State v. WearingState v. Wearing
Defendant was indicted on eleven counts for various offenses, including possession with intent to distribute marijuana within 1,000 feet of school property, contrary to
This is also a negotiated plea agreement, Judge. In return for the defendant‘s plea of guilty to Count 7 of the indictment, charging him with possession of CDS with intent to distribute within a thousand feet from a school, that CDS being marijuana, the State has agreed at the time of sentencing to recommend 364 days in the county jail as a condition of five years probation. The State then is waiving its right to seek a mandatory minimum term of three years without parole. But the State is only doing this with regard to the initial sentencing. It‘s reserving its right that if the defendant comes back on a violation of probation, it could at that time request the mandatory minimum that it could have sought originally.... The defendant is to waive his right to appeal.
In explaining his understanding of the agreement, defense counsel stated that “I‘ve also explained to Mr. Wearing the circumstances involving any violation of probation that might occur, ... which relates to the possibility of a sentence being imposed of five years, three years without parole should he violate his probation.” Defendant himself indicated his understanding that if he violated probation “the Court would and could impose the same sentence that it could have imposed here today with reference to the three years of ineligibility for parole.”
At sentencing on June 3, 1988, the prosecutor again explained the plea recommendation and further stated:
Judge, just to clear the record, the State is waiving its mandatory three-year minimum parole ineligibility just with regards to sentencing, but if the defendant does come back on a violation of probation, the State has not waived that mandatory minimum period of parole ineligibility.
Before imposing sentence, the judge noted “the recommendation of Probation that the defendant is not amenable to probation because of the nature of the offense” and that “... since this was a plea agreement, I‘ll make no findings with reference to aggravating or mitigating factors.” Addressing the defendant, the judge said:
Mr. Wearing, I‘m going to give you the benefit of the doubt in this matter, because as you understand, if you violate any of the terms and conditions of probation, and are brought back here before the Court, the Court can at that time impose the same sentence it could have imposed here today, five years in New Jersey State‘s prison, three years without eligibility for the parole.
In completing his final remarks, the judge said:
But if you violate and come back before me, and are found guilty, you will at that time receive the sentence of five years in New Jersey State‘s Prison, three years without eligibility for parole.
Defendant again acknowledged that he understood.
On Friday, January 26, 1990, defendant, in essence, acknowledged that he had violated the conditions of his probation, although he had an explanation and asked for leniency. At the outset of the proceedings, the defendant himself again acknowledged that the court had advised him that if he violated the conditions he could be sent to prison for five years with three years before parole eligibility.
At the hearing, the question arose as to the required ineligibility term. The quantity of marijuana involved was never developed at the time of plea, nor does the presentence report fully develop the subject of quantity.1 It is clear, however, that defendant pled guilty to third degree possession of marijuana with intent to distribute within 1,000 feet of a school, in violation of
The defense counsel did not develop the issue because his position was that
In imposing sentence on the violation, the judge stated:
I‘m going to impose that sentence of five years because I find that you have violated the terms and conditions of probation. They are serious violations. There are some difficulties with reference to the sentence in this matter but I am going to order that you will serve two years of this sentence without eligibility for parole. I‘ll terminate all of the terms and conditions of probation.
On this appeal defendant argues:
POINT I
A.
N.J.S.A. 2C:35-12 IS UNCONSTITUTIONAL.B.
N.J.S.A. 2C:35-12 CANNOT BE UTILIZED TO CIRCUMVENT THE SENTENCING GUIDELINES SET FORTH IN STATE V. BAYLASS, 114 N.J. 164 [169, 553 A.2d 326] (1989) AND STATE V. MOLINA, 114 N.J. 181 [553 A.2d 332] (1989).
POINT II THE IMPOSITION OF THE MAXIMUM SENTENCE AND A TWO YEAR PERIOD OF PAROLE INELIGIBILITY IS EXCESSIVE AND VIOLATIVE OF THE SENTENCING GUIDELINES SET FORTH IN STATE V. BAYLASS, 114 N.J. 169 [553 A.2d 326] (1989) AND STATE V. MOLINA, 114 N.J. 181 [553 A.2d 332] (1989).
A. IF THE SENTENCING COURT HAD NO DISCRETION TO NOT IMPOSE PAROLE INELIGIBILITY.
B. IF THE SENTENCING COURT EXERCISED DISCRETION TO IMPOSE PAROLE INELIGIBILITY.
POINT III THE “WITHIN 1,000 FEET OF ANY SCHOOL PROPERTY” PROVISION OF
A. THE “WITHIN 1,000 FEET OF SCHOOL PROPERTY” PROVISION OF
N.J.S.A. 2C:35-7 IS UNCONSTITUTIONALLY VAGUE ON ITS FACE AND AS APPLIED HEREIN.B. THIS COURT SHOULD RENDER
N.J.S.A. 2C:35-7 CONSTITUTIONAL BY LIMITING THE REACH OF THE STATUTE TO OFFENSES THAT OCCUR WITHIN SCHOOLS OR ON SCHOOL PROPERTY WHEN SCHOOL IS IN SESSION AND CHILDREN ARE PRESENT.C. APPLICATION OF
N.J.S.A. 2C:35-7 TO THE CASE AT BAR DENIED DEFENDANT DUE PROCESS OF LAW AND EQUAL PROTECTION OF THE LAW UNDER THE STATE AND FEDERAL CONSTITUTIONS.1. DEFENDANT WAS DENIED HIS RIGHT TO DUE PROCESS OF LAW (
U.S.CONST., AMEND. XIV ANDN.J.CONST. (1947) ART. I, PAR. 1 ).2. DEFENDANT HAS BEEN DENIED HIS RIGHT TO EQUAL PROTECTION OF THE LAW. (
U.S.CONST. AMEND. XIV ANDN.J.CONST. (1947) ART. I, PAR. 1 ).
POINT IV
POINT V THE COURT ERRED IN DIRECTING THAT IF DEFENDANT EVER APPLIED FOR A DRIVER‘S LICENSE, IT WOULD BE SUSPENDED FOR A PERIOD OF SIX MONTHS. (NOT RAISED BELOW).
We summarily reject Points I-A, III, and IV. R. 2:11-3(e)(2). While not addressing the issue, we note that defendant expressly waived his right to appeal at the time of the negotiated
In State v. Ervin, 241 N.J. Super. 458, 575 A.2d 491 (App.Div. 1989), certif. denied 121 N.J. 634, 583 A.2d 328 (1990), we held that, generally, a trial judge is not bound by the prosecutor‘s initial sentence recommendation after a defendant is placed on probation and violates the conditions thereof, at least when the defendant is told at the time of plea and sentencing of the fact that he can be resentenced subject to the statutory maximum after any violation of probation. In this case, defendant was resentenced to the five year maximum sentence, a specific term challenged by defendant independent of any requirement with respect to the mandatory ineligibility term. While the ineligibility term actually controls the “real time” defendant must serve, see State v. Richardson, 208 N.J. Super. 399, 413-414, 506 A.2d 43 (App.Div. 1986), certif. denied 105 N.J. 552, 523 A.2d 188 (1986); see also Richardson v. Nickolopoulos, 110 N.J. 241, 250, 540 A.2d 1246 (1988), we must consider the propriety of the
In this case it was crystal clear that the prosecutor‘s recommendation was for purposes of initial sentencing only, and the agreement made clear that if defendant violated the conditions of his probation he would have to receive the mandatory sentence. Cf. State v. Todd, supra. We do not hold that Todd,
The difficulty in this case, however, is caused by the lack of clarity regarding the duration of the mandatory sentence in the absence of any record establishing the quantity of
Where the violation involves less than one ounce of marijuana, the term of imprisonment shall include the imposition of a minimum term which shall be fixed at, or between, one-third and one-half of the sentence imposed, or one year, whichever is greater, during which defendant shall be ineligible for parole. In all other cases, the term of imprisonment shall include the imposition of a minimum term which shall be fixed at, or between, one-third and one-half of the sentence imposed, or three years, whichever is greater, during which the defendant shall be ineligible for parole.
Nowhere in this record is the quantity of marijuana established or acknowledged, and defendant‘s argument before us is premised on the fact that he possessed less than one ounce. In fact, the prosecutor seems to have acknowledged that at the time of the violation of probation when he appears to have raised the question regarding the length of the mandatory minimum. If defendant possessed with intent to distribute less than one ounce of marijuana, the mandatory minimum term had to be “fixed at, or between, one-third and one-half of the sentence imposed, or one year, whichever is greater,” but if it was greater than one ounce of marijuana, the required ineligibility term had to be fixed at between one-third and one-half of the sentence or three years, whichever is greater.
Irrespective of the required ineligibility term, the trial judge had an obligation to impose a specific sentence, and that is true even if an ineligibility term of three years was required. Here, the trial judge imposed a specific term sentence of five years
On the original sentence the judge stated “[i]f you ever make an application for a driving privilege ... your privilege will be suspended for a period of at least six months.” At the time of the sentencing on the violation of probation, the “six month revocation of driving privileges” was continued, although the suspension was not embodied in the judgment. We note that the period of forfeiture of driving privileges must “commence on the day the sentence is imposed” unless the license was then
Remanded for further proceedings consistent with this opinion.
R.S. COHEN, J.A.D., (concurring and dissenting).
In State v. Todd, 238 N.J. Super. 445, 570 A.2d 20 (App.Div. 1990), we held that
If the retention of the ultimate sentencing judgment is constitutionally necessary, the prosecutor‘s “initial-plea-only” waiver cannot be sanctioned. It leaves the court disposing of a probation violation with no choice but to impose a substantial mandatory minimum term for what might be a minor transgression. The ultimate option of turning down a plea agreement is no longer available.
A sentencing on a violation of probation is very like the sentencings discussed in State v. Yucel Cengiz, 241 N.J. Super. 482, 575 A.2d 504 (App.Div. 1990), and State v. Alvarez, 246 N.J. Super. 137, 586 A.2d 1332 (App.Div. 1991). Whatever precise formula for judicial review may be appropriate, courts cannot simply bow to a prosecutor‘s possibly arbitrary, discriminatory, or disproportionate sentencing decision. Subjecting a defendant, who a prosecutor found suitable for probation after a review of relevant law enforcement concerns, to a mandatory minimum sentence on a minor violation of probation is grotesque. It runs directly against the spirit and letter of State v. Baylass, 114 N.J. 169, 553 A.2d 326 (1989), and State v. Molina, 114 N.J. 181, 553 A.2d 332 (1989).
The grant or withholding of waiver at initial sentencing exhausts any legitimate law enforcement purposes for which the prosecutor is given the
The “initial-plea-only” waiver is a product of the Sword of Damocles school of sentencing, which employs the threat of disproportionate response to minor future missteps as a control tool. It is a school accredited neither by the Criminal Code nor by considerations of proportionality and fundamental fairness. The threat is not legitimated by advising defendant of its menace.
Defendant was given a good break in his original sentence bargain. It is a long way, however, from probation with 364 days’ incarceration to a substantial mandatory term in prison, especially where defendant‘s violation of probation was his failure to report and to pay monetary sanctions, and perform community service. “I told you so” is an insufficient basis for such a disproportionate response.
I would remand for resentencing without any prosecutor-imposed mandatory minimum term. In all other respects I concur with the majority.