STATE OF NEW JERSEY VS. MICHAEL CLARITY (13-10-0621, SOMERSET COUNTY AND STATEWIDE)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4596-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
November 6, 2019
v.
APPELLATE DIVISION
MICHAEL CLARITY,
Defendant-Appellant.
_____________________________
Argued October 16, 2019 – Decided November 6, 2019
Before Judges Fisher, Accurso and Gilson.
On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Indictment No. 13-10-
0621.
Margaret Ruth McLane, Assistant Deputy Public
Defender, argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney; Tamar Yael Lerer,
Assistant Deputy Public Defender, of counsel and on
the briefs).
Paul Henry Heinzel, Assistant Prosecutor, argued the
cause for respondent (Michael H. Robertson, Somerset
County Prosecutor, attorney; Paul Henry Heinzel, of
counsel and on the brief).
The opinion of the court was delivered by
FISHER, P.J.A.D.
In this appeal, we again consider the State's pursuit of an extended term
sentence based on its claim that defendant is a persistent offender under N.J.S.A.
2C:44-3(a). In a prior appeal, we reversed and remanded for resentencing
because the sentencing judge erroneously held that defendant was "last
confine[d]" within ten years of the offense by equating "probation" with
"confinement." State v. Clarity, 454 N.J. Super. 603, 611 (App. Div. 2018).
Following our remand, the State offered evidence – not previously presented –
of other incarcerations to demonstrate defendant was confined within ten years
of the crime for which he was sentenced. Based on defendant's concession that
this new information demonstrated he was eligible for an extended term under
N.J.S.A. 2C:44-3(a), the judge imposed the same extended term as before. In
appealing this new judgment of conviction, defendant argues the State's
information about the "last release from confinement" was inadmissible and
could not support a finding that he is a persistent offender. Because of
defendant's concession at sentencing, we affirm.
We start with N.J.S.A. 2C:44-3(a), which permits imposition of a
discretionary extended term when a defendant is found to be a persistent
offender, which, as relevant here, is an offender whose last of two prior crimes
was committed or when the offender's "last release from confinement" –
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"whichever is later" – occurred within ten years of the crime for which sentence
was imposed.
In the prior appeal, we determined that the trial judge mistakenly
sentenced defendant to an extended term on a crime committed here on August
17 and 18, 2013,1 when it was established that defendant's last prior crime
occurred in Florida on July 26, 2003, slightly more than ten years before.
Defendant was sentenced in Florida on the July 2003 offense to a three-year
probationary term that did not include incarceration; notwithstanding, the
sentencing judge held that being on probation is the equivalent of being
"confined" and concluded defendant's "last release from confinement" – the date
on which the probationary term ended – must have occurred within ten years.
We rejected the judge's interpretation of "confinement" and remanded for
resentencing. Clarity, 454 N.J. Super. at 611.
In deciding the first appeal, we also said that if "all that was before us"
was the meaning of "confinement" and the significance of the probationary term,
we would have "simply reverse[d] and remand[ed] for resentencing without
application of N.J.S.A. 2C:44-3(a)." Id. at 612. But, as we observed in the
1
Defendant pleaded guilty to third-degree child endangerment, N.J.S.A. 2C:24-
4(a).
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third section of our prior opinion, the State had argued "and provided some
evidence" to suggest defendant was "briefly detained in Florida in 2006" for
having violated a condition of the probationary term. Ibid. While we questioned
whether a brief detention in such circumstances would qualify as "confinement,"
we determined the best course – because facts about this 2006 incident "were
not presented to the sentencing judge," ibid., although mentioned in the
presentence report, id. at 612 n.8, and because these allegations were not then
relied on by the sentencing judge – was to remand for resentencing and, if
necessary, "further development" of the State's claim about the brief 2006
detention. Id. at 612.
At resentencing, the State provided, as we allowed, additional information
about defendant's 2006 Florida arrest. That information suggested defendant
was then arrested for a violation of probation and was detained for eighteen days
before the judge imposed a six-month extension of the preexisting probationary
term. The State also provided the sentencing judge with information about
defendant's later scrapes with the Florida criminal justice system. The State
referred to defendant's arrests in Florida:
 on March 1, 2007, for a violation of probation for
which, on June 11, 2007, he was sentenced to a
thirty-month prison term; defendant was released
from prison on April 26, 2009.
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 on September 10, 2010, for solicitation of
prostitution for which, on October 4, 2010, he
was sentenced to a twenty-five-day jail sentence.
This information about a second violation of probation in 2007 and a prostitution
solicitation conviction in 2010 was never previously presented to the sentencing
judge, never asserted by the State as a ground for finding defendant to be a
persistent offender in its 2016 motion for an extended term, and never presented
to us during defendant's first appeal. The submission of information about the
2007 and 2010 incidents also arguably exceeded the scope of the mandate
expressed in our earlier opinion. The importance of the appellate remand in
such an instance cannot be understated. See, e.g., State v. Randolph, 210 N.J.
330 (2012).
Without claiming that the State was barred from presenting this new
information because of its failure to provide or cite to this information when
moving for an extended term, and without questioning the sufficiency of the
information provided at the time of resentencing, defendant's counsel
acknowledged his client was eligible for an extended term as a persistent
offender; counsel repeatedly conceded the facts necessary for imposition of an
extended term by telling the sentencing judge:
 [I]t appears to me based upon the records that I
was just shown that [defendant] was confined
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within ten years . . . prior to the alleged crime in
this matter which would make him eligible for [a]
discretionary extended term.
 I do not believe that the prior convictions being
used for purposes of considering an extended
term in any way violate Apprendi[2] because
they're prior convictions.
 I am convinced that [defendant] is eligible for a
discretionary extended term. The [c]ourt could
sign an [o]rder to that effect.
 I do see based upon the records provided me
today that [defendant] was released from
confinement on violations of probation within the
last ten years.
 The [c]ourt can certainly [conclude] that
[defendant] is eligible for an extended term.
In light of these concessions, the judge imposed the same eight-year extended
prison term, subject to a four-year period of parole ineligibility, on defendant's
conviction for third-degree child endangerment.
Defendant appeals, arguing that the State failed to prove his eligibility for
sentencing as a persistent offender and that his sentence was otherwise excessive
because of "inappropriate double counting." We find insufficient merit in
2
Apprendi v. New Jersey, 530 U.S. 466 (2000).
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defendant's second argument to warrant discussion in a written opinion, R. 2:11-
3(e)(2), and we reject the first argument for the following reasons.
In his first point, defendant argues the State failed to show he was a
persistent offender. He claims the materials offered by the State to show he was
last released from confinement following his service of a thirty-month prison
term in Florida in 2009 are insufficient because those materials were
inadmissible under the rules of evidence and not "Shepard-approved,"3 citing
Kirkland v. United States, 687 F.3d 878, 886 (7th Cir. 2012). We need not so
closely peruse these materials to determine their admissibility or whether they
would pass the constitutional test imposed by Shepard because defendant
conceded the facts necessary to prove the State's claim that he is a persistent
offender. In reaching this conclusion, we need only briefly identify the types of
issues that might have posed impediments to the State's pursuit of an extended
term in these circumstances.
What the State must prove and the level of proof required in such
circumstances are engirdled not only by legislative guidelines but by
constitutional limits as well. As for the former, we note that the Legislature has
not expressly described the degree to which the State must prove the facts
3
Shepard v. United States, 544 U.S. 13 (2005).
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necessary for a finding that a defendant is a persistent offender. Elements of an
offense must be proved beyond a reasonable doubt, N.J.S.A. 2C:1-13(a), but
"[w]hen the application of the code depends upon the finding of a fact which is
not an element of an offense, unless the code otherwise provides," N.J.S.A.
2C:1-13(d), "[t]he fact must be proved to the satisfaction of the court or jury, as
the case may be," N.J.S.A. 2C:1-13(d)(2) (emphasis added). Similarly, the
Legislature declared that a "prior conviction" – one aspect of a persistent
offender finding – "may be proved by any evidence, including fingerprint
records made in connection with arrest, conviction or imprisonment, that
reasonably satisfies the court that the defendant was convicted." N.J.S.A.
2C:44-4(d) (emphasis added). While spelling out what is required when the
State seeks to prove a prior conviction, the Legislature left a vacuum as to other
aspects of what it means to be a persistent offender. In the prior appeal, we
considered what the Legislature likely meant by its use of the word
"confinement." Clarity, 454 N.J. Super. at 609. The level of proof necessary
for a finding of a defendant's "last release from confinement" also resides in this
vacuum.
Federal constitutional principles also limit a state's attempt to seek an
extended term. In Apprendi, the Supreme Court recognized that the Sixth
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Amendment requires that "any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt." 530 U.S. at 490. Apprendi recognized only a single
narrow exception to this principle: "the fact of a prior conviction." Ibid.
Apprendi does not expressly hold that proof of the "last release from
confinement" also falls within this narrow exception, nor are we aware of any
authorities suggesting it does.
Assuming without deciding that facts concerning a defendant's last
confinement, like a prior conviction, need not be found by a jury, we turn to
defendant's arguments about the materials offered by the State and whether those
materials comply with Shepard's requirements. Shepard refined the Court's
earlier holding in Almendarez-Torres v. United States, 523 U.S. 224, 247
(1998), and declared that, while the prior conviction exception remained in
force, reviewing courts must be wary of adopting, on their face, facts suggested
by a defendant's prior guilty plea or conviction. Shepard, 544 U.S. at 25. That
is, the Court recognized there may be instances where a guilty plea or a
conviction may not sufficiently demonstrate the commission of a crime that
qualifies the defendant for an extended term and emphasized that it is the jury's
finding of a disputed fact that is "essential" when increasing the "cei ling of a
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potential sentence." Ibid.4 Defendant argues that the State's information about
the 2007 and 2010 incidents falls short of the certitude required by Shepard.
This contention is enhanced by the State's concession that its information
about the 2006, 2007, and 2010 incidents are in a form that would preclude the
information's admission under the rules of evidence. For example, one of the
documents provided by the prosecution on remand was a copy of an email sent
to the prosecutor's office – apparently conveyed by a Florida counterpart – that
incorporated a "screen shot" of what a Florida database revealed about
defendant's criminal history, as well as defendant's time in and out of Florida
correctional facilities. This and other documents do not appear to be self-
authenticating, see N.J.R.E. 902, and nothing was presented to allow for
authentication in any other way suggested by the rules of evidence.
4
In Shepard, the Court considered the fact that only certain prior convictions
would allow for the extended term authorized by the Armed Career Criminal
Act, 18 U.S.C. § 924(e). Burglary was listed as an eligible prior conviction but
its inclusion was complicated by the fact that some states define burglary
differently than others. Thus, the Court was required to consider what a
sentencing judge might look to – consistent with the Sixth Amendment and due
process – in determining whether a particular burglary conviction met the
ACCA's requirements. It is in this context that the Court refined what facts a
sentencing court may consider beyond those facts established by a jury when
contemplating the imposition of an extended term. See State v. Thomas, 188
N.J. 137, 145 (2006).
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Of course, had push come to shove, things might not have stopped there.
For instance, if defense counsel had not conceded the relevant facts but instead
stood on defendant's right to insist that the State prove the facts necessary to
find defendant a persistent offender, the State likely would have sought an
opportunity to enhance its proofs. We will not speculate on what could have or
should have happened in that instance had the concession not been made .
Our existing jurisprudence does not clearly answer many of these
questions we have briefly identified.5 And they will not be answered now,
because we find nothing in either the guidelines provided by our Criminal Code
or the constitutional principles announced by the Supreme Court of the United
5
Our Supreme Court has held only that there is no Sixth Amendment violation
in a sentencing judge's "consideration of objective facts about defendant's prior
convictions, such as the dates of convictions, his age when the offenses were
committed, and the elements and degrees of the offenses, in order to determine
whether he qualifies as a 'persistent offender.'" State v. Pierce, 188 N.J. 155,
163 (2006) (emphasis added). These particular facts would appear to be what
we referred to in categorizing what Apprendi permits as the "who, what, when
and where" of a prior conviction. State v. Dixon, 346 N.J. Super. 126, 140 (App.
Div. 2001). But it is not at all clear from Dixon whether we were then attempting
to sweep into those generalities all recidivism facts, such as the date of a
defendant's "last release from confinement," which seems unrelated to the
existence of predicate prior convictions. See also United States v. Santiago, 268
F.3d 151, 156 (2d Cir. 2001) ("read[ing]" more broadly "Apprendi as leaving to
the [sentencing] judge, consistent with due process, the task of finding not only
the mere fact of previous convictions but other related issues as well," without
expressing what those "other related issues" might be). Again, because of how
this appeal is presented to us, we need not provide our view of these issues.
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States in Apprendi or Shepard or our Supreme Court in Pierce and Thomas that
would prohibit a sentencing judge from relying on a defendant's concession that
he was eligible for an extended term as a persistent offender. Interesting though
these other issues may be, we decide only that defendant's concession of the
necessary factual predicate for an extended term was enough. See State v.
Turcotte, 239 N.J. Super. 285, 299 (App. Div. 1990); State v. Wright, 113 N.J.
Super. 79, 81 (App. Div. 1971); see also Pierce, 188 N.J. at 162 (finding
unnecessary a determination whether N.J.S.A. 2C:44-3(a) was "constitutionally
vulnerable" by "authoriz[ing] a judicial finding that a defendant is a persistent
offender" because the defendant "apparently concede[d]" the existence of the
necessary prior convictions). Even a concession expressed in error, as may be
suggested by defendant's appellate counsel's argument that the State's evidence
was inadequate to support the concession,6 does not render the sentence
unlawful. Sentencing judges are permitted to rely on such concessions, and this
concession was clear and certain enough to reasonably satisfy the sentencing
judge that defendant is a persistent offender. Even if Sixth Amendment
principles impose a higher standard than the "reasonably satisfies" standard
6
Any such allegations about trial counsel's effectiveness, which we mention
only because defendant's appellate arguments suggest grounds for disputing the
State's evidence, are better left to post-conviction relief proceedings.
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contained in N.J.S.A. 2C:44-4(d), we find nothing in Apprendi or Shepard that
would preclude a sentencing judge from finding a defendant to be a persistent
offender beyond a reasonable doubt when the defendant has conceded the
relevant facts.
Affirmed.
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