On February 23, 2026, the New Jersey Supreme court decided the Atlantic County case of State v. Jamel Carlton. The principal issue under N.J.S.A. 2C:44-3 concerned whether the jury was required to determine the existence of prior convictions that were the basis for the extended term sentence.
Justice Noriega wrote for the unanimous Court in relevant part: In this appeal, the Court considers whether an enhanced sentence under N.J.S.A. 2C:44-3(a), New Jersey’s persistent offender statute, predicated on fact finding rendered without the benefit of a jury, could be subject to harmless error review in the wake of Erlinger v. United States, 602 U.S. 821 (2024).
Defendant Jamel Carlton was convicted of sexual assault, burglary, and other offenses. At sentencing, the State moved to have him sentenced as a persistent offender and presented two certified judgments of conviction in support of its application. The trial court accepted those records — without objection from the defense — and determined Carlton was persistent-offender-extended-term eligible. Carlton appealed, raising various errors regarding his trial. While his appeal was pending, the Supreme Court of the United States issued Erlinger, in which it held that a defendant is entitled under the Fifth and Sixth Amendments to have a jury unanimously determine, beyond a reasonable doubt, whether the defendant’s past offenses were “committed on occasions different from one another” under the Armed Career Criminal Act. Following Erlinger, Carlton and the State agreed that Carlton’s enhanced sentence was unconstitutional because the judge made the findings about his persistent offender status. The parties disagreed as to whether harmless error applied. The Appellate Division determined that the Erlinger error here could not be harmless and vacated the sentence. The court employed a “saving construction” to conform N.J.S.A. 2C:44-3(a) to Erlinger’s mandate.
The Erlinger error is subject to harmless error review and was harmless under the circumstances of this case. However, as written, N.J.S.A. 2C:44-3(a) is inconsistent with the principles announced in Erlinger. The Court calls upon the Legislature to revise this provision to comport with Erlinger’s mandate.
The Due Process Clause requires proof beyond a reasonable doubt of every fact necessary to constitute the crime. Under the Sixth Amendment, defendants are entitled to have such proof presented to a jury. In Almendarez-Torres v. United States, the United States Supreme Court concluded that a judge could determine the existence of a prior conviction as part of the sentencing process. But, two years later, the Court held that, “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Later cases likewise required that penalty increasing facts be submitted to a jury and proven beyond a reasonable doubt. See Alleyne v. United States, 570 U.S. 99, 112 (2013); Blakely v. Washington, 542 U.S. 296, 303, 313 (2004). Erlinger cements the limited reach of the Almendarez-Torres exception and reaffirms Apprendi and Blakely, holding that even “seemingly straightforward” factual determinations relating to prior convictions are reserved for the jury when those facts increase sentencing exposure.
N.J.S.A. 2C:44-3 provides that “the court may” impose an extended-term sentence “if it finds one or more of the grounds specified in subsection a., b., c., or f. of this section.” Subsection (a), specifically at issue in this case, addresses when a defendant may be sentenced as a persistent offender.
Errors in failing to submit sentencing factors or elements to a jury, as in Apprendi and its progeny, are presumptively subject to harmless error analysis. And although the Supreme Court has not addressed harmless error review in Erlinger’s wake, courts have reviewed Erlinger issues for harmless error and considered whether the prosecution had established beyond a reasonable doubt that the outcome would have been the same absent the constitutional violation. Noting that, here, the record provided meaningful appellate review and only one outcome would have been possible at trial, the Court finds the Erlinger error was harmless.
Because it finds the Erlinger error in this case was harmless beyond a reasonable doubt, the Court does not reach the Appellate Division’s conclusion that judicial surgery could be used to conform the persistent offender statute to Erlinger. The Court urges the Legislature to promptly amend the persistent offender statute so that it comports with the United States Supreme Court’s precedent and provides clear direction to the courts and practitioners charged with applying it.
There is a trend in criminal cases decided by the U.S. Supreme Court. When justices that are seemingly on opposite ends of the political spectrum join in dissent, they are often justified in disagreeing with the majority. Such was the case with the three—judge dissent in Erlinger v. United States. There, Justices Kavanagh, Alito, and Jackson dissented from the holding that a jury must determine the existence of prior convictions in a case like this. Justices Kavanagh and Alito are known for being “conservative”. Justice Jackson is known as a “liberal”. In Erlinger, they came together and appear to have gotten it right. Such was the case in the past with Justices Scalia (conservative) and Ginsburg (liberal) when they were on the same side of a divided Court’s opinion.
