questions of retroactivity and the concomitant effect of the Savings Clause (N.J.S.A. 1:1-15) were wide of the mark. Plainly, this case does not involve a retroactivity analysis because no penalty was incurred prior to the amendment. Indeed, when defendant s resentencing took place, the new law had been in effect for a year. That said, and because defendant does not satisfy the strictures of the amendment, he was not subject to the Three Strikes enhancement.

IV
The judgment of the Appellate Division is reversed. The matter is remanded to the trial judge to be sentenced anew in accordance with the principles to which we have adverted.
JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO, and HOENS join in this opinion. CHIEF JUSTICE RABNER did not participate.

SUPREME COURT OF NEW JERSEY
 
NO. A-39 SEPTEMBER TERM 2006

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HOWARD PARKS,

Defendant-Appellant.

DECIDED October 25, 2007
Justice Long PRESIDING
OPINION BY Per Curiam
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY

CHECKLIST REVERSE AND REMAND
CHIEF JUSTICE RABNER -----------------------
-------------------- JUSTICE LONG X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE WALLACE X
JUSTICE RIVERA-SOTO X
JUSTICE HOENS X
TOTALS 6

 
Footnote: 1 The question originally presented to us was whether the substantially equivalent analysis engaged in by the trial judge to determine that defendant s federal conviction was a strike violated his federal and state constitutional rights to a trial by jury. At oral argument, the issue of the applicability of the amended Three Strikes Law arose and supplemental briefing and argument took place. Because we have concluded that defendant is not subject to an enhanced sentence under the amended version of the law, the initial question presented is moot and need not be addressed.