State v. Livingston

797 A.2d 153, 172 N.J. 209, 2002 N.J. LEXIS 583
CourtSupreme Court of New Jersey
DecidedMay 23, 2002
StatusPublished
Cited by33 cases

This text of 797 A.2d 153 (State v. Livingston) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Livingston, 797 A.2d 153, 172 N.J. 209, 2002 N.J. LEXIS 583 (N.J. 2002).

Opinions

The opinion of the Court was delivered by

COLEMAN, J.

This appeal raises novel questions concerning the application of the Persistent Offenders Accountability Act, also known as the “Three Strikes” law, N.J.S.A. 2C:43-7.1a. That statute mandates a sentence of life imprisonment for a third-time criminal offender “who has on two or more prior and separate occasions been convicted” of certain enumerated first- and second-degree offenses. The specific issue raised is whether the statute may be applied to a third-time offender who previously entered two separate guilty pleas for two separate crimes at one plea proceeding and was sentenced for those separate crimes in one sentencing proceeding. To answer that question, we must decide whether those contemporaneous convictions were imposed “on two or more prior and separate occasions” as required by the “Three Strikes” law.

The Appellate Division in a published opinion concluded that defendant could not be sentenced to life imprisonment under the “Three Strikes” law because his two prior convictions were imposed in one proceeding and not “on two or more prior and separate occasions.” State v. Livingston, 340 N.J.Super. 133, 140, 773 A.2d 1195 (2001). The court reasoned that the statute focuses on separate convictions, not separate crimes, and was not applica[213]*213ble because defendant’s convictions “occurred in a single continuous proceeding.” Id. at 144, 773 A.2d 1195. We agree and hold that a person is not eligible for sentencing under the “Three Strikes” law unless the predicate convictions have been imposed in two or more separate and distinct proceedings held on different dates, rather than one single continuous proceeding.

I.

In the early morning hours of August 8, 1995, Rodney Jenkins, a medical security officer at Trenton Psychiatric Hospital, left a bar and dropped off a co-worker at home in Trenton. Jenkins was a member of the hospital’s security officers’ basketball team and had gone out with his teammates after a game. While driving his girlfriend’s van Jenkins pulled into the parking lot of a closed Sunoco service station on Prospect Street in Trenton. As he used a coin-operated telephone in the Sunoco station, Marcus Payton drove past the station with defendants Sylvester Livingston in the front seat and Derrick Grimsley in the back seat. As Jenkins talked on the phone, Payton circled the area and eventually stopped his vehicle around the corner purportedly to relieve himself. Payton testified that he observed Livingston and Grims-ley pull a black revolver from a knapsack and walk around the corner toward the Sunoco station. Payton heard three gunshots and then saw Grimsley drive away in the van that Jenkins had been driving, with Livingston in the passenger seat. All three individuals left Jenkins lying on the ground as they departed the area.

Of the three gunshots heard by Payton, the first missed Jenkins but the two others struck him in the back as he tried to run from his attackers. One bullet pierced his shoulder and the other struck him in the center of his back, seriously wounding him. John Christie, one of Jenkins’s coworkers, drove by the Sunoco station seconds after the shooting and saw Jenkins lying on the ground. Christie transported Jenkins to Mercer County Hospital with the aid of Clark Wiley, a nearby neighbor. Jenkins was [214]*214critically wounded and eventually lost the use of both of his legs, his left arm and shoulder as a result of the shooting.

Livingston and Grimsley were indicted for first-degree carjacking, in violation of N.J.S.A. 2C:15-2; first-degree robbery, in violation of N.J.S.A. 2C:15-1; third-degree theft, in violation of N.J.S.A. 2C:20-3a; fourth-degree unlawful taking of a motor vehicle, in violation of N.J.S.A 2C:20-10b; first-degree attempted murder, in violation of N.J.S.A 2C:ll-3 and 2C:5-1; second-degree aggravated assault, in violation of N.J.S.A 2C:12-lb(l); fourth-degree aggravated assault, in violation of N.J.S.A 2C:12-lb(4); second-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A 2C:39-4a; and third-degree unlawful possession of a weapon, in violation of N.J.S.A 2C:39-5b. A jury found Livingston and Grimsley guilty on all counts. Although Livingston’s conviction was affirmed on appeal below, he is not involved in this appeal. This appeal relates solely to Grims-ley’s sentencing.

In advance of Grimsley’s sentencing hearing, the State served notice of its intention to seek an extended term of imprisonment based on three different theories of repeat offender status: (1) as a Graves Act offender under N.J.S.A 2C:43-6c; (2) as a persistent offender under N.J.S.A 2C:44-3a; or (3) as a repeat violent offender under the “Three Strikes” law, N.J.S.A 2C:43-7.1a. The State’s motion relied on Grimsley’s two prior convictions for two separate first-degree robberies. The first robbery occurred in Essex County on December 1, 1983 and the second occurred in Union County on May 10, 1985. The two robbery indictments were consolidated for plea disposition in Union County at which time defendant entered separate guilty pleas within minutes of each other on October 24, 1985. On December 3, 1985, the Superior Court in Union County entered separate judgments of conviction and sentenced Grimsley to concurrent twelve-year terms of imprisonment with four years of parole ineligibility on each robbery. Those judgments were entered approximately nine- and-one-half years before the “Three Strikes” law became effec-[215]*215five. Nonetheless, at the sentencing hearing conducted on the present indictment in April 1999, the State argued that Grimsley’s convictions for the two prior robberies committed on two distinct occasions constituted two predicate strikes under the “Three Strikes” law, notwithstanding the fact that both convictions were entered contemporaneously. Defense counsel, on the other hand, argued that the two convictions were not separate because they were imposed on one occasion.

The trial court concluded that, although Grimsley’s prior robberies occurred on different dates and were charged in two separate indictments, he was not eligible for an extended term under the “Three Strikes” law because “the statute expressly requires that the defendant be convicted on two separate occasions.” Because Grimsley’s two robbery convictions were imposed on the same day, he “was essentially convicted on one occasion” and his prior convictions counted as only one predicate “strike,” not two. The court, accordingly, sentenced Grimsley to two concurrent extended terms of life imprisonment under the Graves Act with a parole ineligibility period of twenty-five years on the carjacking and attempted murder convictions. The court also imposed a consecutive ten-year sentence with a parole ineligibility term of five years for the weapons conviction.

Grimsley appealed the life sentence for carjacking, and the State cross-appealed the trial court’s failure to sentence Grimsley under the “Three Strikes” law. The Appellate Division rejected the State’s argument that Grimsley’s prior robbery convictions constituted convictions “on two or more prior and separate occasions” under the “Three Strikes” law. State v. Livingston, supra, 340 N.J.Super.

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Cite This Page — Counsel Stack

Bluebook (online)
797 A.2d 153, 172 N.J. 209, 2002 N.J. LEXIS 583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-livingston-nj-2002.