Determining the Existence of Prior Convictions

by | Apr 30, 2026 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

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.

Excellent rating
Based on 288 reviews
Google star 1Google star 2Google star 3Google star 4Google star 5
Google star 1Google star 2Google star 3Google star 4Google star 5
Especially given the situations we had to work under right now with COVID-19, I am glad to have had Fred Sisto represent me. The outcome was much better than anticipated, and he always ensured to maintain proper communication, including not going any further until you 100% understood what's going on, and made a point to keep me updated as much as possible with any of the incoming changes due to quarantine (which was confusing for me at first). Always has your best interests in mind, and an all-around great attorney and person.
Mel C
Google star 1Google star 2Google star 3Google star 4Google star 5
Fred is a detail minded attorney that works tirelessly to get the job done right. If you need help Fred knows how to take care of your issues. Fred has years of experience and will work hard for justice for his clients. Fred is easy to talk to and has great communication skills!
Gibson H
Google star 1Google star 2Google star 3Google star 4Google star 5
We retained Fred to represent our daughter. He was amazing from our first phone call. He led us through the process and assured us that all would be taken care of. He was absolutely wonderful with our daughter. We couldn’t have asked for a better outcome. Thank you Fred from the bottom of our hearts. If you need a criminal attorney Fred Sisto Esq. is your guy. Trust me you won’t be disappointed.
Sherry F
Google star 1Google star 2Google star 3Google star 4Google star 5
I have sought out Mr. Sisto for two traffic related cases. His hard work and dedication to getting results for me was very evident from the get go. He was very informative throughout the entire process of working on my cases and during the court sessions as well. Very professional and very friendly. If anyone in the area is looking for a very good and quality representation, Mr. Sisto is a go to.
Brett S
Google star 1Google star 2Google star 3Google star 4Google star 5
I was very content with Fred’s services. He was extremely communicative throughout the entire process and I am happy with our results.
Lidia D
Google star 1Google star 2Google star 3Google star 4Google star 5
Fred Sisto is a great attorney. Highly recommend. He is very trustworthy, professional, and has great communication skills, one being that he is very down to earth and makes you feel comfortable in all possibilities. I am very happy I went with him to represent me, we received the best possible outcome for our matter, while he was honest with all possibilities along the way.
Mike A
Google star 1Google star 2Google star 3Google star 4Google star 5
Even though I didn't end up using Fred; I had the best experience from him out of anyone I called for a consultation. He was very clear and consise, made sure I understood my options for the situation I was faced with. He ultimately gave me the confidence to go to court pro se for my case. I also get weekly emails now that are extremely helpful and include a wealth of information for goings on around my area.
Warren C
Google star 1Google star 2Google star 3Google star 4Google star 5
Fred's services has been more than exceptional. He provided updates on my case. He got me one of the best outcomes i could have asked for, and has represented me twice with amazing results. Fred can work his magic on your case just as he did for me
Chris K
Google star 1Google star 2Google star 3Google star 4Google star 5
Fred is an excellent attorney. Even though we did not initiate the official pleading process, he deep dived into researching and sorted out my questions without any consultation fee. I highly recommend him!
Qianru Z
Google star 1Google star 2Google star 3Google star 4Google star 5
Great service
Kelly G