A second Graves Act offender may be sentenced to a
mandatory extended term of imprisonment while the first
Graves Act conviction is pending on appeal or the time to
appeal that conviction has not yet expired. State v. Haliski,
140 N.J. 1 (1995).
For purposes of the mandatory extended terms of the
Graves Act, the chronology of the events and offenses were
irrelevant so long as judgments were entered prior to the
sentencing of the matter before the court. State v. Hawks,
114 N.J. 359 (1989) See, e.g., State v. Bey, 96 N.J. 625, 629
(1984); State v. Biegenwald, 96 N.J. 630, 635-636 (1984);
State v. Windsor, 205 N.J. Super. 450 (Law Div. 1985).
In imposing a mandatory extended term for a second
Graves Act offense, the trial court should weigh the
aggravating and mitigating factors to determine the “base
term” and to fix the period of parole ineligibility as outlined
in State v. Dunbar, 108 N.J. 80 (1987). State v. Jefimowicz,
119 N.J. 152 (1990).
Proof of the conviction may be established by a
certified copy of a conviction, transcripts of testimony
indicating that a firearm was possessed or used, or other
information, in addition to the presentence report. State v.
Martin, 110 N.J. 10, 18 (1988).
As originally drafted the mandatory extended term
provisions for a second Graves Act offense, N.J.S.A. 2C:44-
3d, could not be based on foreign convictions. State v.
Copeman, 197 N.J. Super. 261, 264-265 (App. Div. 1984).
N.J.S.A. 2C:44-3d was amended, effective June 20, 1997,
to provide that a conviction in another jurisdiction would
constitute a prior conviction for a Graves Act extended
term.
D. NERA - No Early Release Act - N.J.S.A. 2C:43-7.2
(eff. 6/9/97)
NERA requires that a parole ineligibility term of 85%
of the base term be imposed when defendant commits a
violent crime of the first or second degree. N.J.S.A. 2C:43-
7.2a. In addition a period of parole supervision, 5 years for
first degree crimes and 3 years for second degree crimes,
must be imposed. N.J.S.A. 2C:43-7.2c.
Imposition of an extended term for first or second
degree violent crime must include NERA sentence at least
equal to the maximum ordinary term for the degree of the
crime involved. State v. Allen, 337 N.J. Super. 259, 766
(App. Div. 2001).
- Constitutionality
The No Early Release Act is constitutional and does
not impose cruel and unusual punishment. State v. Johnson,
166 N.J. 523, 766 (2001); State v. Newman, 325 N.J.
Super. 556 (App. Div. 1999), certif. denied 163 N.J. 396
(2000).The factual predicate for a NERA sentence must be
found beyond a reasonable doubt by a jury in cases that
proceed to trial or by judge in cases involving guilty pleas
(right to jury trial waived). State v. Johnson, 166 N.J. 523,
766 (2001), S.O. at 29-30; State v. Shoats, __ N.J. Super.
__, S.O. at 15-16, 2001 WL 267054 (App. Div. 2001).Where none of the NERA factors is an element of the
offense charged, there must be additional proof beyond a
reasonable doubt of the NERA factor before there can be
sentence enhancement under NERA. State v. Thomas, __
N.J. __, S.O. at 2, 2001 WL 194653 (2001); State v.
Johnson, 166 N.J. 523, 766 (2001), S.O. at 28 n. 1,
(Appellate Division decision in State v. Mosley, 335 N.J.
Super. 144, 151-157 (App. Div. 2000), certif. denied __
N.J. __ (2001), interpreted NERA too narrowly, limiting
consideration of factual predicate to elements of offense);
State v. Shoats, __ N.J. Super. at __, S.O. at 9, 15, 2001 WL
267054.Supreme Court declined to address whether
indictment requirement of state constitution attaches to
NERA. State v. Johnson, 166 N.J. at 523, 766 (2001) n. 2,
S.O. at 29 n. 2. The Court did find in Johnson, that
indictment in that case gave defendant sufficient notice of
the NERA violent crime predicate. Id. The Supreme
Court asked the Criminal Practice Committee to make
recommendations for appropriate NERA procedures and
whether R. 3:21-4(f) should be amended to require notice
by the prosecutor of intent to impose a NERA sentence
earlier than 14 days after jury verdict or guilty plea. (In case
involving plea agreements prosecutor must file and serve
notice prior to plea). State v. Johnson, 166 N.J. 523,766
(2001) (S.O. at 30).Supreme Court decision in Johnson is based on theory
of statutory construction and not on principles of
constitutional law, and will not be retroactively applied.
State v. Johnson, 166 N.J.523, 766 (2001) (S.O. at 33-35).
Accordingly, the Johnson decision will apply only to all
cases on direct appeal on the date of the opinion (February
28, 2001) where the appellant is challenging the failure of
the NERA offense to be proven to a jury beyond a
reasonable doubt, and to trial cases, in which NERA is
implicated, that commence after the filing date of the