Judge Fisher continued in relevant part: 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.
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. 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 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.
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, 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, 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.
The Opinion raises the issue of whether trial counsel was ineffective for making a concession that the State otherwise might not have been able to prove. With a plea offer or sentencing argument that called for an extended term, it is difficult to imagine what benefit the defendant derived from his trial counsel’s concession.
