State v. Kiriakakis and Mandatory Minimum Terms

This past November, the New Jersey Supreme Court decided State v. Kiriakakis.  There the Court upheld the constitutionality of a sentence within the range authorized by a jury verdict that included a mandatory period of parole ineligibility, or parole disqualifier.

Understanding this holding requires a review of basic sentencing concepts.  First, the New Jersey Code of Criminal Justice authorizes ranges of sentences for different degrees of criminal offenses.  Generally speaking, someone convicted of a fourth degree offense can receive a sentence of up to 18 months.  A third degree offender can receive a sentence within a range of three to five years.   A second degree offender can be sentenced to between five and ten years.  With some notable exceptions not relevant here, a first degree offender can be sentenced within a range of ten to twenty years.  A sentence for a particular defendant within the statutory range is supposed to be based upon a balancing of aggravating and mitigating factors that are also listed in the sentencing section of the Code.  These factors are supposed to help guide the judge to customize the sentence to the needs of the case.  Our judges have considerable discretion to impose sentences within the applicable statutory ranges, so long as they follow the proper procedures.

Sentencing involves more than just setting a number within a range based upon a balancing of factors listed in the statute.  Some sentences are a “flat” number, which is simply a term of years standing alone.  However, sentences can, and often are, composed of two separate numbers.  The “top” number is the highest or outside number of years that a defendant will serve.  The “bottom” number is the amount of time that a defendant must serve before becoming eligible for parole.  The latter may be referreed to as a “period of parole ineligibility”, “parole disqualifier”, or “stip”.  (Both of these numbers can be reduced by “credits”, but that issue is not relevant here).

Finally, a defendant obviously cannot be sentenced to anything until they have been adjudicated guilty of a particular offense that has a given degree assigned to it, and that adjudication of guilt must be based upon the finding of facts that supports each element of the charged offense.  A line of cases hold that the facts supporting each element of an offense must come from one of two sources: either a jury must find them after a trial, or a defendant must admit to them at a plea hearing.  A judge cannot independently determine that these facts exist based upon what they may know about the case.

This was the issue in Kiriakakis.  There, a jury convicted the defendant of a second degree narcotics offense, and the court sentenced the defendant to a term of eight years with four years of parole ineligibility.  A section of our sentencing statute allows a judge to impose a period of parole ineligibility (or bottom number) that is up to one half the full term imposed (or top number).  To do so, the judge must review the applicable aggravating and mitigating factors, and be clearly convinced that the former substantially outweigh the latter.  The question before the Court was whether the finding of facts underlying the aggravating and mitigating factors qualified as impermissible judicial fact finding as opposed to facts found by a jury or admitted by the defendant, thereby invalidating the sentence.

The Court answered this question in the negative.  The sentencing judge did not engage in the sort of fact finding necessary to support the elements of a criminal offense and a finding of guilt.  Rather, a jury found the requisite facts and convicted the defendant of a second degree offense, and the judge subsequently imposed a sentence within the statutory range for a second degree crime.  Further, in balancing the aggravating and mitigating factors, the judge followed the appropriate statutory procedure for setting the parole disqualifier which was also within the appropriate sentencing range.  Thus, the Court drew a distinction between finding the facts necessary for supporting the original adjudication of guilt, as opposed to making the findings that were necessary to support the aggravating and mitigating factors underlying the sentence which included a period of parole ineligibility.  Because the finding and balancing of sentencing factors pursuant to the statutory procedure was within the judge’s discretion, the sentence, including the parole disqualifier, was constitutionally valid.

This case makes an important statement about the responsibility of sentencing judges and defense attorneys at sentencing.  First, it has been my experience that many judges simply list the aggravating and mitigating factors underlying a particular sentence without any explanation or analysis as to why those factors apply to the matter at bar.  This is typically reflected on the judgement of conviction, which usually lists aggravating and mitigating factors with no discussion.  Sentencing judges must make a more complete record that explains why they believe a given set of factors applies to a particular case so that their findings and conclusions can be properly reviewed.  Additionally, defense attorneys must make sure that sentencing judges make such a record so that issues relating to the sentence are properly preserved for appeal.

James S. Friedman, Esq., is a criminal trial attorney based in New Brunswick, New Jersey.  If you have a criminal charge in any New Jersey Superior Court or any municipal court, the New York State criminal courts located in Manhattan or Brooklyn, or the federal district courts in New Jersey or New York City, contact him to learn about your options and plan your defense.



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