Before Judges Skillman and Fall.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued by telephone March 3, 2000 - Decided March 20, 2000
On appeal from Superior Court of New Jersey, Law Division, Camden County.
The issue projected by this appeal is the impact of State v. Brimage, 153 N.J. 1 (1998) upon the type of no appearance/no waiver plea agreement approved in State v. Shaw, 131 N.J. 1 (1993).
Defendant was charged in two separate accusations with possession of cocaine within 1,000 feet of school property with the intent to distribute, in violation of N.J.S.A. 2C:35-7. Defendant pled guilty to these charges pursuant to a plea bargain under which the prosecutor agreed to recommend that defendant be sentenced to a pilot inpatient drug treatment program, and if not accepted into the program, receive concurrent five-year terms of imprisonment, with eighteen months of parole ineligibility. The plea agreement also provided that if defendant failed to appear for sentencing or any other mandated court appearance or was charged with a new offense before sentencing, his guilty plea would stand and the prosecutor would be free to recommend any lawful sentence.
Defendant failed to appear either for a mandated appearance in drug court on October 6, 1997, or for sentencing on November 18, 1997. When defendant was sentenced on January 13, 1998, the prosecutor took the position that defendant's failure to appear in court on those two occasions without a valid excuse constituted a violation of the plea agreement, which abrogated the prosecutor's agreement to waive the three-year period of parole ineligibility mandated by N.J.S.A. 2C:35-7. *fn1 The court then sentenced defendant to concurrent four-year terms of imprisonment, with three years of parole ineligibility. The court also imposed the statutorily mandated penalties, fees and suspension of defendant's motor vehicle license.
N.J.S.A. 2C:35-7 mandates the imposition of a three-year period of parole ineligibility for possession of cocaine within 1,000 feet of school property with the intent to distribute. However, N.J.S.A. 2C:35-12 confers authority upon a prosecutor to waive this mandatory period of parole ineligibility pursuant to a negotiated plea agreement.
In State v. Vasquez, 129 N.J. 189, 195-97 (1992) and State v. Peters, 129 N.J. 210, 218 (1992), the Court held that to withstand attack under the separation of powers provision of Article III, paragraph 1, of the New Jersey Constitution, N.J.S.A. 2C:35-12 must be interpreted "to require prosecutors to adopt guidelines to channel the exercise of prosecutorial discretion" and "to state on the record the reasons for their decision to waive or not to waive the parole disqualifier, thereby allowing effective judicial review of the reasons." Peters, supra, 129 N.J. at 218. The Court also held that "[a] defendant who shows clearly and convincingly that the [prosecutor's] exercise of discretion was arbitrary and capricious would be entitled to [judicial] relief." Vasquez, supra, 129 N.J. at 196; see also State v. Lagares, 127 N.J. 20, 26-33 (1992).
In Shaw, supra, 131 N.J. 1, the Court considered the validity of the type of plea agreement involved in this case, under which a prosecutor's waiver of the period of parole ineligibility mandated by N.J.S.A. 2C:35-7 is conditioned upon the defendant voluntarily appearing for sentencing. The Court concluded that such an agreement is valid because it "fosters . . . several law enforcement purposes set forth in the [Comprehensive Drug Reform] Act, including facilitation, where feasible, of the rehabilitation of drug-dependent persons, minimization of pretrial delay, prompt disposition of drug-related criminal charges, and swift imposition of fair and certain punishment." Id. at 15. However, the Court also concluded that "[n]ot every violation of the waiver conditions by an accused defendant will result in automatic imposition of a mandatory sentence." Id. at 16. Instead, the trial court must "consider the explanation for the non-appearance in the context of all the circumstances," and whether in light of those circumstances, "the breach is material to the plea and therefore warrants revocation of the prosecutor's waiver of mandatory sentence." Id. at 17.
Of particular significance to the argument defendant presents in this appeal, the Court also stated: "We do not expect that a requirement that a defendant show up for sentencing be routinely stated as a basis for granting waiver of the otherwise-mandatory minimum sentences." Id. at 15. Consequently, the Court concluded that to be valid, guidelines for the prosecutor's inclusion of no appearance/no waiver provisions in plea bargain offers must be "integrated under the [Vasquez] guidelines." Id. at 3. The Court also noted that "the guidelines do not now incorporate the no-appearance factor in the weighing process," and that "[i]f prosecutors intend to employ [this] factor in the decision-making process, [it] will have to be incorporated in the guidelines." Id. at 18-19.
To comply with Shaw, the Attorney General issued amended guidelines in 1993 to govern the waiver of mandatory terms in drug cases, which added the following provision regarding no appearance/no waiver plea agreements:
A plea agreement may include conditions that the defendant admitted to bail or R.O.R. following entry of a plea of guilty and pending sentencing is responsible to appear voluntarily for bail unit supervision including drug testing, that the defendant not commit any other offense or criminal acts and be re-arrested before sentencing, and that the defendant appear for sentencing as scheduled as a condition of the prosecutor's consent to bail and agreement to waive a mandatory minimum term of imprisonment.
Such a conditional plea offer should not be routinely granted . . ., and the prosecutor must provide reasons for the conditional agreement at the time [of] the initial plea. The prosecutor's decision should reflect consideration of prosecutorial, judicial and correctional resources, including the amount of resources already expended on the particular case, since one objective of such no-appearance agreements is the early disposition of cases. It should consider the feasibility of rehabilitating a drug dependent person. It should also take into consideration the potential that the defendant might become a fugitive or present a threat to himself/ herself or others. In this respect the ...