Parole Ineligibility and the Sixth Amendment (Part 1)

by | Jan 22, 2019 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

On November 5, 2018, the New Jersey Supreme Court decided the Bergen County case of State v. Nicholas Kiriakakis. The principal issue was whether N.J.S.A. 2C:43-6(b) violates the Sixth Amendment by giving a sentencing judge the discretion to impose a period of parole disqualification based on a balancing of aggravating and mitigating factors.

Writing for a unanimous Court, Justice Albin held in relevant part: In affirming the constitutionality of N.J.S.A. 2C:43-6(b), however, Abdullah relied on two cases that are no longer good law — Harris, which has been explicitly overruled by Alleyne, and State v. Stanton (2003), which has been implicitly overruled by both Alleyne and Grate. That Abdullah can no longer rest on the pillars of Harris or Stanton does not mean that N.J.S.A. 2C43-6(b) does not have a sturdy constitutional foundation.

As we will discuss, N.J.S.A. 2C:43-6(b) passes constitutional muster in the wake of both Alleyne and Grate.

A defendant convicted of second-degree conspiracy to distribute cocaine is subject to an ordinary-range sentence of five to ten years’ imprisonment and a parole ineligibility range of zero to five years. In setting the appropriate sentence in either range, the sentencing court must engage in several steps of discretionary decision-making.

First, the court must determine whether any of the aggravating factors or mitigating factors are supported by credible evidence in the record. Second, the court must assign an appropriate weight to any established factor. Third, the court must balance any aggravating factors against any mitigating factors and decide whether one set of factors outweighs the other.

In the case of an ordinary-term sentence, “when the mitigating factors preponderate, sentences will tend toward the lower end of the range, and when the aggravating factors preponderate, sentences will tend toward the higher end of the range.” In the case of imposing a minimum period of parole ineligibility under N.J.S.A. 2C43-6(b), the court must be “clearly convinced that the aggravating factors substantially outweigh the mitigating factors,” and even then the court is not required to impose such a sentence.

The specific provision of the Sixth Amendment at issue here is the right to an impartial jury. The defense argument is that if a particular fact or set of facts subjects a defendant to a longer prison sentence, the fact(s) should be found by a unanimous jury at trial as opposed to a judge at sentencing.

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