On certification to the Superior Court, Appellate Division, whose opinion is reported at 247 N.J. Super. 392 (1991).
For affirmance in part; for reversal in part; for remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Garibaldi, J.
This appeal concerns the constitutionality of N.J.S.A. 2C:43-6f (Section 6f), the repeat-offender-sentencing provision of the Comprehensive Drug Reform Act of 1986, which permits imposition of an extended term of imprisonment with a minimum term on defendants convicted of drug-related offenses who have previously been convicted of similar crimes. Whether an extended term is imposed depends on the prosecutor because Section 6f takes effect only on his or her application. However, the statute sets forth no guidelines to govern the prosecutor's discretion nor does it require the prosecutor to set forth reasons for making a Section 6f motion. Finally, the statute does not provide for judicial review of the prosecutor's decision to seek an enhanced punishment. Once the prosecutor invokes the statute and establishes the existence of a prior conviction, the court's role is limited to determining the term of years within the extended-term range to be imposed.
Defendant also raises, for the first time on appeal, a separate challenge to the constitutionality of N.J.S.A. 2C:35-15, which provides for mandatory Drug Enforcement and Demand Reduction (DEDR) penalties.
A jury convicted defendant, Reynaldo Lagares, of possession of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-10 (count one); possession of a controlled dangerous substance with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) (count two); and distribution of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-5 (count three). The convictions arose from defendant's sale of cocaine on a single occasion to an undercover police officer.
Based on defendant's 1982 convictions for possession of marijuana and possession of marijuana with intent to distribute, the State moved for an extended term of imprisonment pursuant to N.J.S.A. 2C:43-6f. The statute states in pertinent part that
[a] person convicted of manufacturing, distributing, dispensing or possessing with intent to distribute any dangerous substance * * * under N.J.S. 2C:35-5 * * * who has been previously convicted of manufacturing, distributing, dispensing or possessing with intent to distribute a controlled dangerous substance * * * shall upon application of the prosecuting attorney be sentenced by the court to an extended term as authorized by subsection c. of N.J.S. 2C:43-7, notwithstanding that extended terms are ordinarily discretionary with the court. The term of imprisonment shall, except as may be provided in N.J.S. 2C:35-12, include the imposition of a minimum term. The minimum term shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater * * * during which the defendant shall be ineligible for parole.
The court shall not impose an extended term pursuant to this subsection unless the ground therefor has been established at a hearing. At the hearing, which may occur at the time of sentencing, the prosecutor shall establish the ground therefor by a preponderance of the evidence. In making its finding, the court shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing or other court proceedings and shall also consider the presentence report and any other relevant information. [emphasis added.]
At a previous hearing the prosecutor had introduced unrefuted evidence establishing defendant's prior convictions. Therefore, the court granted the State's motion for an extended term.
At the sentencing hearing, the court explained that it had no discretion to impose a term less than an extended term of imprisonment or to forgo ordering a period of parole ineligibility. The court explained:
The defendant must realize that the Court really doesn't have much discretion and that even for this offense, by virtue of the 1982 conviction, he is paying a penalty much -- much greater than most other defendants would have been sentenced to, had the crime of the sale of cocaine occurred prior to the amended [C]omprehensive [D]rug [R]eform [A]ct.
The court merged counts one and two into count three, a third-degree offense. Without enhancement, defendant's convictions would have carried a sentence in the range of three to five years with a presumptive four-year term. A parole ineligibility period would have been within the sentencing court's discretion. However, the statute mandates that the trial court impose an extended term of imprisonment outside the ordinarily applicable range of three to five years. Defendant was sentenced to seven years imprisonment with a three-year parole disqualifier.
In addition to his custodial sentence defendant was assessed a $1,000 DEDR penalty, a $50 forensic lab fee, and a $30 Violent Crime Compensation Board penalty. Finally, the court suspended defendant's driving privileges for six months.
On appeal defendant challenged the sentencing provision by arguing that it violated the separation-of-powers doctrine by vesting in the prosecutor unbridled and unreviewable discretion over sentencing. The Appellate Division found the statute constitutional and affirmed defendant's sentence. 247 N.J. Super. 392, 400, 589 A.2d 630 (1991). The court reasoned that the judiciary retained sentencing authority under the statute because the prosecutor was required to show a prior conviction and because the sentencing court had the ultimate power to select defendant's extended-term sentence from the appropriate range. Ibid. The Appellate Division also rejected defendant's equal-protection and due-process arguments. Id. at 401-02, 589 A.2d 630.
Finally, the Appellate Division summarily rejected defendant's argument that N.J.S.A. 2C:35-15, which imposes mandatory DEDR penalties, is unconstitutional. Id. at 402-03, 589 A.2d 630.
We granted certification, 126 N.J. 337, 598 A.2d 894 (1991), and now reverse so much of the Appellate Division judgment as affirms defendant's extended-term sentence but affirm in all other respects.
The New Jersey Constitution provides:
The powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution. [ N.J. Const. art. III, para. 1.]
The separation-of-powers doctrine was designed to "maintain the balance between the three branches of government, preserve their respective independence and integrity, and prevent the concentration of unchecked power in the hands of any one branch." David v. Vesta Co., 45 N.J. 301, 326, 212 A.2d 345 (1965) (footnote omitted). Nevertheless, we have long recognized that inflexible classification of the branches' duties and powers is neither possible nor desirable. See Worthington v. Fauver, 88 N.J. 183, 206, 440 A.2d 1128 (1982); Vesta, supra, 45 N.J. at 324, 212 A.2d 345. A "strict interpretation of the principle, rigidly classifying all governmental action as legislative, executive, or judicial was never intended by * * * the drafters of our State Constitution * * *." 45 N.J. at 323-24, 212 A.2d 345. Consequently, the doctrine calls for a "'dispersal of decisional responsibility in the exercise of each power, as distinguished from a separation of powers * * *.'" State v. Leonardis, 73 N.J. 360, 371, 375 A.2d 607 (1977) (Leonardis II) (quoting John J. Gibbons, The Interdependence of Legitimacy: An Introduction to the Meaning of Separation of Powers, 5 Seton Hall L.Rev. 435, 436 (1974)).
With that flexibility in mind, we have concluded that the separation of powers "certainly never did create[ ] utterly exclusive spheres of competence. The compartmentalization of governmental powers among the executive, legislative and judicial
branches has never been watertight." In re Salaries for Probation Officers, 58 N.J. 422, 425, 278 A.2d 417 (1971); see also Gilbert v. Gladden, 87 N.J. 275, 281 n. 3, 432 A.2d 1351 (1981) (separation of powers does not "require an absolute division of powers among the three branches of government"). "On the contrary, the doctrine necessarily assumes the branches will coordinate to the end that government will fulfill its mission." Brown v. Heymann, 62 N.J. 1, 11, 297 A.2d 572 (1972). The doctrine "denotes not only independence but also interdependence among the branches of government." Knight v. City of Margate, 8 ...