                       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               NOT FOR PUBLICATION WITHOUT THE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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                                       3
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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                                         4
                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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                                         6
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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                                        7
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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                                        8
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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                                      10
      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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                                      11
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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                                      12
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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