O'hern, Wilentz, Clifford, Handler, Pollock, Garibaldi, Stein
The opinion of the court was delivered by
Our new Code of Criminal Justice "reflects a delicate balance between discretion and fixed sentencing. An independent judiciary is its fulcrum." State v. Lagares, 127 N.J. 20, 30 (1992) (quoting State v. Warren, 115 N.J. 433, 449 (1989) (citations omitted)). In this case, we must locate the proper balance point between discretionary and fixed sentencing under the hybrid scheme for drug offenses that vests sentencing authority in both courts and prosecutors. The specific issue concerns the validity of a provision in a drug-offense plea agreement that would hold a defendant responsible to appear voluntarily for sentencing as a condition to the prosecutor's waiver of an otherwise mandatory minimum term of imprisonment. We hold that when integrated under the State v. Vasquez, 129 N.J. 189 (1992), guidelines*fn1 for valid law-enforcement purposes, a no-appearance/no-waiver provision is valid and enforceable.
Both defendants, Shaw and Santiago, pled guilty to school-zone violations of N.J.S.A. 2C:35-7. Because of the drugs involved, each was subject to a mandatory minimum term of not less than one-third of the base term to be imposed for the third-degree offenses involved or three years, whichever is greater. Because the dates are relevant to an understanding of
the need for swift and certain punishment in drug cases, we recite the background to each case.
Shaw sold cocaine to an undercover narcotics officer on May 9, 1989. He allegedly employed a Juvenile to complete the drug deal. He was arrested on May 9, 1989. A grand jury indicted him on August 25, 1989, charging him with three counts of violation of N.J.S.A. 2C:35: a section 5 illegal distribution of drugs, a section 7 illegal distribution of drugs within a thousand feet of a school zone, and a section 6 employment of a juvenile in the sale.*fn2 Both of the section 7 and 6 offenses carry mandatory terms. Shaw worked out a negotiated plea with the prosecutor whereby he, Shaw, would plead guilty to the second count of the indictment, distribution within one thousand feet of a school zone. In exchange, the State agreed to drop the first and third counts of the indictment and recommend a five-year sentence with a one-year period of parole ineligibility. However, if defendant failed to appear at sentencing or subsequently was arrested, the prosecutor would refuse to waive the mandatory sentence by making no recommendation concerning sentencing. That clause is known as a no-show recommendation or no-appearance provision. Under the terms of the plea, defendant was admitted to bail on his own recognizance. Defendant appeared in the Law Division on October 10, 1989, and entered a plea of guilty to count two in accordance with the above terms. The court accepted the plea and scheduled the sentencing for November 9th.
Shaw failed to appear on November 9th. He turned himself in on January 2, 1990. He said that he had wished to spend the holidays with his family. At sentencing, on January 8, 1990,
the prosecutor withdrew his waiver of the mandatory sentence by making no recommendation on sentencing. The trial court found no aggravating or mitigating factors and sentenced defendant to the presumptive term for the third-degree offense charged, four years in State Prison, including a three-year period of parole ineligibility. The court imposed other penalties required for drug offenses.
The Appellate Division reversed. State v. Shaw, 253 N.J. Super. 187 (1991). That court ruled that the no-appearance provision placed an additional limitation on the judiciary's already severely-circumscribed authority under N.J.S.A. 2C:35-12 and "unduly interferes with the residuum of judicial sentencing discretion.' Id. at 194. It ruled that the sentencing court could consider a defendant's non-appearance in deciding on the day of sentencing whether "to accept or reject the [plea] agreement.' Id. at 195. It ruled that the trial court had erred in automatically applying the no-appearance provision. Ibid. It thus invoked its own jurisdiction under Rule 2:10-3 and imposed the one-year period of parole ineligibility required under the negotiated plea. Ibid. One member of the Appellate Division panel concurred in the result. He believed that the section 7 waiver provision was unconstitutional. Id. at 196 (Shebell, J.A.D., Concurring). However, he reasoned that if constitutional, "the sentencing Judge is free to impose a sentence more lenient than the plea bargain approved by the State, except here the sentence must comply with the legislatively imposed mandatory sentencing provisions of N.J.S.A. 2C:35-7.' Ibid. We granted the State's petition for certification, 130 N.J. 7 (1992), and denied defendant's cross-petition. 130 N.J. 396 (1992). On April 8, 1992, Shaw was released due to the expiration of his maximum sentence.
Santiago was accused on July 5, 1990, of possession of cocaine with intent to distribute within one thousand feet of a
school zone. He pled guilty to the charge pursuant to a negotiated plea agreement under which the prosecutor agreed to recommend a sentence of 364 days in the county jail as a condition of three years probation. The agreement also provided that defendant be released on his own recognizance, that he report to the bail unit on a weekly basis, and that he appear for sentencing. If he failed to appear, the guilty plea would stand but the prosecutor would withdraw his waiver and make no recommendation on sentencing. The trial court accepted the plea and scheduled sentencing for August 3rd.
Santiago failed to appear on August 3, 1990. He was arrested as a fugitive in September and brought before the court for sentencing on October 19, 1990. Defendant asserted that his home had "burned to the ground' and that he had been required to move to the Bronx and was unable to return to New Jersey on the sentencing date. The court found that explanation unacceptable. Finding two aggravating factors and one mitigating factor, the court sentenced defendant to four years, to be served in State Prison, with a three-year period of parole ineligibility. The court also imposed other penalties required for drug offenses.
The Appellate Division reversed. State v. Santiago, 253 N.J. Super. 197 (1991). The court agreed with the Shaw court that the no-appearance/no-waiver agreement posed an undue burden on judicial sentencing authority. However, the court reasoned that the sentence contemplated by the negotiated plea would be imposed only on "the prosecutor's recommendation, and [the prosecutor's] recommendation did not survive the non-appearance.' Id. at 203. Thus the court remanded, reasoning "that the proper remedy is to permit the parties to renegotiate the plea agreement or for the defendant to withdraw the plea which should not have been initially accepted.' Ibid. Defendant has not been resentenced. We granted the State's petition for certification, 130 N.J. 7 (1992), and denied defendant's cross-petition, 130 N.J. 396 (1992).
We have but recently reviewed the background issues with respect to mandatory minimum sentencing for drug offenses under the Comprehensive Drug Reform Act of 1986, N.J.S.A. 2C:35-1 to -23 (the Act). See State v. Peters, 129 N.J. 210 (1992); Vasquez, supra, 129 N.J. 189; State v. Dillihay, 127 N.J. 42 (1992) Lagares, supra, 127 N.J. 20. We need but restate the general background.
The declaration of policy and legislative findings that accompanied the enactment of N.J.S.A. 2C:35-1.1 announced that "despite the impressive efforts and gains of our law enforcement agencies, the unlawful use, manufacture and distribution of controlled dangerous substances continues to pose a serious and pervasive threat to the health, safety and welfare of the citizens,' N.J.S.A. 2C:35-1.1b, and that "New Jersey continues to experience an unacceptably high rate of drug-related crime, and continues to serve as a conduit for the illegal trafficking of drugs to and from other [states],' ibid., subjecting our citizens to "other violent and non-violent crimes, including murder, assault, robbery, theft, burglary and organized criminal activities.' Ibid. The Legislature sought
to provide for the strict punishment, deterrence and incapacitation of the most culpable and dangerous drug offenders, and to facilitate where feasible the rehabilitation of drug dependent persons so as ultimately to reduce the demand for illegal ...