On certification to the Superior Court, Appellate Division, whose opinion is reported at 250 N.J. Super. 457 (1991).
Handler, Wilentz, Clifford, Pollock, O'Hern, Garibaldi, Stein
The opinion of the Court was delivered by
Defendant entered a plea of guilty to a school zone drug offense for which the Comprehensive Drug Reform Act prescribed a maximum sentence of five years in prison with a parole disqualifier of three years. The parole disqualifier could be waived by the prosecutor. Pursuant to a plea agreement, the prosecutor waived the parole disqualifier and defendant was placed on probation. When defendant later violated the terms of his probation, the prosecutor advised the court that the State would not again waive the period of parole ineligibility. Accordingly, on revoking defendant's probation, the court imposed a three-year period of parole ineligibility.
The central issue in this case, as in State v. Peters, N.J. (1992), also decided today, is whether on resentencing following a violation of probation the court is compelled by the sentencing statute to impose the period of parole ineligibility and whether the prosecutor, having originally waived the parole disqualifier, has the authority at resentencing to demand the imposition of the period of parole ineligibility.
Defendant, Raymond Vasquez, pleaded guilty to possession of cocaine with intent to distribute within 1,000 feet of school property contrary to N.J.S.A. 2C:35-7. The plea agreement provided that the three-year parole ineligibility term fixed by N.J.S.A. 2C:35-7 (section 7) would be waived according to N.J.S.A. 2C:35-12 (section 12) and the court would impose a probationary term. According to the prosecutor at the plea hearing, the agreement provided that "should Mr. Vasquez come back before this court on a violation of probation, the State would not waive at that time the mandatory sentencing provisions of 2C:35-7."
In accordance with the plea agreement, the court sentenced defendant to a five-year probationary term. As conditions of
probation, defendant was to spend 364 days in the county jail and perform 500 hours of community service; he was also assessed a $1,000 Drug Enforcement Demand Reduction penalty, a $50 forensic lab fee, and a $30 Violent Crimes Compensation Board penalty.
Some twenty months later, defendant pleaded guilty to violation of probation by failing to report, failing to complete his community service, and failing to abstain from illegal drug use. Noting that "the period of parole ineligibility was initially waived for the initial plea only," the court imposed a four-year custodial term with three years of parole ineligibility.
Defendant appealed, arguing among other points that section 12, which prevents the court from ameliorating a mandatory sentence without the prosecutor's consent, violates the doctrine of separation of powers and defendant's right to due process of law. Further, defendant contended that the prosecutor could not use the section 12 waiver to circumvent the sentencing guidelines set forth in State v. Baylass, 114 N.J. 169 (1989), and State v. Molina, 114 N.J. 181 (1989).
The Appellate Division agreed with defendant's contention that he was "entitled to be resentenced on the probation violation in accordance with the standards set forth in Baylass and Molina and without any mandatory period of parole ineligibility under N.J.S.A. 2C:35-7." 250 N.J. Super. 457, 461 (App. Div. 1991) (citing State v. Wearing, 249 N.J. Super. 18, 30 (App. Div. 1991) (Cohen, J.A.D., Dissenting)).
The Court granted the State's petition for certification, 126 N.J. 389 (1991), but denied defendant's cross petition. Ibid.
A threshold issue in this case is whether defendant waived his right to appeal by pleading guilty to the school zone offense. The State argues that defendant waived his right to
appeal because he entered a non-conditional guilty plea. The State relies on State v. Robinson, 224 N.J. Super. 495, 498 (App. Div. 1988), in which the court stated that "generally, a guilty plea constitutes a waiver of all issues which were or could have been addressed by the trial Judge before the guilty plea." Had defendant wished to preserve the right to appeal, suggests the State, defendant should have requested the entry of a conditional plea pursuant to Rule 3:9-3(f).
The Rule governing conditional pleas is directed to pretrial issues such as the admissibility of statements, pretrial identifications, and sound recordings, although it extends to purely legal questions as well. Sylvia B. Pressler, Current New Jersey Court Rules, R. A 3:9-3 comment at 555 (1992).
The issue raised by defendant, however, is "addressed to the sentence, not to any question which would otherwise arise before plea or verdict and which is otherwise traditionally waived by a guilty plea." State v. Carey, 230 N.J. Super. 402, 404 n.1 (App. Div. 1989) (question of propriety of second offender sentence not waived by guilty plea). Here, the appeal concerned sentencing after a violation of probation, and the plea did not amount to a waiver of the defendant's right to appeal the issues addressed to that future proceeding. State v. Gonzalez, 254 N.J. Super. 300, 303-04 (App. Div. 1992) (addressing issue on appeal because it relates to sentencing); State v. Santiago, 253 N.J. Super. 197, 200 (App. Div. 1991) (same). Otherwise a defendant would have to raise issues concerning a sentence that had not yet been imposed for a violation that had not yet occurred and might never occur. That procedure would be akin to raising a claim that was not yet ripe for judicial review. See also Gonzalez, supra, 254 N.J. Super. at 304 ("It would be unfair under the circumstances presented to require defendant to forego the benefit of the plea agreement in order to raise this important question. Strict adherence to the requirements of R. 3:9-3(f) 'would result in an inJustice.' R. 1:1-2."); State v. Todd, 238 N.J. Super. 445, 460 (App. Div. 1990)
(despite any deficiency in defendant's failure to press the constitutional arguments before the trial court, court considered the issue).
Accordingly, we hold that defendant did not at the time of pleading guilty to the underlying offense waive the right to appeal the prosecutor's attempt to apply the parole ineligibility term to defendant's sentence on violation of his probation.
Defendant argues that because the decision to waive the period of parole ineligibility involves an exercise of discretion by the prosecutor, and the prosecutor's decision purports to bind the sentencing court's power, N.J.S.A. 2C:35-12 violates the doctrine of separation of powers. N.J. Const. art. III, P 1.
In State v. Lagares, 127 N.J. 20 (1992), the Court considered a separation of powers challenge to N.J.S.A. 2C:43-6f, which requires a court to impose an extended term with a period of parole ineligibility for a repeat drug offender. Although the sentence is mandatory under the statute, whether an extended term is imposed depends upon the prosecutor because section 6f takes effect only on his or her application. As here, defendant asserted that the statute impermissibly delegated judicial sentencing powers to the prosecutor. We reasoned: "As currently written, . . . Section 6f, with its lack of any guidelines and absence of any avenue for effective judicial review, would be unconstitutional." Id. at 31. To cure the constitutional defect, we "interpreted the statute to require that guidelines be adopted to assist prosecutorial decision-making with respect to applications for enhanced sentences under N.J.S.A. 2C:43-6f." Id. at 32. To permit effective review of prosecutorial sentencing ...