In Wisconsin v. Mitchell, 508 U.S. 476 (1993), the
Supreme Court upheld a Wisconsin statute which
provided for an enhanced sentence if the criminal act (in
this case an assault) is intentionally committed because of
the race, religion, color, disability, sexual orientation,
national origin or ancestry of the victim. The Court
found that the conduct condemned by the statute was
not protected by the First Amendment and that it was
permissible for a state to enhance punishment for assaults
motivated by a discriminatory motive more severely than
other assaults.
McMillan v. Pennsylvania, 477 U.S. 79 (1986),
explained due process does not demand that the State
prove beyond a reasonable doubt that defendant had
visible possession of a firearm in order to impose a
statutorily mandated minimum sentence. Due process is
satisfied by a preponderance of the evidence that
defendant visibly possessed a firearm during commission
of a crime.
In State v. Weeks, 107 N.J. 396 (1987), defendant
was not denied his due process rights by the imposition
of a Graves Act penalty factually based upon the use of a
weapon during armed robbery as established by the jury
verdict. Due process did not require that the issue of
eligibility for the mandatory sentence be submitted
separately to the jury.
State v. Oliver, 162 N.J. 580 (2000), held due process
at sentencing typically requires that the government
prove sentence-enhancing factors by a preponderance of
the evidence. Due process requires a higher standard of
proof when the sentence-enhancing factor to be proved
would have an extremely disproportionate effect on
sentence relative to the offense of conviction. The three
strikes law, N.J.S.A. 2C:43-7.1a, provided defendant
with sufficient procedural protections under the due
process clause; given the necessary flexibility required by
the penal code, the Supreme Court was satisfied that trial
courts would exhibit under the preponderance standard
“the degree of confidence our society thinks he [or she]
should have in the correctness of [its] factual
conclusions.”
State v. Williams, 317 N.J. Super. 149 (App. Div.),
certif. denied, 157 N.J. 647 (1999), held sentence of
mandatory extended term of life imprisonment with a 25
year parole disqualifier, imposed on defendant convicted
of armed robbery, did not violate due process, even
though his codefendant, who pleaded guilty, received
more lenient sentence, since codefendant provided
meaningful cooperation with prosecution, which was
taken into account by sentencing court, and defendant
was principal protagonist, repeatedly terrorizing elderly
victims with gun, while his codefendant acted in
sympathetic fashion to victims. According to State v.
Haliski, 140 N.J. 1 (1995), the critical inquiry in
assessing whether principles of due process and double
jeopardy bar imposition of a sentence greater than the one
initially imposed is whether defendant maintains a
legitimate expectation of finality with respect to
sentence. What was sought by defendant’s appeal, rather
than the relief, if any, obtained, defines what constitutes
a legitimate expectation of finality.State v. Orji, 277 N.J. Super. 582 (App. Div. 1994)
concluded that due process normally requires hearing on
both ability to pay restitution and time period for making
payments. See also State v. Jamiolkoski, 272 N.J. Super.
326 (App. Div. 1994); State v. Topping, 248 N.J. Super.
86 (App. Div. 1991); State v. Zoppi, 196 N.J. Super. 596
(Law Div. 1984).State v. Townsend, 222 N.J. Super. (App. Div. 1988),
held that the Fourteenth Amendment precludes state
court from automatically revoking probation and
imposing prison term for nonpayment of restitution.
Where, as here, however, defendant willfully failed to
comply with the court’s restitution order while on
probation, defendant’s due process rights were not
violated by the court’s failure to consider whether
alternatives to imprisonment were appropriate upon
revocation of defendant’s probation.In State v. Mastapeter, 290 N.J. Super. 56 (App. Div.),
certif. denied, 146 N.J. 569 (1996), the sentencing
court’s refusal to give defendant “jail time” credits for
time he participated on electronic monitoring wristlet
program as condition of his pretrial release did not violate
defendant’s rights to equal protection and due process.
See also State v. Grate, 311 N.J. Super. 544 (Law. Div.
1997), aff’d 311 N.J. Super. 456 (App. Div. 1998) (The
granting of a credit for time served is discretionary, based
on the general equities of the situation, and is not a matter
of due process).State v. Williams, 299 N.J. Super. 264 (App. Div.
1997). Because loss of liberty may occur, defendants
charged with violating terms of their probation must be
accorded their constitutional due process rights. Trial
judge did not infringe upon probationer’s due process
rights when he sentenced probationer for violating terms
of his probation based on his convictions for new offenses
which had not yet run the gamut of appeal process; if new
convictions were later reversed on appeal and those