On appeal from Superior Court of New Jersey, Law Division, Hunterdon County.
J.h. Coleman, Bilder and Stern. The opinion of the court was delivered by Coleman, J.h., P.J.A.D.
The novel issue raised in this appeal is whether a split sentence permitted by N.J.S.A. 2C:43-2b(2) involves a "term of imprisonment . . . or other disposition" within the contemplation of N.J.S.A. 2C:35-12. The answer is dispositive of whether a judge has discretion to sentence below the agreed upon "term of imprisonment." We hold that a split sentence constitutes a "term of imprisonment" within contemplation of N.J.S.A. 2C:35-12.
Defendant pleaded guilty to third-degree distribution of cocaine within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-7. As part of the plea agreement, the State agreed, pursuant to N.J.S.A. 2C:35-12, to recommend a probationary sentence conditioned upon defendant serving 364 days in the Hunterdon County Jail. On June 15, 1990, the sentencing judge concluded that based on N.J.S.A. 2C:35-12 he did not "have discretion to deviate from that agreement unless the agreement were to be, of course, rejected in its entirety." He sentenced defendant to two years of probation and as a condition of probation, required defendant to serve 364 days in the county jail. Defendant was assessed a $1,000 Drug Enforcement and Demand Reduction penalty, a $50 laboratory fee and a penalty of $30 payable to the Violent Crimes Compensation Board. The sentence was stayed pending disposition of this appeal.
On this appeal, defendant contends that " N.J.S.A. 2C:35-12 sets out limits upon the discretion of the Court under a negotiated plea" and that "such limits on the Court's discretion are not intended to encompass decisions relating to conditions of probation." Thus defendant argues that the sentencing judge had the discretionary authority "to impose a term of probation without conditions or with less onerous conditions than those recommended by the State." In an amicus brief, The Association of Criminal Defense Lawyers of New Jersey argues that
the judge had discretion under the plea agreement based on N.J.S.A. 2C:35-12, to impose a probationary sentence with less than 364 days of incarceration in the county jail.
N.J.S.A. 2C:35-7 directs that a person found guilty of third-degree distribution of cocaine within 1,000 feet of school property, "shall, except as provided in N.J.S.A. 2C:35-12, be sentenced by the court to a term of imprisonment . . . [and] the term of imprisonment shall include the imposition of a minimum term which shall be fixed at . . . three years. . . ." An exception to the mandatory imprisonment and mandatory minimum term of parole ineligibility is contained in N.J.S.A. 2C:35-12. That statute, in pertinent part, provides:
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 . . . the court upon conviction shall impose the mandatory sentence unless the defendant has pleaded guilty pursuant to a negotiated agreement . . . which provides for a lesser sentence or period of parole ineligibility. The negotiated plea . . . may provide for a specified term of imprisonment within the range of ordinary or extended sentences authorized by law, . . . 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 . . . agreement. [ N.J.S.A. 2C:35-12 (emphasis added).]
The legislative scheme embodied in N.J.S.A. 2C:35-7 places a limitation upon judicial sentencing discretion by requiring that a mandatory minimum sentence be imposed for certain offenses. See State v. Des Marets, 92 N.J. 62, 80, 455 A.2d 1074 (1983). Recognizing the harshness of that statute, the Legislature opted to permit some leeway to the prosecutor to negotiate a lesser sentence. See State v. Todd, 238 N.J. Super. 445, 461, 570 A.2d 20 (App.Div.1990). Hence, N.J.S.A. 2C:35-12 was enacted as part of the Comprehensive Drug Reform Act of 1986 (Drug Reform Act), N.J.S.A. 2C:35-1 et seq. When enacting this statute, the Legislature was aware that under a traditional plea agreement, a sentencing judge is free to sentence up to and below the maximum prescribed by the plea agreement, provided the judge adheres to the proper sentencing guidelines.
See State v. Warren, 115 N.J. 433, 558 A.2d 1312 (1989). Stated another way, a sentencing judge ordinarily has a wide range of sentencing discretion within a plea agreement so long as the sentence does not exceed the maximum provided by the agreement. By inserting the last sentence in N.J.S.A. 2C:35-12, the Legislature wanted to restrict the sentencing judge's discretion. See Official Commentary to the Comprehensive Drug Reform Act, 9 Crim.Just.Q. 149, 161 (1987). The constitutional boundary of the Legislature's limitation upon the judge's discretion has been thoroughly analyzed in State v. Todd, supra, 238 N.J. Super. at 450-462, 570 A.2d 20, and is not implicated in this appeal.
Defendant argues that a probationary sentence with or without a term of incarceration is an "other disposition" under N.J.S.A. 2C:35-12 for which, because of the absence of that phrase in the last sentence of the statute, the judge has discretion to sentence below the negotiated agreement. The Legislature's intended meaning of the words "or other disposition" must be gleaned from the context in which the words were used. See State v. Jones, 197 N.J. Super. 604, 609, 485 A.2d 1063 (App.Div.1984), overruled on other grounds in State v. O'Connor, 105 N.J. 399, 408, 522 A.2d 423 (1987). Here, the words "or other disposition" were used when outlining the permissible content of a negotiated agreement. Such an agreement "may provide for a specified term of imprisonment within the range of ordinary or extended sentences authorized by law, . . . a specified fine, or other disposition." Analyzed in that context, the words ...