On April 26, 2018, a three-judge appellate panel decided the Somerset County case of State v. Michael Clarity. The principle issue was whether defendant’s sentence to probation for a prior crime qualified as “confinement” for purposes of extended sentencing under the persistent offender statute.
Writing for the panel, Judge Fisher wrote in relevant part as follows: One avenue prescribed by N.J.S.A. 2C:44-3(a) for finding a defendant to be a persistent offender and eligible for an extended term is that the crime in question must have occurred within ten years of “the latest in time” of defendant’s prior “crimes.” As noted above, the crime charged here occurred on August 17-18, 2013; defendant’s last prior crime was committed on July 26, 2003, slightly more than ten years earlier. If the date of the crime controls – as the Legislature clearly stated – then this aspect of N.J.S.A. 2C:44-3(a) does not support the State’s position that the judge correctly imposed an extended term. Stated another way, if by referring to the prior “crime” the Legislature actually meant the prior “conviction,” the State and the trial judge would be correct. That construction however, to quote Justice Holmes, isn’t “interpretation but perversion.” Five Per Cent Discount Cases, 243 U.S. 97, 106 (1917).
The statute’s plain language is unambiguous and requires no interpretation. A “crime” occurs on the date or dates the accused acted in a manner proscribed by a criminal statute. A “conviction” happens when an accused is legally determined to have committed a crime or offense; in short, a “conviction” occurs when the criminal adjudication occurs. By phrasing the statute as it did, the Legislature must be assumed to have meant what it said; the date of the “crime” and not the date of the “conviction” is the relevant event for this aspect of the persistent-offender statute. We need not burden this opinion further with a recitation of interpretation canons to conclude that the date to which the judge was required to examine the application of N.J.S.A. 2C:44-3(a) was the July 26, 2003 Florida crime, not the May 13, 2004 Florida conviction. With the former date being more than ten years before the crimes charged here, the judge could not utilize this avenue as the path to applying the persistent-offender statute.
The Appellate panel reached what appeared to be an obvious conclusion based on the plain language of the persistent offender statute. Somehow, the trial court reached the opposite conclusion.