State v. ToddState v. Todd
Pursuant to a plea agreement, defendant David G. Todd pleaded guilty to two counts of distribution of drugs, two
The trial judge merged the offenses of possession and possession with intent to distribute into the distribution charges and imposed concurrent sentences of five years imprisonment with a two year parole disqualifier on the remaining four convictions. He also imposed mandatory penalties of $1,000 on each count pursuant to
The defendant appeals, raising various constitutional challenges to certain sections of the Comprehensive Drug Reform Act of 1986,
Point I: N.J.S.A. 2C:35-14 is unconstitutional in that it violates the separation of powers clause of the State constitution by removing the power to place a defendant in a drug rehabilitation program unless the prosecutor consents.
Point II: N.J.S.A. 2C:35-7 and 2C:35-12 penalizes the exercise of constitutional rights and operate to coerce guilty pleas and are therefore unenforceable.
Point III: N.J.S.A. 2C:35-12 violates the separation of powers clause of the State constitution by removing sentencing power from the judiciary and delegating to the prosecutor the authority to fix sentences.
Point IV: N.J.S.A. 2C:35-7 and 2C:35-14 violate the State and federal constitutional provisions against the imposition of cruel and unusual punishments.
Point V: N.J.S.A. 2C:35-7 violates the State and federal constitutional prohibition against double jeopardy.
Point VI: N.J.S.A. 2C:35-7 violates the equal protection clause of the United States Constitution and New Jersey Constitution.
The State has cross-appealed, contending that the trial judge erred in merging the convictions for possession with intent to distribute drugs with the convictions for distribution thereof and in imposing a laboratory fee penalty on only two of the convictions.
The arguments raised by defendant in Points II, IV, V and VI have been considered and rejected by this court and the Law Division. See State v. Blow, 237 N.J. Super. 184, 567 A.2d 253 (App.Div. 1989); State v. Ogar, 229 N.J. Super. 459, 551 A.2d 1037 (App.Div. 1989); State v. Brown, 227 N.J. Super. 429, 437-438, 547 A.2d 743 (Law Div. 1988); State v. Morales, 224 N.J. Super. 72, 81-83, 539 A.2d 769 (Law Div. 1987). We see no reason to address them any further here.
The two remaining issues warrant a fuller discussion. Defendant pleaded guilty to two counts charging violations of
Any person who violates subsection a. of N.J.S. 2C:35-5 by distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog while on any school property used for school purposes which is owned by, or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property or school bus, or while on any school bus, is guilty of a crime of the third degree and shall, except as provided in N.J.S. 2C:35-12, be sentenced by the court to a term of imprisonment.... [N.J.S.A. 2C:35-7, emphasis added.]
Thus, the exception to a mandatory jail sentence is set forth in
Whenever an offense defined in this chapter specifies a mandatory sentence of imprisonment which includes a minimum term during which the defendant shall be ineligible for parole, or a mandatory extended term which includes a period of parole ineligibility, the court upon conviction shall impose the mandatory sentence unless the defendant has pleaded guilty pursuant to a negotiated agreement or, in cases resulting in trial, the defendant and the prosecution have entered into a post-conviction agreement, which provides for a lesser sentence or period of parole ineligibility. The negotiated plea or post-conviction agreement, may provide for a specified term of imprisonment within the range of ordinary or extended sentences authorized by law, a specified period of parole ineligibility, a specified fine, or other disposition. In that event, the court at sentencing shall not impose a lesser term of imprisonment, period of parole ineligibility or fine than that expressly provided for under the terms of the plea or post-conviction agreement. [N.J.S.A. 2C:35-12, emphasis added.]
As a corollary, defendant similarly attacks the constitutionality of
a. Notwithstanding the presumption of incarceration pursuant to the provisions of subsection d. of N.J.S. 2C:44-1, and except as provided in subsection b. of this section, whenever a drug dependent person is convicted of an offense under N.J.S. 2C:35-5, N.J.S. 2C:35-6, section 1 of P.L. 1987, c. 101 (C. 2C:35-7), N.J.S. 2C:35-10, N.J.S. 2C:35-11, or N.J.S. 2C:35-13, other than a crime of the first degree, the court, upon notice to the prosecutor, may, on motion of the defendant and where the court finds that no danger to the community will result and that the placement will serve to benefit the defendant by serving to correct his or her dependency on controlled substances, place the defendant on probation which shall be for a term of five years. As a condition of that probation, the court shall order the defendant to enter a drug rehabilitation program, subject to such other reasonable terms and conditions as may be required by the court and by law, pursuant to N.J.S. 2C:45-1, and which shall include periodic urine testing for drug usage throughout the period of probation.
b. Except upon the joint application of the defendant and the prosecuting attorney, no person convicted of an offense under N.J.S. 2C:35-6 or section 1 of P.L. 1987, c. 101 (C. 2C:35-7), or who has been previously convicted of an offense under subsection a. of N.J.S. 2C:35-5 or a similar offense under any other law of this State, any other state or the United States, shall be eligible for sentence in accordance with this section. [N.J.S.A. 2C:35-14a and 14b, emphasis added.]
Under
In State v. Morales, 224 N.J. Super. 72, 539 A.2d 769 (Law Div. 1987), the court tangentially addressed this contention when multiple defendants claimed that they were unconstitutionally penalized by
In State v. Brown, 227 N.J. Super. 429, 547 A.2d 743 (Law Div. 1988), the defendant directly contended that
Decisions from other jurisdictions have considered the constitutionality of statutes which purport to elevate prosecutorial discretion over judicial discretion in the fixing of criminal sentences. Those which do uphold the prosecutor‘s discretion subject it to final judicial authority, however. There is significant out-of-state authority which simply invalidates the delegation of such a power as a violation of the separation of powers doctrine.
In People v. Navarro, 7 Cal.3d 248, 102 Cal. Rptr. 137, 497 P.2d 481 (1972), the defendant was convicted both of selling heroin and of assault with a deadly weapon. A California statute — similar to
The Supreme Court of California held that the requirement for the prosecutor‘s agreement violated the separation of powers clause of the state constitution because it subjected the judicial sentencing authority to the prosecutor‘s control.2 Id. 102 Cal. Rptr. at 143-145, 497 P.2d at 487-489.
Similarly, in State v. Olson, 325 N.W.2d 13 (Minn. 1982), the defendant was convicted of an assault that carried a statutory minimum sentence of three years imprisonment. However, under a pertinent Minnesota statute, analogous to
In State v. LeCompte, 406 So.2d 1300 (La. 1981), reh. den., 446 So.2d 314 (La. 1984), defendants were charged with narcotics trafficking. Under a pertinent Louisiana statute, following conviction and mandatory sentencing, the prosecutor could move the court for a reduced or suspended sentence if the defendant had provided substantial assistance to the prosecution. The defendants contended that the disputed statute violated the separation of powers doctrine.
Initially the LeCompte court saw no constitutional impediment but, on rehearing, recognized that “[g]iving the trial judge the final authority to impose a reduced or suspended sentence if the district attorney in his discretion decides to
In Brugman v. State, 255 Ga. 407, 339 S.E.2d 244 (1986), the defendants were convicted of trafficking in cocaine. They appealed, arguing that the legislature had unconstitutionally delegated the sentencing power of the judiciary to the prosecutor by enacting a statute permitting a court to impose a less than the statutorily-prescribed mandatory sentence for drug-trafficking only if the prosecutor moved for such a reduced sentence on the basis of the defendant‘s cooperation with the prosecutor. Brugman, 339 S.E.2d at 250-252.
The Supreme Court of Georgia followed the reasoning of the LeCompte court and implied that, while the disputed statute was violative of the separation of powers doctrine on its face, it could and would be interpreted to give the judiciary the independent power to pass reduced sentences without the consent of the prosecutor. Brugman, 339 S.E.2d at 251-252. “Such a construction of the statute assures that the power to impose sentence within the range prescribed by the legislature ... remains in the judiciary.” Id. at 251.
Finally, in State v. Jones, 142 Ariz. 302, 689 P.2d 561 (App. 1984), the defendant was convicted of drunken driving. The Arizona statute mandated a jail sentence for such a conviction, but provided that a court could sentence a defendant to an alternative, non-jail sentence “... if the judge, based on the
While it is within the sole power of the legislature to determine what acts constitute crime and to prescribe punishment for those acts, State v. McClarity, 27 Ariz. App. 571, 557 P.2d 170 (1976) it cannot give the prosecuting attorney the authority, after a conviction, to decide what the punishment shall be. That is a judicial function. A.R.S. § 28-692.01(C) [The disputed statute] was enacted to mitigate the punishment prescribed by § 28-692.01(B) and the decision to mitigate a sentence properly belongs to the judge and not to the prosecutor. [Id., 689 P.2d at 564.]
Accord, State v. Prentiss, 163 Ariz. 81, 786 P.2d 932 (Ariz. 1989).
Other cases have upheld similar statutes. In People v. Eason, 40 N.Y.2d 297, 386 N.Y.S.2d 673, 353 N.E.2d 587 (N.Y. 1976), the defendant was convicted of distributing heroin. A statute provided that a court could sentence a person to a period of probation, if the defendant gave material assistance in the underlying investigation and if the prosecutor so recommended. At sentencing, the defendant insisted that he had cooperated with the prosecutor and that the prosecutor should therefore have recommended him for probation. The sentencing court rejected this contention and instead sentenced defendant to a minimum mandatory period of imprisonment. On appeal, the defendant contended that the sentencing statute violated the doctrine of separation of powers because it unconstitutionally vested the executive branch of government with sentencing discretion properly reserved to the judiciary. The Court of Appeals rejected this argument, stating:
We cannot agree. In Matter of McDonald v. Sobel, 272 App.Div. 455, 72 N.Y.S.2d 4, aff‘d., 297 N.Y. 679, 77 N.E.2d 3 an analogous statute was considered. There the District Attorney refused to consent to and recommend acceptance of a plea of guilty to a lesser offense, a prerequisite to acceptance
thereof (Code Crim.Pro., § 342-a). Nevertheless, the Trial Judge received the plea to a lesser offense than that set forth in the indictment. Sustaining the requirement and mandate in that section, it was held on appeal that absent submission of the required statement and consent by the District Attorney, the County Court was powerless to accept the plea and impose sentence. Little difference is to be noted between that determination and the case at bar. So long as a statute does not wrest from courts the final discretion to impose sentence, it does not infringe upon the constitutional division of responsibilities. The statute here, and that considered in McDonald, serve only to limit the sentencing options available to the judiciary as do, of course, all statutes prescribing the limits of the penal sanction to be imposed for any given offense (see Penal Law, art. 60). [Id., 386 N.Y.S.2d at 675-676, 353 N.E.2d at 588-589, emphasis added.]
While Eason did not involve a plea or post-conviction agreement, it was based upon a statutory requirement of a prosecutor‘s post-conviction recommendation before the court could order a less severe sentencing alternative. In that respect, the statute in dispute in Eason resembles
In State v. Benitez, 395 So.2d 514 (Fla. 1981), the defendants were charged with the distribution of cocaine. The Florida statute provided severe mandatory minimum term sentences. However, it also provided an “escape valve” if a defendant cooperated with the prosecutor and if the prosecutor moved for less than the mandatory sentence, based on that cooperation. Rejecting the defendants’ constitutional attack, the Supreme Court of Florida stated:
Appellees’ [defendants‘] second argument premised on the constitutional separation of powers is that subsection (3) [of the disputed statute] usurps the sentencing function from the judiciary and assigns it to the executive branch, since the benefits of subsection (3) are triggered by the initiative of the state attorney. Under the statute, the ultimate decision on sentencing resides with the judge who must rule on the motion for reduction or suspension of sentence. “So long as a statute does not wrest from courts the final discretion to impose sentence, it does not infringe upon the constitutional division of responsibilities.” People v. Eason, 40 N.Y.2d 297, 301, 386 N.Y.S.2d 673, 676, 353 N.E.2d 587, 589 (1976) (emphasis in original) (rejecting a separation of powers attack on a similar provision in New York‘s drug laws). [Id., 395 So.2d at 519.]
Appellant also argues that the provisions of the Alabama Code addressing drug trafficking are unconstitutional because the trial judge cannot grant probation or reduce sentence unless the prosecuting attorney so moves the court, § 20-2-81(b). This statute‘s constitutionality has been established by this court in the recent case of Wheatt v. State, 410 So.2d 479 (Ala.Cr.App. 1982). The Wheatt case relied on the case of State v. Benitez, 395 So.2d 514 (Fla. 1981), which addressed this question relative to a similar Florida drug trafficking statute.
The Benitez case concludes that even when the reduction or suspension of sentence is triggered by the initiative of the State‘s attorney,
‘as long as a statute does not take from the courts the final discretion to impose sentence, it does not infringe upon the constitutional division of responsibilities.’ [Id., 418 So.2d at 207.]
The disputed Alabama statute in Eldridge is comparable to
In People v. District Court of Second Judicial Dist., 106 Colo. 89, 101 P.2d 26 (1940), the defendant was found guilty of a crime for which apparently there was a mandatory sentence. However, under a Colorado statute, the sentencing court had the power to suspend any such sentence if the prosecutor agreed that such suspension would be in the interest of justice. The sentencing judge wanted to suspend the sentence but the prosecutor disapproved. The judge suspended the sentence anyway, and the prosecutor appealed.
The Supreme Court of Colorado reversed and held that there was nothing “unreasonable” about the prosecutor‘s statutorily-derived power to trigger a court‘s ability to impose a less than mandatory sentence. Id., 101 P.2d at 28-29. Accord, People v. Sanders, 185 Colo. 153, 522 P.2d 735, 736-737 (1974) (where the
In U.S. v. Huerta, 878 F.2d 89, 91-93 (2d Cir.1989), cert. den., ___ U.S. ___, 110 S.Ct. 845, 107 L.Ed.2d 839 (1990), a federal court rejected a separation of powers attack on
Thus, there is substantial out-of-state and federal authority supporting the legislative empowerment of a prosecutor to trigger a court‘s ability to vary from mandatory sentencing requirements.
Our consideration of this issue is necessarily impacted by the recent decision of our Supreme Court in State v. Warren, 115 N.J. 433, 558 A.2d 1312 (1989), which comments extensively on the boundaries of prosecutorial power and judicial sentencing discretion where plea bargains are concerned. In Warren the defendant entered into a plea agreement with the prosecutor, pleaded guilty to various charges, and was sentenced in accordance with the agreement. The defendant asserted that the plea
In arriving at its decision, the Court first observed that generally plea agreements encompass some sentence limitation that must be observed by the court. Otherwise, either the defendant or the State can withdraw from the agreement and force the other party to go to trial. However, it determined that it was not permissible for a sentencing court to accept a plea bargain that includes a set, negotiated sentence which enables the State to withdraw from the guilty plea and requires the defendant to go to trial if the negotiated sentence is not imposed. The Court held that the parties to a plea agreement can only agree to a sentence that the prosecutor will recommend to the court and are not empowered to negotiate a sentence which is binding on the court.
In arriving at that conclusion, the Court iterated the need to protect judicial sentencing discretion and eschewed any attempt to allow prosecutorial inroads on that discretion.
The court in discharging its sentencing responsibilities may not simply accept the terms of a plea agreement. [Citations omitted.]
The determination of a criminal sentence is always and solely committed to the discretion of the trial court to be exercised within the standards prescribed by the Code of Criminal Justice. [Citation omitted.] That discretion should not by implication be encumbered by augmenting the prosecutor‘s influence on the sentencing determination. Such limitations on prosecutorial influence over sentencing have long been understood and accepted in defining the prosecutorial role in criminal sentencing, and we entertain no doubt that this understanding is reflected in the current Code. [Id. at 447-448, 558 A.2d 1312.]
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... [w]e cannot overstress the significance of the judicial responsibility in imposing sentence. `[P]ronouncement of judgment of sentence is among the most solemn and serious responsibilities of a trial court. * * * Our new Code reflects a delicate balance between discretion and fixed sentencing. An independent judiciary is its fulcrum.’ [Citation omitted.] A court‘s neutrality can be threatened if a prosecutor can exert pressure to impose the recommended or negotiated sentence by threatening to withdraw if the sentence imposed is more lenient. The balance `between discretion and fixed sentencing’ can readily be
upset if the prosecutor were allowed to impinge in this way on the court‘s independent discretion. Moreover, such prosecutorial influence would surely be inimical to the important goals of sentencing uniformity. [Citation omitted.] Individual prosecutors with distinctive perceptions of the gravity of particular offenses and offenders, and responsive to a very different constituency from that of the judiciary, would add undue variability, inevitable inconsistency, and greater disparity to the sentencing process. Hence, separate prosecutorial discretion cannot be superimposed on the court‘s sentencing discretion. [Citations omitted.] [Id. at 449, 558 A.2d 1312, emphasis added.]
We are aware that defendant did not advance any constitutional arguments before the trial court directed to
In the face of defendant‘s contentions, the State readily concedes that the separation of powers doctrine is applicable and should be maintained in spite of any statutory language indicating otherwise. With respect to both
Given the general presumption of the constitutionality of statutes, we keep in mind the principle that if the challenged statutes reasonably can be construed in a manner which would uphold their constitutional validity we are bound to do so. Right to Choose v. Byrne, 91 N.J. 287, 311, 450 A.2d 925 (1982); State v. Negron, 118 N.J. Super. 320, 323, 287 A.2d 461 (App. Div. 1972). See also 2A Sutherland Stat. Const. § 45.11 and § 45.12 (4th Ed). Further, we are guided by the mandate that
the legislature acted with existing constitutional law in mind and intended the act to function in a constitutional manner.... The further presumption is that a statute will not be declared inoperative and unenforceable unless it is plainly in contravention of a constitutional mandate or prohibition. State v. Profaci, 56 N.J. 346, 349, 266 A.2d 579 (1970).
Thus, the issue becomes whether
Consistent with such an interpretation and the State‘s position on this appeal, we also conclude that the court retains the power to inquire into the reasons and other details of any agreement struck or rejected between defendant and the prosecutor, both pre-conviction and post-conviction. Obviously, a court may review for the patent and gross abuse of the exercise of the prosecutor‘s discretion in the first instance if convinced that the interests of justice will not be served by accepting it in that particular case. Cf. State v. DeMarco, 107 N.J. 562, 569, 527 A.2d 417 (1987). Such a concept is not novel, for the courts have always reserved the right to do so, as in the case where a prosecutor improperly refuses to approve of defendant‘s entry into a pretrial diversionary program. See State v. Leonardis, 71 N.J. 85, 363 A.2d 321 (1976), on reh‘g, 73 N.J. 360, 375 A.2d 607 and its progeny. By so interpreting those statutes the defendant‘s separation of powers argument fails. State v. Le Compte, supra, 406 So.2d 1300, 1307-1308 (La. 1981), reh. den., 446 So.2d 314 (La. 1984). Cf. State v. Olson, 325 N.W.2d 13, 19 (Minn. 1982).
Turning our attention to the State‘s cross-appeal, suffice it to say that we agree that the trial judge should not have merged the convictions for possession and possession with the intent to distribute, with the distribution convictions in the factual circumstances presented in this case. State v. Davis, 68 N.J. 69, 79-80, 342 A.2d 841 (1975). Moreover, we agree that the trial judge erred in imposing the mandatory laboratory fee on only two of the convictions, contrary to the provisions of
Accordingly, we reverse the merger order and remand for resentencing on those offenses and direct compliance with