On appeal from Superior Court, Law Division, Camden County.
Petrella, D'Annunzio and Keefe. D'annunzio, J.A.D., (dissenting).
Defendant Miguel Angel Oquendo appeals from his conviction of a second violation of probation and the sentence imposed thereon, as well as the failure to allow him "jail credit" based on time spent on "parole" while serving his sentence of probation after the county jail portion of that sentence.
Oquendo had entered a retraxit plea of guilty on January 30, 1988, to possession of cocaine with intent to distribute it within 1,000 feet of a school. Under the plea agreement the State agreed to dismiss three other charges against him and recommend a sentence of four years' probation with 364 days in the Camden County Jail, as well as the usual Drug Enforcement and Demand Reduction penalties. The prosecutor waived the mandatory period of parole ineligibility required by N.J.S.A. 2C:35-7. Oquendo was sentenced in accordance with the plea agreement, with a modification agreed to by the State which allowed Oquendo to serve his jail sentence on weekends from 7:00 p.m. on Fridays to 7:00 p.m. on Sundays.
On September 11, 1989, the Camden County Probation Department charged Oquendo with a violation of probation for failure to comply with certain provisions of his probation. After a hearing, Oquendo was found to have violated the terms of his probation. His sentence was then modified to require that he serve the remainder of his 364 days in jail immediately, thus eliminating the weekend jail provision of the sentence. The State again agreed to waive the mandatory period of parole ineligibility "at this time, and only this time," with a warning that it would not do so again if there was another violation of probation. The assistant county prosecutor took the position that she would seek a prison sentence of five years, three without parole eligibility, for any future violations.
A second violation of probation proceeding was instituted against Oquendo on November 9, 1990. At an April 1, 1991 hearing the Judge found that Oquendo had violated probation by failing to pay the required fines and penalties, not reporting to his probation officer, and failing to obtain drug evaluation. The State announced it withdrew its waiver of the mandatory period of parole ineligibility. The Judge thereafter revoked Oquendo's probation and sentenced him to five years in prison, three without parole eligibility.
On appeal, Oquendo raises the following issues:
I. The plea agreement in this case did not provide that a period of parole ineligibility was mandatory if the defendant violated his probation. (Not raised below).
II. The trial court erred in finding that defendant had inexcusably failed to comply with a substantive condition of probation.
III. The court in imposing parole ineligibility for a violation of probation violated the sentencing guidelines as established by the Supreme Court 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).
IV. N.J.S.A. 2C:35-12, which precludes the court from foregoing a mandatory sentence without the State's consent, violates the doctrine of separation of powers and the defendant's right to due process of law, as well as his Fifth and Sixth Amendment rights. (U.S. Const. amend V, VI, and XIV; N.J. Const. art. I, para. 1; art. III, para. 1). (Not raised below).
A. N.J.S.A. 2C:35-12 violates the doctrine of separation of powers by vesting conclusive sentencing authority in the prosecutor rather than in the court.