On appeal from Superior Court of New Jersey, Law Division, Passaic County.
Long, Baime and Thomas. The opinion of the court was delivered by Baime, J.A.D.
This appeal concerns the constitutionality of N.J.S.A. 2C:35-12, which permits a court to waive a mandatory sentence only upon the approval of the prosecutor. We hold that the Legislature did not intend to circumvent the judiciary's power to protect defendants from arbitrary application of the statute. We interpret the statute as permitting judicial review of the exercise of prosecutorial discretion. So construed, we find no violation of the separation of powers doctrine.
Pursuant to an agreement with the State, defendant entered retraxit pleas of guilty to two counts of possession of heroin with intent to distribute within 1,000 feet of school property (N.J.S.A. 2C:35-7). On the date set for sentencing, defendant moved to withdraw her pleas. The matter was adjourned, but later the Law Division denied defendant's application. Defendant was sentenced to concurrent five year sentences. In accordance with the prosecutor's stipulation under N.J.S.A. 2C:35-12, defendant was ordered to serve two and one-half years without parole eligibility on each count. The remaining counts of two separate indictments were dismissed on motion of the prosecutor.
Defendant appeals, contending that (1) the Law Division abused its discretion by denying her motion to withdraw her pleas of guilty, and (2) N.J.S.A. 2C:35-12 violates the separation of powers doctrine. Although defendant's attack upon the constitutionality of N.J.S.A. 2C:35-12 requires Discussion, we find no merit in her claim that her plea should have been vacated. R. 2:11-3(e)(2).
We need not recount the facts at length. Suffice it to say, the Law Division Judge meticulously adhered to the requirements of R. 3:9-2 in accepting defendant's plea of guilty. At the plea proceedings, defendant candidly acknowledged her guilt of the crimes charged. She was questioned exhaustively concerning her understanding of the terms of the plea agreement. The Law Division Judge accepted defendant's plea only
Against this backdrop, we are entirely satisfied that the court did not abuse its discretion when it denied defendant's motion to withdraw her guilty pleas. A guilty plea voluntarily entered should not generally be vacated in the absence of some plausible showing of a valid defense against the charges. State v. Huntley, 129 N.J. Super. 13, 17, 322 A.2d 177 (App.Div.), certif. denied, 66 N.J. 312, 331 A.2d 12 (1974). This principle has particular efficacy where the plea has been entered pursuant to an agreement with the State. Id. at 18, 322 A.2d 177; see also State v. Thomas, 61 N.J. 314, 322, 294 A.2d 57 (1972); State v. Rodriguez, 179 N.J. Super. 129, 136, 430 A.2d 957 (App.Div.1981). All plea agreement jurisprudence "recognizes the important interest" of finality. State v. Smullen, 118 N.J. 408, 416, 571 A.2d 1305 (1990). Although the significance of that policy diminishes somewhat when the motion to withdraw is made before sentencing, "the measure of what constitutes fair and just reason for withdrawal must be reposed in the sound confidence of the court." Id. at 417, 571 A.2d 1305. Here, we are satisfied that defendant's motion was based upon a whimsical change of mind, not a realistic appraisal of a defense somehow forgotten or missed at the time of the guilty plea. We find no sound basis to disturb the Law Division's exercise of its discretionary powers.
We now turn to defendant's separation of powers argument. In reaching this contention, we acknowledge that a guilty plea generally constitutes a waiver of all issues which were or could have been addressed by the trial Judge before its entry. See State v. Truglia, 97 N.J. 513, 522-24, 480 A.2d 912 (1984); State v. Alevras, 213 N.J. Super. 331, 339-40, 517 A.2d 460 (App.Div.1986); State v. Rosenberg, 160 N.J. Super. 78, 80,
388 A.2d 1298 (App.Div.), certif. denied, 78 N.J. 332, 395 A.2d 201 (1978). Under our rules, a defendant may plead guilty while preserving an issue for appellate review only with the "approval of the court and the consent of the prosecuting attorney." R. 3:9-3(f). See State v. ...