New Jersey’s persistent offender statute grants a sentencing court judge the discretion to impose an extended term when the statutory pre-requisites for an extended term sentence are present. State v. Pierce, 188 N.J. 155, 161 (2006). An extended term under the persistent offender statute is only available upon application of the prosecutor. State v. Thomas, 195 N.J. 431, 436 (2008).
N.J.S.A. 2C:44-3 states, in relevant part, that:
The court may, upon application of the prosecuting attorney, sentence a person who has been convicted of a crime of the first, second or third degree to an extended term of imprisonment if it finds one or more of the grounds specified in subsection a., b., c., or f. of this section.
[N.J.S.A. 2C:44-3(a).]
The pre-requisite finding is that the defendant by a “persistent offender.” A persistent offender is defined as:
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).]
Whether the defendant is a persistent offender is a factual determination that is made by the sentencing judge. State v. Pierce, 188 N.J. 155, 168 (2006) (holding that a sentencing court can determine the statutory eligibility requirements). In making this determination, the court must examine the defendant’s prior record and his or her age at the time of any prior convictions. Id. at 162.
Even if the defendant is a persistent offender under N.J.S.A. 2C:44-3(a), that does not automatically qualify him for an extended term. On the contrary, it is only the starting point. A determination that the defendant is a “persistent offender” is merely the first of four steps in imposing an extended-term sentence. Pierce, 188 N.J. at 164 (citing Dunbar, supra, 108 N.J. at 89). In State v. Dunbar, 108 N.J. 80 (1987), the New Jersey Supreme Court established “standards for imposing an extended term of imprisonment on a persistent criminal offender.” Id. at 82. Once the court finds that a defendant’s criminal records renders him eligible for an extended term, the second step requires the judge to decide whether to impose an extended term in the first place. Dunbar, supra, 108 N.J. at 89.
Third, the sentencing court must weigh the aggravating and mitigating factors to determine the base term of the extended sentence. Dunbar, supra, 108 N.J. at 89. And court, the court must determine whether to impose a period of parole ineligibility. Id.
Because Dunbar pre-dated decisions of the United States Supreme Court that substantially revised sentencing procedures, the New Jersey Supreme Court had to restate its sentencing procedures in light of those decisions. In Pierce, the New Jersey Supreme Court modified the old standard in order to guid sentencing judges when exercising t heir discretion to impose a sentence within the the extended-term range.
The procedure is easy to follow, yet commonly misapplied. First, the sentencing court must determine whether a defendant’s criminal record makes him eligible for a discretionary extended term. Pierce, 188 N.J. at 168. If so, then the maximum sentence to which the defendant may be exposed is the top of the extended-term range. Id. at 169. Stated otherwise, the range of sentences available for imposition begins at the minimum of the ordinary-term range and ends at the maximum of the extended-term range. Id.
Take Unlawful Possession of a Weapon as an example. It is a second-degree crime. The ordinary term range is between five and ten years. N.J.S.A. 2C:43-6a(1). And the extended-term range is between ten years and twenty years. N.J.S.A. 2C:43-7. The range of sentences available for imposition would begin at five years, the minimum of the ordinary-term range and would end at twenty years, the maximum of the extended-term range. Therefore, twenty years is the top of the entire range of sentences to which a defendant convicted of Unlawful Possession of a Weapon is subject as a second-degree persistent offender.
The fact that the maximum sentence available for a persistent offender is the “top” of the extended-term range does not in any way mean that a defendant must be sentenced within the enhanced range. Pierce, supra, 188 N.J. at 169. On the contrary, all it means is that the permissible range has expanded. Id. The Court explicitly stated that there is no presumptive starting point for a sentencing court’s analysis within the broadened range. Id. at 170.
Where, within this range of sentences, the court chooses to sentence a defendant remains in the sound discretion of the sentencing judge. Pierce, supra, 188 N.J. at 169 (“Where … the court chooses to sentence a defendant remains in the sound judgment of the court”). Whether the court chooses to use the full range of sentences is a function of its assessment of the aggravating and mitigating factors, including whether the defendant’s commitment is necessary for the “protection of the public.” Id. at 168.
Applying this framework, defense counsel should argue that an extended term is not warranted. A balancing of the mitigating and aggravating factors must militating in favor of the judge imposing a sentencing within the ordinary-term range. Circling back to the earlier example, because the ordinary-term range for second-degree Unlawful Possession of a Weapon is between five and tern years in New Jersey State Prison, defense counsel should argue strenuously that the defendant be sentenced to five years in New Jersey State Prison, or the lowest end of the ordinary-term range.