Violation of Drug Court permits
court to impose extended sentence
STATE of New Jersey,
Plaintiff–Respondent, v. Darryl BISHOP, Defendant–Appellant.
State of New Jersey,
Plaintiff–Respondent, v. Wilberto Torres, Defendant–Appellant.
Decided:
February 27, 2013
Before Judges SIMONELLI, KOBLITZ and LISA. John
Douard, Assistant Deputy Public Defender, argued the cause for appellants
Darryl Bishop and Wilberto Torres (Joseph E. Krakora, Public Defender,
attorney; Mr. Douard, of counsel and on the briefs). Joie Piderit, Assistant
Prosecutor, argued the cause for respondent State of New Jersey (Bruce J.
Kaplan, Middlesex County Prosecutor, attorney; Ms. Piderit, of counsel and on
the briefs). Jeffrey S. Chiesa, Attorney General, attorney for amicus curiae Attorney
General of the State of New Jersey in A–0048–11 and A–1399–11 (Jennifer E.
Kmieciak, Deputy Attorney General, of counsel and on the brief). Pinilis
Halpern, LLP, attorneys for amicus curiae Association of Criminal Defense
Lawyers of New Jersey in A–0048–11 and A–1399–11 (Jeffrey S. Mandel, of counsel
and on the brief). main body
The opinion of the court was delivered by
These cases1 require determination of the principles applicable to resentencing a
defendant whose special probation pursuant to N.J.S.A. 2C:35–14 has been
permanently revoked.2 Defendants Darryl Bishop and Wilberto Torres argue that the trial court
erred in resentencing them for their underlying convictions of possession with
intent to distribute a controlled dangerous substance within one thousand feet
of school property, N.J.S.A. 2C:35–7, to extended terms of imprisonment with a
parole disqualifier pursuant to N.J.S.A. 2C:43–6f. Relying on cases applicable
to resentencing after a revocation of “regular” probation pursuant to N.J.S.A. 2C:45–3b,
defendants contend that the sentences they received are impermissible because
the prosecutor, by consenting to their initial special probation sentence,
irrevocably waived the right to seek such a sentence upon permanent revocation
of special probation.
We disagree with defendants. We hold that mandatory
periods of parole ineligibility and mandatory extended term provisions that
existed at the time of original sentencing survive during the term of special
probation and remain applicable at the time of resentencing upon permanent
revocation of special probation. Accordingly, we affirm.
I.
Both defendants pled guilty to possession with intent
to distribute heroin within one thousand feet of school property, N.J .S.A.
2C:35–7. Both defendants had been previously convicted of drug offenses that
rendered them eligible for mandatory extended terms, if requested by the
prosecutor, pursuant to N.J.S.A. 2C:43–6f.
Pursuant to plea agreements in both cases, the
prosecutor consented to defendants being sentenced to Drug Court, more
particularly, to special probation pursuant to N.J.S.A. 2C:35–14a, for which
defendants met all eligibility criteria. Each plea agreement recommended a
sentence of special probation, but also provided for an “alternate sentence” of
seven years imprisonment with a forty-two-month parole disqualifier. This
constituted an extended term sentence in each case pursuant to N.J.S.A.
2C:43–6f, calculated under the Revised Attorney General Guidelines For
Negotiating Cases Under N.J.S.A. 2C:35–12, July 15, 2004 (Attorney General
Guidelines ).
After serving a portion of their special probation
terms, each defendant pled guilty to multiple and serious probation violations.
Neither defendant disputed that his probation should be permanently revoked, nor
does either defendant now contend that revocation was improper.
At their violation of probation (VOP) sentencings, the
prosecutor sought imposition of the seven-year sentences with forty-two-month
parole disqualifiers as alternatively provided for in the plea agreements.
Bishop asked the court to consider imposing a five-year sentence with a
three-year parole disqualifier, or to consider waiving the parole disqualifier.
Torres requested a seven-year sentence with a thirty-month parole disqualifier.
In each case, the court reassessed the applicable aggravating and mitigating
factors. The court found in each case the presence of the same three
aggravating factors that existed at the time of original sentencing, namely (3)
the risk of another offense, (6) defendant's prior record, and (9) the need for
deterrence; the court found no mitigating factors present. See N.J.S.A.
2C:44–1a and b. Finding a substantial preponderance of aggravating factors as
to each defendant, the court sentenced Bishop to seven years imprisonment with
a forty-two-month parole disqualifier, and sentenced Torres to seven years
imprisonment with a thirty-six-month parole disqualifier.
Defendants now contend that their VOP sentences
constituted an abuse of discretion and violated the sentencing principles laid
down in State v. Baylass, 114 N.J. 169, 553 A.2d 326 (1989), State v. Lagares,
127 N.J. 20, 601 A.2d 698 (1992), State v. Vasquez, 129 N.J. 189, 609 A.2d 29
(1992), and State v. Peters, 129 N.J. 210, 609 A.2d 40 (1992). Defendants argue
that, in accordance with the principles prescribed in these cases, their VOP
sentences should have been no more than four years imprisonment with no parole
disqualifier.
In advancing their argument, defendants begin with the
proposition that “there is no such thing as an agreed-upon ‘alternative
sentence’ in the event of a VOP.” They further argue that by consenting to
their entry into special probation, the prosecutor irrevocably waived the right
to seek an extended term sentence pursuant to N.J.S.A. 2C:43–6f, should a VOP
occur. In defendants' view, the alternative presented to them in their plea
agreements at the time of their original pleas gave them the option of choosing
either special probation or a state prison sentence not to exceed seven years with
a forty-two-month parole disqualifier. They argue that once they made their
choice and were sentenced, the other alternative was no longer of any effect
and, having chosen special probation, the prison alternative could not be
rekindled upon a VOP. Thus, they contend, at their VOP sentencings, the
prosecutor lacked the authority to seek an extended term sentence with a parole
disqualifier, and the court lacked the authority to impose such a sentence.3
II.
We begin our analysis by distinguishing between regular
probation and special probation. Regular probation has long been an authorized
disposition under the New Jersey Code of Criminal Justice (Code), N.J.S.A.
2C:1–1 to 2C:104–9. See N.J.S.A. 2C:43–2b(2). Regular probation is a non-state
prison sentence (although it can be conditioned upon serving not more than 364
days in a county jail). Ibid.
In general terms, a regular probationary sentence is
typically imposed for third or fourth-degree offenses which do not contain a
specific provision requiring a state prison sentence. For such offenders with
no prior criminal record, there is a presumption against state prison, and for
such offenders with a prior record, there is no presumption either for or
against state prison. N.J.S .A. 2C:44–1e; State v. Meyer, 192 N.J. 421, 433 n.
5, 930 A.2d 428 (2007). Where there is no presumption either for or against
state prison, the court must weigh aggravating and mitigating factors
enumerated in N.J.S.A. 2C:44–1a and b in making the “in-out” decision, that is,
whether to impose a state prison sentence or a probationary sentence. State v.
Clarke, 203 N.J. 166, 176 (2010); Meyer, supra, 192 N.J. at 433 n. 5, 930 A.2d
428.
For crimes of the first or second degree, there is a
presumption of imprisonment, N.J.S.A. 2C:44–1d, which is rarely overcome. State
v. Soricelli, 156 N.J. 525, 532–34, 722 A.2d 95 (1999). Thus, for such
offenders, a regular probationary sentence is almost never appropriate under
the Code's general sentencing provisions.
Special probation is another authorized disposition
under the Code. It is not contained in N.J.S.A. 2C:43–2b(2), but in N.J.S.A.
2C:35–14. The term “special probation” first appeared in that section when it
was amended in 1999. Meyer, supra, 192 N.J. at 434, 930 A.2d 428. As we will
explain, that amendment, together with subsequent amendments, set special
probation apart from regular probation, rendering each a separate and distinct
sentencing disposition authorized by the Code.
Special probation is designed to divert otherwise
prison-bound offenders into an intensive and highly specialized form of
probation designed to “address in a new and innovative way the problem of
drug-dependent offenders caught in a never-ending cycle of involvement in the
criminal justice system.” Id. at 434–35, 930 A.2d 428. Thus, the Legislature
created special probation as a disposition aimed specifically at prison-bound
offenders, who would not be eligible for regular probation.
We recognize, of course, that drug dependent offenders
sentenced to regular probation may also be admitted to Drug Court under a
separate track than those admitted on the special probation track prescribed by
N.J.S.A. 2C:35–14. Ibid. This opinion does not deal with those admitted to Drug
Court under the regular probation track; it deals only with offenders sentenced
to special probation under N.J.S.A. 2C:35–14, whose probation is subsequently
permanently revoked.
In the immediate aftermath of the Supreme Court's 2007
decision in Meyer, the Legislature again amended N.J.S.A. 2C:35–14. Among other
things, the amendment gave legislative approval to the Meyer holding, making
clear that although Drug Court is available under two tracks (special probation
and regular probation), the two are separate and distinct. Indeed, the 2008
amendment added the following to the beginning of N.J.S.A. 2C:35–14a:
a. Any person who is ineligible for probation due to a
conviction for a crime which is subject to a presumption of incarceration or a
mandatory minimum period of parole ineligibility may be sentenced to a term of
special probation in accordance with this section, and may not apply for drug
and alcohol treatment pursuant to N.J.S. 2C:45–1 [specifying the conditions of
regular probation]. Nothing in this section shall be construed to prohibit a
person who is eligible for probation in accordance with N.J.S. 2C:45–1 due to a
conviction for an offense which is not subject to a presumption of
incarceration or a mandatory minimum period of parole ineligibility from
applying for drug or alcohol treatment as a condition of probation pursuant to
N.J.S. 2C:45–1.
[L. 2008, c. 15, § 1, eff. Aug. 1, 2008.]
Thus, stated in very broad terms, offenders sentenced
to regular probation are not necessarily prison bound, based upon the nature
and seriousness of their crimes and the general sentencing provisions of the
Code. On the other hand, offenders sentenced to special probation are prison
bound because their offenses, deemed more serious in the Code, carry a
mandatory or presumptive term of imprisonment. Their eligibility for this form
of non-prison sentence is not determined by weighing aggravating and mitigating
factors as is the case with regular probation, but by reference to the
enumerated statutory requirements listed in N.J.S.A. 2C:35–14. Clarke, supra,
203 N.J. at 175. It is logical that in light of the vastly different criteria
governing admission to these separate forms of probation, the consequences of
resentencing upon revocation of probation should also differ.
III.
The Code provides as follows for resentencing upon
revocation of regular probation:
When the court revokes ․ probation, it may impose on the defendant any
sentence that might have been imposed originally for the offense of which he
was convicted.
[N.J.S.A. 2C:45–3b.]
As we previously stated, defendants rely upon the
Supreme Court's interpretation of that provision as the basis for their
argument.
In Baylass, the Court held that upon resentencing
after a VOP, the court must consider the aggravating factors that existed at
the time of the original sentence, and weigh and balance them against
mitigating factors as affected by probation violations. Baylass, supra, 114
N.J. at 178, 553 A.2d 326. Because the weighing of aggravating and mitigating
factors at the time of original sentencing supported a probationary (rather
than prison) sentence, the Court further held that it would be a rare case in
which the post-VOP balancing of original aggravating factors and surviving
mitigating factors would weigh in favor of a term of imprisonment greater than
the presumptive (now midrange4 ) sentence or of a period of parole ineligibility. Ibid. The offenses in
Baylass were three counts of fourth-degree forgery, N.J.S.A. 2C:21–1a. Id. at
171, 553 A.2d 326. That offense does not provide for any mandatory minimum
period of parole ineligibility. Therefore, the Court's analysis pertained to
the possibility of a discretionary minimum period of parole ineligibility
pursuant to N.J.S.A. 2C:43–6b. Id. at 178, 553 A.2d 326.
Three years after Baylass, the Court considered the
constitutionality of N.J.S.A. 2C:43–6f. Lagares, supra, 127 N.J. at 23, 601
A.2d 698. In Lagares, the Court was not dealing with a VOP sentence, but the
initial sentence of a defendant convicted of third-degree distribution of a
controlled dangerous substance, N.J .S.A. 2C:35–5, who, because of a prior drug
conviction, was eligible for extended term sentencing, if requested by the
prosecutor, pursuant to N.J.S.A. 2C:43–6f. Id. at 24, 601 A.2d 698. The Court
held that section 6f could withstand separation of powers and due process
challenges only if interpreted to require the adoption of uniform statewide
guidelines to govern the exercise of prosecutorial discretion in choosing
whether or not to request imposition of an extended term, which, once
requested, is mandatory for the court. Id. at 32–33, 601 A.2d 698. The Court
noted that “[t]hose guidelines should reflect the legislative intent to make
extended sentencing of repeat drug offenders the norm rather than the
exception.” Id. at 32, 601 A.2d 698.
Although Lagares did not involve a VOP sentencing, its
holding and rationale, along with the holding and rationale in Baylass,
provided much of the underpinning for the Court's decision a few months later
in the remaining cases upon which defendants rely, Vasquez and its companion
case, Peters.5
In Vasquez, the defendant pled guilty to a school zone
offense, namely possession with intent to distribute cocaine within one
thousand feet of school property, N.J.S.A. 2C:35–7. Vasquez, supra, 129 N.J. at
192, 609 A.2d 29. Pursuant to a negotiated plea agreement, the prosecutor
waived imposition of the mandatory three-year parole disqualifier prescribed
for that offense and recommended a probationary sentence, but the plea
agreement also provided that if the defendant violated probation, the
prosecutor would withdraw the waiver and seek resentencing with the mandatory
parole disqualifier. Ibid.
The defendant violated probation, and on resentencing
the court concluded it had no discretion to refrain from imposing the
statutorily mandated parole disqualifier in light of the plea agreement
provision, and sentenced him to four years imprisonment with a three-year
parole disqualifier. Id. at 193, 609 A.2d 29. The Supreme Court was therefore
confronted with the issue of “whether on resentencing following a violation of
probation the court is compelled by the sentencing statute to impose the period
of parole ineligibility and whether the prosecutor, having originally waived
the parole disqualifier, has the authority at resentencing to demand the
imposition of the period of parole ineligibility.” Id. at 192, 609 A.2d 29.
The Court first disposed of the separation of powers
challenge to N.J.S.A. 2C:35–12 by applying its rationale and holding in Lagares
and reaching the same result. Id. at 195–97, 609 A.2d 29. Thus, the Court held
that to render constitutional N.J.S.A. 2C:35–12, authorizing prosecutorial
waiver of minimum periods of parole ineligibility, uniform guidelines were
needed to regulate the exercise of prosecutorial discretion. Ibid. The Court
then turned to the principles that should guide determination of an appropriate
VOP sentence when the underlying offense, a school zone offense, provides for a
mandatory parole disqualifier.
The Court began by quoting the statutory provision
governing resentencing after a VOP, namely that the court “ ‘may impose on the
defendant any sentence that might have been imposed originally for the offense
for which he [or she] was convicted.’ “ Id. at 197, 609 A.2d 29 (quoting
N.J.S.A. 2C:45–3b). Thus the Court applied the same resentencing standard as in
Baylass, applicable to all resentencing after revocation of regular probation.
Unlike in Baylass, the analysis in Vasquez was complicated by the statutory
parole disqualifier prescribed for the underlying offense. Therefore, the Court
was required to analyze the interrelationship between N.J.S.A. 2C:35–7
(providing for the mandatory parole disqualifier), and N.J.S.A. 2C:35–12
(authorizing prosecutorial waiver of the parole disqualifier). Id. at 197–200,
609 A.2d 29.
The Court concluded that, because prosecutors are
authorized by section 12 to waive the parole disqualifier in section 7,
“section 7 sentencing is not ‘mandatory,’ at least in the typical or
conventional use of mandatory sentencing.” Id. at 199, 609 A.2d 29. The Court
further reasoned that once waived, the parole disqualifier under section 7 is
no longer mandatory for purposes of VOP resentencing and that prosecutors
retain no sentencing authority on resentencing regarding imposition of a parole
disqualifier. Id. at 200, 609 A.2d 29.
Because it was construing a penal statute, the Court
felt constrained to construe it strictly in the absence of express and clear
statutory language to the contrary. Id. at 200–01, 609 A.2d 29. The Court
concluded:
Thus, unless the Legislature has made clear its intent
to have the mandatory parole disqualifier apply at violation of probation
sentencing, the court is not justified in imputing that intent to the
Legislature. We are satisfied that it has not. The mandatory term of section 7
is itself not truly mandatory because it may be waived. Moreover, section 12,
which authorizes the waiver of the mandatory term, does so only in the context
of the original sentencing. That waiver may occur as part of a plea agreement or
a post-conviction sentencing agreement. However, the legislation does not
expressly mandate that a parole disqualifier be applied at the resentencing
stage or authorize the exercise by the prosecution of any power to waive or
request such a parole disqualifier at that stage.
[Id. at 201, 609 A.2d 29.]
The Court thus held that the Baylass framework was
applicable to the resentencing process and, in the absence of express statutory
authority, the Court was unable to infer a legislative intent to impose an absolute
mandatory parole disqualifier on resentencing for a VOP based on a school zone
offense. Id. at 201–02, 609 A.2d 29.
However, recognizing the material difference between
the penalties prescribed for the underlying offenses in Baylass and in Vasquez,
the Court determined that on resentencing after a VOP for a school zone offense
the court must follow the Baylass principles, “subject, however, to a
discretionary authority to impose a period of parole ineligibility under
appropriate circumstances and based on adequate findings.” Id. at 205, 609 A.2d
29. For such cases, in which the underlying offense contained a mandatory, but
waiveable, parole disqualifier, the Court summarized the modified Baylass rule
as follows:
Hence, the sentencing court, following a violation of
probation, cannot return to a sentence more stringent than was appropriate
originally except in the rare case. Nonetheless, although we reject the State's
position that on resentencing for violation of probation the imposition of a
period of parole ineligibility is mandatory in the absence of the prosecutor's
waiver, we hold that a period of parole ineligibility may be imposed in
conjunction with the imposition of a presumptive custodial term as a matter of
judicial discretion.
[Id. at 206, 609 A.2d 29.]
IV.
When the decisions in Baylass, Lagares, Vasquez, and
Peters were rendered, between 1989 and 1992, N.J.S.A. 2C:35–14 provided for a
very limited rehabilitation program for drug-dependent prison-bound offenders
who could, under prescribed circumstances, be placed on “probation,” subject to
appropriate and reasonable “terms and conditions as may be required by the
court and by law, pursuant to N.J.S.A. 2C:45–1.” L. 1987, c. 106, § 1,
operative July 9, 1987. Thus, a defendant qualifying under this section could
be admitted to regular probation. As we have previously stated, the concept of
special probation was not introduced until the 1999 amendment. Importantly,
under the pre–1999 version, N.J.S.A. 2C:35–14d provided that upon revocation of
probation the court was empowered to “impose on the defendant any sentence that
might have been imposed originally for the offense of which he was convicted.”
L. 1987, c. 106, § 1, operative July 9, 1987. This is precisely the same
language that was contained then, and continues to be contained now, in
N.J.S.A. 2C:45–3b, governing a court's sentencing authority for a violation of
regular probation.
In the 1999 amendments to N.J.S.A. 2C:35–14, the
Legislature, presumably being cognizant of these decisions, enacted a provision
that changed the sentencing authority of courts for resentencing upon permanent
revocation of special probation. Section d, which contained the identical
sentencing provision that existed for regular probation, was deleted in its
entirety. L. 1999, c. 376, § 2, eff. Jan. 14, 2000. It was replaced by a new
section, N.J.S.A. 2C:35–14f(4), which currently remains in effect and provides,
in relevant part:
(4) If the court permanently revokes the person's
special probation pursuant to this subsection, the court shall impose any
sentence that might have been imposed, or that would have been required to be
imposed, originally for the offense for which the person was convicted or
adjudicated delinquent. The court shall conduct a de novo review of any
aggravating and mitigating factors present at the time of both original
sentencing and resentencing.
[N.J.S.A. 2C:35–14f(4) (emphasis added).]
Our task is to interpret this new section. In doing
so, we must ascertain the intent of the Legislature in enacting it. DiProspero
v. Penn, 183 N.J. 477, 492, 874 A.2d 1039 (2005). The best indicator of that
intent is the statutory language itself, to which courts should ascribe its
ordinary meaning and significance. Ibid . In doing so, the words should be read
in context with related provisions to give sense to the legislation as a whole.
Ibid. If the language is clear and unambiguous, and susceptible to only one
interpretation, no further inquiry should be made. Ibid. However, if there is
ambiguity in the language that could lead to more than one plausible
interpretation, courts may consider extrinsic evidence, including legislative
history, committee reports, and contemporaneous construction. Id. at 492–93,
874 A.2d 1039. Courts may also consider extrinsic evidence if a plain reading
would lead to an absurd result or if the overall statutory scheme is at odds
with the plain language. Id. at 493, 874 A.2d 1039.
Applying these principles, we conclude that this
statutory change reflects legislative intent to provide a separate VOP
resentencing regime for special probation than that which had previously
existed and continues to exist for regular probation. It constitutes a marked
departure from the regular probation standard and provides express statutory
direction preserving all sentencing provisions available at the original
sentencing in the event of revocation of special probation. This new provision
comports with the fundamental difference in admission criteria to special
probation as opposed to regular probation.
We conclude that the replacement of the former
N.J.S.A. 2C:35–14d with the new N.J.S.A. 2C:35–14f(4) was a substantive change,
and not a mere shift in verbiage. We base our conclusion on the plain language
of the statute. To the extent that any ambiguity might exist, our conclusion is
bolstered by several factors.
First, the Legislature left untouched the resentencing
provision for regular probation in N.J.S.A. 2C:45–3b. This indicates a
legislative intent to leave intact the Baylass principles for resentencing upon
revocation of regular probation, but changing the principles applicable to
resentencing upon revocation of special probation.
Second, as the Court explained in Baylass, it would
only be a rare case in which a non-prison-bound offender admitted to regular
probation should, upon revocation of probation, receive more than a mid-range
flat sentence. That analysis is based upon the nature and seriousness of the
underlying offense and the identification at the original sentencing of
aggravating and mitigating factors, in which a preponderance of mitigating
factors would have weighed in favor of choosing probation over state prison as
the original sentence. Thus, even if, as a result of the VOP, some or all of
the mitigating factors were diminished in weight or eliminated, the rebalancing
of original aggravating and remaining mitigating factors would not be expected
to support a sentence above the mid-range or a sentence with a discretionary
parole disqualifier. That analytical framework does not apply to prison-bound
offenders sentenced to special probation.
Third, the carrot-and-stick approach is integral to
the Drug Court concept. Prison-bound offenders are given an opportunity to be
diverted from a state prison sentence if they are willing to avail themselves
of the rehabilitative opportunities available in Drug Court in an effort to
free themselves from the recurring cycle of drug dependency and criminal
activity. The legislative history of the 1999 amendments includes the Report to
the Governor by the Attorney General on the Need to Update the Comprehensive
Drug Reform Act of 1987, December 9, 1996. That document “call[ed] for new ways
to support drug court programs. One way is to provide judges with new legal
tools with which to ‘leverage ’ addicts into treatment.” Id. at 18, 553 A.2d
326 (emphasis added). The legislation that followed created special probation,
as distinguished from regular probation, and established the new resentencing
provision applicable upon revocation of special probation.
This evidences an awareness by the Legislature that
strong incentives would be required to keep special probationers on the often
difficult path to rehabilitation. It is well accepted that relapse is part of
rehabilitation. Indeed, echoing the same theme as in the Attorney General's
report, the 1999 legislation includes a similar reference in its provisions
dealing with intermediate sanctions on a special probationer. When violations
occur, courts are directed to “consider the recommendations of the treatment
provider with respect to the likelihood that [thirty days to six months]
confinement would serve to motivate the person to make satisfactory progress in
treatment once special probation is reinstated.” N.J.S.A. 2C:35–14g (emphasis
added).
The Attorney General Guidelines accord with these
concerns. They authorize prosecutors to “tender a ‘conditional’ offer under
these Guidelines, affording the defendant the option to choose either the
Brimage6 offer or to
be sentenced to rehabilitative treatment pursuant to N.J.S.A. 2C:35–14.”
Attorney General Guidelines, supra, § 3.13, at 22. This is for the purpose of
“encouraging prosecutors to empower sentencing courts to use the leverage of
the criminal justice system to convince addicted offenders to accept the rigors
of clinically appropriate treatment interventions.” Ibid. The Attorney General
Guidelines further elaborate that special probation “is designed to address the
concern that the prospect of a probationary or county jail sentence may be
insufficient to provide the sentencing court with the leverage necessary to
convince an addicted defendant to overcome denial and accept the rigors of
clinically-appropriate treatment, such as the treatment provided pursuant to
N.J.S.A. 2C:35–14 (treatment in lieu of imprisonment).” Id. at § 6.5.4, at 47.
Although the Attorney General Guidelines are silent
regarding resentencing upon revocation of special probation, the foregoing
provisions assist and support our analysis. The ultimate motivation or
leverage, a tool needed to enable Drug Courts to operate effectively, is the
threat of the substantial sentence that would have been imposed originally if
the defendant were not admitted to Drug Court through special probation.
Fourth, uniformity in sentencing is a fundamental goal
of the Code. Brimage, supra, 153 N.J. at 19–22, 706 A.2d 1096. Indeed, the
Attorney General Guidelines, often referred to as the “Brimage Guidelines,”
were promulgated at the direction of the Supreme Court in Brimage to assure
uniformity. Id. at 23, 706 A.2d 1096. Our interpretation of N.J.S.A.
2C:35–14f(4) advances the fundamental goal of sentencing uniformity.
Prison-bound offenders who meet the eligibility requirements of N.J.S.A.
2C:35–14 are afforded an opportunity at rehabilitation through Drug Court. However,
for those who do not successfully avail themselves of the opportunity, the
sentencing consequences should be the same as if the opportunity had not been
extended to them in the first place. We do not think the Legislature
established a comprehensive system to divert prison-bound offenders in the
hopes of their rehabilitation, only to allow those who fail to receive a much
more lenient sentence than similarly situated offenders who are not given the
opportunity. Such an interpretation would invite manipulation by offenders to
get into special probation, knowing that their admission would entitle them to
the windfall of a reduced sentence upon revocation.
Fifth, in 2012, the Legislature again amended N.J.S.A.
2C:35–14. Among the changes was the deletion of subsection c, which gave
prosecutors the right to object to special probation, which could be overridden
only upon a judicial finding of a gross and patent abuse of prosecutorial
discretion. L. 2012, c. 23, § 5, eff. Jan. 19, 2013. Thus, in its present form,
the consent of the prosecutor is no longer required for admission to special
probation. Accordingly, the entire premise of defendants' waiver argument is no
longer viable.
We do not deem this most recent amendment as intended
to effect any change in the sentencing standard applicable upon revocation of
special probation. The overall purpose of the 2012 amendment was to reduce
eligibility requirements for admission to special probation, to compel
admission for qualified offenders, and to expand the Drug Court program to all
counties throughout the state. Indeed, the amendment left section 14f(4)
unchanged, making even more clear that section 14 operates as a comprehensive
stand-alone disposition scheme that is independent of N.J.S.A. 2C:35–12.
Finally, inclusion of an “alternative offer” or
“alternative sentence” is expressly provided for in the Manual for Operation of
Adult Drug Courts in New Jersey, July 22, 2002 (Drug Court Manual ), approved
by the Judicial Council, and recognized by our Supreme Court as an
authoritative source for the operation of the Drug Court program. Meyer, supra,
192 N.J. at 431, 930 A.2d 428. The Drug Court Manual prescribes the practices
and procedures to be used in Drug Court. Clarke, supra, 203 N.J. at 174. Of
course, the judicial branch cannot, through an approved manual or otherwise,
create a sentencing disposition not authorized by the Legislature in the Code.
Meyer, supra, 192 N.J. at 435, 930 A.2d 428. We suggest no such thing. However,
the Drug Court Manual provides further confirmation of our interpretation of
the statutory language authorizing disposition of an offender whose special
probation is permanently revoked.
Like the Attorney General Guidelines, the Drug Court
Manual contains no specific provisions pertaining to resentencing upon
revocation of special probation. However, it contains provisions such as the
following that support our decision in this case:
Prison-bound cases are defined as defendants who, but
for the drug court program, would be sentenced to a term of imprisonment in a
New Jersey state prison. These offenders must meet all other eligibility
criteria. The plea agreement in these cases must clearly indicate that the
defendant has been given an alternative offer and must set forth the state
prison sentence that was being offered as the alternative to the drug court
program, e.g. Drug Court participation or three years in New Jersey State
Prison.
[Drug Court Manual, supra, at 9.]
If an applicant is found both legally and clinically
acceptable for the drug court program, a formal plea bargain should therefore
be offered to the applicant defendant which identifies drug court participation
as an alternative sentence.
[Id. at 23, 930 A.2d 428.]
The plea agreements in these cases complied with these
provisions. Without dispute, both defendants were fully informed and expressed
their understanding that, if they violated special probation, their probation
could be permanently revoked, in which case they would be subject to a sentence
not exceeding the Brimage alternative of seven years imprisonment with a
forty-two-month parole disqualifier. This was not an automatic agreed-upon
sentence, as defendants contend, and it did not deprive the court of its
ultimate sentencing authority. The court had the authority to impose any lawful
sentence not to exceed that recommended as an alternative in the plea
agreement.
In these cases, the sentencing range was five years
with a three-year parole disqualifier at the low end (the lowest available
extended term, pursuant to N.J.S.A. 2C:43–6f and N.J.S.A. 2C:43–7a(4)), to
seven years with a forty-two-month parole disqualifier at the high end (the
Brimage offer). Upon reexamination of aggravating and mitigating factors, and a
finding of a substantial preponderance of aggravating factors in each case, the
court sentenced Bishop to seven years imprisonment with a forty-two-month
parole disqualifier, and Torres to seven years imprisonment with a
thirty-six-month parole disqualifier. We are satisfied that the court followed
the correct sentencing guidelines and, in a reasonable exercise of discretion,
imposed appropriate sentences in both cases within the permissible range.
Affirmed.
FOOTNOTES
1. These
appeals were calendared back-to-back, and we now consolidate them for
disposition in this opinion.
2. These
cases were initially argued on an excessive sentencing calendar pursuant to
Rule 2:9–11, after which we issued orders directing full briefing and placement
on a plenary calendar. After argument on the plenary calendar, we invited the Attorney
General and the Association of Criminal Defense Lawyers of New Jersey to file
amicus curiae briefs.
3. At
oral argument, defense counsel apparently conceded that a discretionary period
of parole ineligibility of up to three years might have been legally
authorized, presumably as part of an ordinary term sentence for the school zone
offenses, under the provisions of N.J.S.A. 2C:35–7. See Vasquez, supra, 129 N
.J. at 206, 609 A.2d 29. Defense counsel nevertheless adhered to his primary
position that no minimum period of parole ineligibility was warranted in these
cases and that imposition of such a term would have constituted an abuse of
discretion. Our disposition of this appeal does not require independent
analysis of this issue because the primary focus is on the mandatory extended
term pursuant to N.J.S.A. 2C:43–6f, which includes by its terms a minimum
period of parole ineligibility of at least three years, thereby subsuming the
three year minimum period of parole ineligibility prescribed by N.J.S.A.
2C:35–7.
4. See
State v. Natale, 184 N.J. 458, 488, 878 A.2d 724 (2005).
5. We
will confine our references to Vasquez because the Court's relevant analysis
and holding was the same in both cases.
6. State
v. Brimage, 153 N.J. 1, 706 A.2d 1096 (1998).
LISA, J.A.D. (retired and temporarily assigned on
recall).
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