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State v. Kirk

July 10, 1996

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
OSCAR LEE KIRK, DEFENDANT-RESPONDENT.



On certification to the Superior Court, Appellate Division.

The opinion of the Court was delivered by Coleman, J. Justices Handler, Pollock, O'hern, Garibaldi and Stein join in Justice COLEMAN's opinion. Chief Justice Wilentz did not participate.

The opinion of the court was delivered by: Coleman

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

STATE OF NEW JERSEY V. OSCAR LEE KIRK (A-130-95)

Argued March 26, 1996 -- Decided July 10, 1996

COLEMAN, J., writing for a unanimous court.

The issue before the Court is whether the trial court properly exercised its discretion in finding that a prosecutor did not act arbitrarily in declining to waive imposition of an extended term sentence under the guidelines promulgated pursuant to State v. Lagares.

N.J.S.A. 2C:43-6f (section 6f) is the mandatory extended term statute for repeat drug offenders. Under section 6f, one who has been previously convicted of manufacturing, distributing, dispensing or possessing with intent to distribute a controlled dangerous substance may, on application of the prosecutor, be sentenced by the court to an extended term. Conviction in another state of an offense that is substantially equivalent to an offense covered by this statute satisfies the definition of prior conviction.

State v. Lagares addressed the constitutionality of section 6f. Section 6f was considered constitutionally infirm because it vested unfair discretion in the prosecutor in violation of the separation of powers doctrine. To cure that constitutional defect, the Court interpreted the statute to require that guidelines be adopted to assist prosecutorial decision-making with respect to applications for enhanced sentences. In order to provide for effective judicial review, Lagares requires that prosecutors state on the record their reasons for seeking an enhanced sentence. Moreover, pursuant to Lagares, an extended term may be denied or vacated where a defendant has established that the prosecutor's decision to seek the enhanced sentence was an arbitrary and capricious exercise of prosecutorial discretion.

On April 20, 1992, in response to the holding in Lagares, the Attorney General issued statewide guidelines governing the State's decision to apply for enhanced sentencing under section 6f. The guidelines require prosecutors to: establish the existence of the defendant's prior drug offense; provide written notification to both the court and the defendant of the State's intention to apply for an extended term; and state on the record their reasons for refusing to waive an extended term. In addition, the guidelines outline the factors on which a prosecutor may rely as a basis for waiving an enhanced sentence.

Oscar Lee Kirk and Linette Barber were travelling with Barber's two children on Route 80 when their car was stopped by a state trooper because Kirk was driving erratically. A consent search of the car revealed three wrapped packages containing a total of six and one-half pounds of cocaine, and a locked briefcase containing $8,000 in cash. In August 1990, a jury convicted Kirk of third-degree possession of cocaine and first-degree possession of six and one-half pounds of cocaine with the intent to distribute. The State's motion for an extended term pursuant to section 6f was granted. Kirk was sentenced to an extended term of fifty years of imprisonment with twenty-five years of parole ineligibility.

On appeal, the Appellate Division affirmed Kirk's conviction but remanded for reconsideration of the sentence because Kirk had been sentenced before the promulgation of the guidelines required by the Court in Lagares. On remand, the sentencing court reimposed the identical sentence and Kirk again appealed. The Appellate Division reversed, finding that the trial court abused its discretion by not overruling the prosecutor's refusal to waive the imposition of an enhanced sentence. The Court's reversal was based on the fact that Kirk did not serve a prison term for either of his two prior New York drug offenses and that he was passing through New Jersey on an interstate highway at the time of the present offense.

The Supreme Court granted the State's petition for certification.

HELD:

Oscar Lee Kirk failed to establish by clear and convincing evidence that he was entitled to a waiver of an extended term sentence; therefore, the trial court properly exercised its discretion in finding that the prosecutor did not act arbitrarily in declining to waive imposition of an extended term sentence.

1. Kirk's 1988 conviction in New York of third-degree attempted sale of cocaine to an undercover police officer satisfies the section 6f requirement of a prior drug conviction. Therefore, Kirk qualifies for an extended term sentence. Moreover, the prosecutor sufficiently explained his reasoning on the record and cited ample evidence to support his interpretation of the guidelines. Thus, Kirk failed to meet the heavy burden that a defendant must bear to prove that the State's decision to deny leniency was arbitrary and capricious. (pp. 7-10)

2. The Appellate Division erred in considering the lack of prior imprisonment as a basis for concluding that the trial court abused its discretion in failing to overrule the prosecutor's refusal to waive the enhanced sentence. The language of section 6f refers only to previous convictions and makes no exceptions for a conviction that does not result in a prison term. (pp. 10-11)

3. The Attorney General Guidelines cure the constitutional infirmity found in Lagares in respect of section 6f. Those guidelines vest the judiciary with the authority to make the ultimate determination of the sentence to be imposed. The legislative objective of section 6f is to impose lengthy prison term on repeat drug offenders. Widening the latitude of prosecutorial waiver discretion by incorporation an "interest of Justice" standard, as urged by Kirk, would contravene that legislative goal. Nonetheless, the Attorney General Guidelines to some extent have incorporated some of the spirit of the "interests of Justice" standard. The "catch-all" provision authorizes prosecutors to waive enhanced sentencing based on the existence of compelling extraordinary circumstances. That provision operates in much the same way as the "interests of Justice" standard in that it provides prosecutors and reviewing courts with a basis for safeguarding the defendant from an imposition of an extended term where principles of Justice would not be served. Ultimately, the prosecutor's application of the guidelines is reviewed by the sentencing court under an arbitrary and capricious standard. That judicial review protects defendants against prosecutorial abuse of discretion in the application of enhanced sentencing. It also preserves the delicate balance of powers mandated by the New Jersey Constitution, thereby remedying the constitutional defect inherent in section 6f. (pp. 11-15)

4. Kirk's sentence violates some basic sentencing guidelines under the Code. Although the trial court exercised its discretion and imposed the presumptive base term of fifty years, it imposed the maximum term of parole ineligibility as though a life term had been imposed. Ordinarily, a severe parole ineligibility term should be imposed in conjunction with base terms that exceed the presumptive term. The trial court offered no explanation to justify the absence of any balance between the presumptive base term and the maximum twenty-five year period of parole ineligibility. Therefore, a remand is required to properly determine the term of parole ineligibility. (pp. 15-21)

Judgment of the Appellate Division is REVERSED and the case is REMANDED to the Law Division to redetermine the term of parole ineligibility in accordance with this opinion.

JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN join in JUSTICE COLEMAN's opinion. CHIEF JUSTICE WILENTZ did not participate.

The opinion of the Court was delivered by COLEMAN, J.

The critical issue raised in this appeal is whether the trial court properly exercised its discretion in finding that a prosecutor did not act arbitrarily in declining to waive imposition of an extended term sentence under the guidelines promulgated pursuant to State v. Lagares, 127 N.J. 20, 601 A.2d 698 (1992). The Appellate Division, hearing the case on its Excessive Sentencing Oral Argument calendar, found that "the trial court abused its discretion in not overruling ...


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