The Appellate Division continued in relevant part: 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 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, (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 “ceiling of a potential sentence.” Ibid. Defendant argues that the State’s information about the 2007 and 2010 incidents falls short of the certitude required by Shepard.
It is strange that Apprendi makes an exception for prior convictions with regard to the proof beyond a reasonable doubt requirement. One basis could be that a very remote conviction from a rural state might be difficult to prove with any degree of certainty.