The standard for determining whether to impose an
extended term on an eligible defendant is whether it is
necessary for the protection of the public from future
offenses by defendant through deterrence. State v.
Pennington, 154 N.J. at 354; State v. Dunbar, 108 N.J. at
90-91. Aspects of the defendant’s record, such as a juvenile
record, parole and probation records, and overall response
to prior attempts at rehabilitation, will be relevant factors
in adjusting the base extended term. State v. Dunbar, 108
N.J. at 92.
In determining parole ineligibility it would be
necessary to take into account the defendant’s entire prior
record as part of the weighing process. State v. Dunbar, 108
N.J. at 93; State v. Williams, 310 N.J. Super. 92, 98 (App.
Div.), certif. denied 156 N.J. 426 (1998).
- Proof of Prior Conviction
The rationale of State v. Haliski, 140 N.J. 1 (1995), is
also applicable to discretionary extended terms. Thus a
sentencing court may consider convictions entered after
defendant committed the present crimes even if an appeal
is pending or the right to direct appeal exists. If defendant
is successful in that appeal, the extended term can be
amended. State v. Cook, 330 N.J. Super. 395, 421-422
(App. Div.), certif. denied 165 N.J. 486 (2000). But see,
State v. Hawks, 114 N.J. 359 (1989); State v. Mangrella,
214 N.J. Super. 437, 445 (App. Div. 1986), certif. denied
107 N.J. 127 (1987).
The chronology of the events and offenses is irrelevant
in determining the applicability of the persistent offender
statute, so long as the judgments were entered prior to the
sentencing before the court. State v. Hawks, 114 N.J. 359
(1989): State v. Mangrella, 214 N.J. Super. at 445.
An extended term cannot be imposed unless the
defendant is specifically apprised at the time of the plea of
the potential number of years to which he is exposed. State
v. Cartier, 210 N.J. Super. 379, 381-383 (App. Div. 1986).
Thus, where the prosecutor reserves the right to move for
an extended term, it is incumbent upon the trial judge at
the time of the plea to make certain that defendant is made
aware of the possible sentencing consequences under
N.J.S.A. 2C:43-7. Id.
An uncounseled conviction without waiver of the right
to counsel is invalid for the purpose of increasing a
defendant’s loss of liberty. State v. Laurick, 120 N.J. 1, 16
(1990), cert. denied 498 U.S. 967 (1970).
In the context of repeat DWI offenses, Laurick means
that the enhanced administrative penalties and fines may
constitutionally be imposed but in that in the case of repeat
DWI convictions based on uncounseled prior convictions,
the actual period of incarceration may not exceed that for
any counseled DWI convictions. State v. Laurick, 120 N.J.
at 16.It is constitutionally permissible that an prior
uncounseled DWI conviction may establish repeat-
offender status for purposes of enhanced penalty provisions
of the DWI laws, but defendant may not suffer increased
period of incarceration as a result of uncounseled DWI
conviction. Id.Defendant’s prior conviction for driving while
intoxicated could not be used to enhance his punishment
upon third conviction if he was not represented by counsel
at first conviction and he did not waive his right to counsel.
State v. Latona, 307 N.J. Super. 387 (App. Div.), certif.
denied 154 N.J. 607 (1998). Defendant bears the burden of
proving the absence of counsel or lack of waiver. State v.
Laurick, 120 N.J. at 11 (1990).Under federal constitutional principles, an uncounseled
misdemeanor conviction valid under Scott v. Illinois, 440
U.S. 367 (1979), because no prison term was imposed, is
also valid when used to enhance punishment at a
subsequent conviction, even though that sentence entails
imprisonment. Nichols v. U.S., 511 U.S. 738, 746-748,
114 S.Ct. 1921, 1927-1928 (1994). But see, State v.
Latona, 307 N.J. Super. 387 (App. Div.), certif. denied 154
N.J. 607 (1998). (Appellate Court followed Laurick and
not Nichols).Use of prior convictions to support imposition of
extended term does not violate ex post facto clause because
enhanced punishment is for a new offense, not the earlier
one. In Re Caruso, 10 N.J. 184, 189-190 (1952); State v.
Williams, 309 N.J. Super. 117, 125 (App. Div.), certif.
denied 156 N.J. 383 (1998). See Gryger v. Burke, 334 U.S.
728, 732, 68 S.Ct. 1256, 1258 (1948).Conviction in another jurisdiction can support
imposition of discretionary extended term as persistent
offender. State v. Garcia, 204 N.J. Super. 202 (App. Div.
1985), certif. denied 103 N.J. 449 (1986); State v. Williams,
309 N.J. Super. 117, 123-124 (App. Div.), certif. denied
156 N.J. 383 (1998).Absent a showing of fundamental injustice surround-
ing the prior conviction from another country, its use is
presumed to be appropriate where the conviction occurs in