The opinion of the court was delivered by: Fast
This is a restatement of the reasons given upon sentencing a defendant to a period of parole ineligibility that was longer than that recommended by the prosecutor in a plea agreement. Defendant took issue with the court's authority to do that; the prosecutor took no position on the issue.
The issue presented in this matter is whether the court can, sua sponte, enhance the sentence of a defendant for the violation of a condition attached by the court to the release of defendant after defendant entered into a plea of guilty. At the time of the plea, defendant accepted the condition and thereafter violated the condition by having failed to appear on the scheduled sentencing date. A bench warrant was issued, and when defendant was brought before the court for the sentencing, I held that the enhancement was proper and did enhance the sentence. Although similar issues have been reported, there is no reported opinion relating to either 1) the condition having been imposed by the court itself, or 2) the sentence being enhanced on the court's own initiative.
Defendant pleaded guilty, accepting an offer by the prosecutor, to charges of 1) possession of a controlled dangerous substance with intent to distribute it within 1,000 feet of a school (N.J.S.A. 2C:35-7), a third degree crime, 2) aggravated assault (N.J.S.A. 2C:12-1b(5)(a)), a fourth degree crime, and 3) resisting arrest (N.J.S.A. 2C:29-2), a fourth degree crime. The prosecutor's recommendation to the court was that the sentence not exceed four years, with a twenty month parole ineligibility. Other counts were recommended for dismissal upon sentencing, and the appropriate assessments and penalties were also to be included in the sentence and are not in issue.
After the plea had been taken, on March 7, 1996, defense counsel stated:
"Your honor, we would ask that you give us as long a sentencing date as is possible. Mr. Darnell Cooper has a young wife and a small child and he would like as much time to prepare them, they're going to lose their apartment; he has to make arrangements for his wife and daughter to move elsewhere. He's going to try to get as much money together for them as he possibly can before he goes. So the longest date that would be acceptable to them [sic] was Mr. Cooper's request. And I would also note that Mr. Cooper has always been here, never missed a court date. When he was sick, he always called in. He has always tried to cooperate with the court."
A sentencing date seven weeks thereafter was given, long after the normal period, pursuant to the request.
I thereupon advised the defendant that:
"Mr. Cooper, I want to point out one thing to you. In effect, I am doing you and your family a favor by giving you such a lengthy date for sentencing. Accordingly, because I am not exactly going over board, but doing that favor, I expect that you will be here on April 26."
The defendant responded, "Yes, sir." and I added the condition as follows:
"I want to make it clear to you that if you're not here on April 26 and if I have to issue a bench warrant, which would be because I'm given no good reason for your absence, then I do not feel that I will be bound by this plea bargain. I will be free to impose a different sentence, a lengthier sentence. Do you have any question about that?" [emphasis added]
The defendant answered by saying "No, I don't."
I then added: "I'm saying this because I want to make sure that you understand the importance of being here on April 26." The ...