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State v. Sepulveda

Decided: January 13, 1992.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
NOEL SEPULVEDA, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Camden County.

Bilder, Stern and Keefe.

Keefe

The opinion of the court was delivered by

KEEFE, J.A.D.

Defendant Noel Sepulveda pled guilty to an accusation which as amended charged him with distribution of cocaine within 1,000 feet of a school. N.J.S.A. 2C:35-7. The plea was given pursuant to a plea agreement which provided that the State would waive the mandatory period of parole ineligibility unless the defendant was found guilty of a violation of probation or failed to appear for sentencing. N.J.S.A. 2C:35-12.

Pursuant to the plea agreement, defendant was sentenced to four years probation with 364 days' incarceration in the county jail and 300 hours of community service. The court also imposed a $1,000 DEDR penalty, a $50 lab fee, a $30 VCCB penalty and a six month loss of New Jersey driving privileges. Defendant served his county jail time and began his probationary term. Approximately seven months later, a petition for violation of probation was filed. At the violation of probation hearing, defendant admitted to violating the conditions of his probation by failing to report to his probation officer, failing to obtain a drug and alcohol evaluation within 45 days of his release from jail, failing to perform any community service, and failing to pay the VCCB and DEDR penalties. Because the waiver permitted by N.J.S.A. 2C:35-12 was given in connection

with the "initial plea only," the State argued that the Judge was bound to impose a sentence that included a three year period of parole ineligibility.

The Judge, referring to defendant's lack of prior record, stated that he could not find any reason to justify the sentence he imposed considering the mitigating and aggravating factors and the sentencing structure but, nonetheless, imposed a five year sentence with a three year period of parole ineligibility "solely because the statute commands it." The penalties and fines previously imposed were not altered.

Defendant appeals and raises the following issues:

POINT I N.J.S.A. 2C:35-12, WHICH PREVENTS THE JUDGE FROM AMELIORATING A MANDATORY SENTENCE WITHOUT THE PROSECUTOR'S CONSENT, VIOLATES THE DOCTRINE OF SEPARATION OF POWERS AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW. (U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, PAR. 1; ART III, PAR. 1). (Not Raised Below).

A. N.J.S.A. 2C:35-12 Is Unconstitutional.

B. N.J.S.A. 2C:35-12 Cannot Be Utilized To Deprive The Court Of Its Obligation Pursuant To N.J.S.A. 2C:45-3a(4) To Determine Whether The Defendant Has "Inexcusably Failed To Comply With A Substantial Requirement" Of Probation And Whether That Violation Should Result In The Revocation Of Probation.

C. N.J.S.A. 2C:35-12 Cannot Be Utilized To Circumvent 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). (Not Raised Below).

POINT II THE COURT ERRED IN IMPOSING A FIVE YEAR SENTENCE, WHICH IS NOT MANDATORY PURSUANT TO N.J.S.A. 2C:35-7, WAS NOT REQUESTED BY THE PROSECUTOR, AND AS RECOGNIZED BY THE COURT IS NOT JUSTIFIED BY WEIGHING THE ...


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