On appeal from Superior Court of New Jersey, Law Division, Camden County.
Pressler, Shebell and D'Annunzio. The opinion of the court was delivered by D'Annunzio, J.A.D. Shebell, J.A.D., concurring.
Pursuant to a plea agreement under Camden County Indictment No. 2187-08-89, defendant was convicted of distribution of cocaine within 1,000 feet of school property. N.J.S.A. 2C:35-7. The remaining counts were dismissed. The agreement also included the prosecutor's recommendation that defendant receive a period of parole ineligibility of one year, rather than the three year period mandated in N.J.S.A. 2C:35-7. However, the plea agreement contained an escape clause favorable to the State. If defendant failed to appear on his scheduled sentencing date or was arrested prior to sentencing, then the prosecutor's recommendation limiting parole ineligibility to one year would be withdrawn. Under those circumstances, the mandatory three year parole ineligibility period would apply.
Defendant entered his plea on October 10, 1989, and at that time the judge informed defendant that he would be sentenced
on November 9, 1989. Defendant did not appear on the sentencing date, but turned himself in on January 2, 1990. Defendant explained that he did not appear on November 9 because he wanted to spend the holidays with his family. The prosecutor withdrew the sentence recommendation, and the court sentenced defendant to the presumptive term of four years imprisonment with the mandatory three years of parole ineligibility. In sentencing defendant the court announced that it found no aggravating factors and no mitigating factors.
N.J.S.A. 2C:35-12 (hereafter § 12) 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, 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.
One of the objectives of this leniency provision is explained in the Official Commentary to the Comprehensive Drug Reform Act, Assembly Judiciary Committee (hereinafter referred to as Official Commentary). In its discussion of § 12 it states in part:
A number of the most serious offenses defined in this act require the imposition of mandatory terms of imprisonment and mandatory terms of parole ineligibility. These mandatory minimum terms can only be waived or reduced pursuant to a negotiated plea or post conviction agreement with the prosecuting authority. It is essential in drug cases that prosecutors be able to secure the cooperation (in the form of confidential information and testimony) of certain lower and middle level offenders to be able to identify, apprehend, prosecute and convict the more culpable, higher echelon members in a given drug distribution network. For this reason, one of the key objectives of this section and of the act is to provide persons engaged in illicit drug activities with strong incentives to cooperate with law enforcement to overcome the perceived and substantial risks associated with turning State's evidence and exposing their superiors, suppliers and affiliates. [Emphasis added.]
The prosecutor's authority to avoid a mandatory sentence is a powerful tool in the inducement of guilty pleas and as such is an aid to the disposition of criminal cases. Section 12 also permits the State to dispense leniency in cases where a mandatory three year term without parole would be unduly harsh. There is nothing in the record in the present case to indicate that the State received information or other form of cooperation from defendant in exchange for its sentence recommendation.
At least one panel of this court has upheld § 12's constitutionality. State v. Todd, 238 N.J. Super. 445, 570 A.2d 20 (App.Div.1990). See also State v. Brown, 227 N.J. Super. 429, 547 A.2d 743 (Law Div.1988). But see State v. Cengiz, 241 N.J. Super. 482, 575 A.2d 504 (App.Div.1990) (Shebell, J.A.D., writing for the majority but dissenting in part), certif. denied, 122 N.J. 402, 585 A.2d 400 (1990). However, irrespective of the constitutional issue, no New Jersey court has considered the enforceability of a § 12 pre-conviction agreement conditioned upon a defendant's appearance for sentencing.*fn1 State v. Wilson, 206 N.J. Super. 182, 502 A.2d 46 (App.Div.1985) and State v. Subin, 222 N.J. Super. 227, 536 A.2d 758 (App.Div.), certif. denied, 111 N.J. 580, 546 A.2d 506 (1988), considered such a condition in other than a § 12 context.*fn2
In Wilson defendant pled guilty to second degree burglary in exchange for a sentence recommendation of ten years imprisonment with three years of parole ineligibility. However, if defendant failed to appear for sentencing, then he would be subject to a twenty year extended term with a parole ineligibility of ten years. Defendant failed ...