Defendant challenges his extended-term sentence as a persistent offender based on Erlinger v. United States, 602 U.S. 821 (2024), decided on June 21, 2024. The Erlinger majority held that under the Fifth and Sixth Amendments, a jury—not a sentencing judge—must decide whether the defendant's prior convictions had been committed on separate occasions, which is required to impose an enhanced sentence under the federal Armed Career Criminal Act. It is undisputed that Erlinger abrogates the New Jersey Supreme Court's decision in State v. Pierce, 188 N.J. 155 (2006), which reached a different conclusion with respect to enhanced punishment as a persistent offender under N.J.S.A. 2C:44-3(a).
The State acknowledges that the Erlinger rule applies retroactively to "pipeline" cases pending direct appeal. The State also concedes that defendant's Fifth and Sixth Amendment rights under Erlinger were violated when the judge, rather than a jury, decided that he was a persistent offender eligible for an extended term of imprisonment.
The Attorney General nonetheless contends that the violation in this pipeline case was harmless constitutional error because the factual basis for defendant's extended-term eligibility is "overwhelming" and "uncontested." The court ultimately rejects that argument. The court notes that while the harmless constitutional error doctrine is mentioned in a one-paragraph concurring opinion and a dissenting opinion, the majority opinion in Erlinger is conspicuously silent on the topic. The court declines to speculate on why the majority opinion does not address that doctrine.
Instead, the court focuses on the portion of the majority opinion that explicitly rejected the argument that a jury verdict is not required when the predicate facts for an enhanced sentence are "so "'straightforward'" that sending it to a jury would be pointlessly inefficient." 602 U.S. at 839. Stated another way, the majority opinion makes clear that overwhelming evidence does not obviate the need to have the decision made by a jury rather than a judge. The majority in Erlinger also stressed that "[t]here is no efficiency exception to the Fifth and Sixth Amendments." Id. at 842.
The court concludes that applying the harmless constitutional error doctrine in these circumstances would eviscerate the Erlinger rule. The court therefore vacates defendant's persistent-offender extended-term sentence.
The court rejects defendant's contention the plain language of N.J.S.A. 2C:44-3(a) precludes a jury from determining whether defendant is eligible for an extended term of imprisonment as a persistent offender. The court concludes the Legislature would prefer to have it construe the statute to comply with the Erlinger rule rather than allow the enhanced sentence provision to succumb to its constitutional infirmity. Accordingly, the court remands to the trial court with instructions on how to remedy the constitutional violation.