On appeal from the Superior Court, Law Division, Camden County.
Judges King, R.s. Cohen and Stern. The opinion of the court was delivered by Stern, J.A.D. Cohen, R.s., J.A.D., concurring and dissenting.
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 N.J.S.A. 2C:35-7, as embodied in count seven. Pursuant to a negotiated disposition, defendant pled guilty to count seven in exchange for a dismissal of the other counts and a municipal court complaint. The State also recommended that defendant be placed on probation for five years with 364 days to be spent in the Camden County Jail and service of 250 hours of community service. Consistent with the negotiated recommendation, defendant was placed on probation for five years conditioned upon service of 364 days in jail and completion of community service. A Demand Enforcement Reduction Penalty of $1,000, a lab fee of $50 and a V.C.C.B. penalty of $30 were also imposed. Defendant's license was revoked for six months - all consistent with the negotiated disposition. The plea form, signed by defendant and his attorney as well as the prosecutor, provided that the defendant further waived his right to appeal and that the "State is to waive mandatory 3 yr. minimum parole ineligibility
BUT only as to initial sentence. State reserves right to request [mandatory minimum] if defendant incurs VOP." In explaining the plea recommendation, the assistant prosecutor stated to the court:
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 o 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.*fn1 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 N.J.S.A. 2C:35-7, and the quantity of marijuana possessed for that purpose, while not relevant to the degree, is significant with respect to the required ineligibility term. The assistant prosecutor initially took the position that the mandatory ineligibility term would be "two and-a-half years as opposed to three years" (this was not the same assistant prosecutor who handled the plea), but later said that "it is a third degree,
that's clear. So you can give him up to five years."*fn2 The prosecutor then went on to state that "the minimum period of parole ineligibility shall be fixed at between one third and one half of the sentence or a year, whichever is greater. So it would be, in ...