The opinion of the court was delivered by: LaVECCHIA, J.
ON CERTIFICATION TO Appellate Division, Superior Court
On certification to the Superior Court, Appellate Division.
This appeal involves a defendant's plea of guilty to a school- zone drug offense under the Comprehensive Drug Reform Act of 1987 (CDRA), N.J.S.A. 2C:35-1 to 36A-1. To satisfy constitutional requirements, in 1992 the Attorney General promulgated two plea- agreement directives to govern prosecutorial discretion in structuring plea offers under the CDRA. Directive Implementing Guidelines Governing Plea-Bargaining and Discretionary Decisions in Drug Prosecutions Involving Mandatory Terms, from Robert J. Del Tufo, Attorney General, to the Director, Division of Criminal Justice and All County Prosecutors (Sept. 15, 1992) (Mandatory Term Guidelines); Directive Implementing Guidelines for Determining Whether to Apply for an Extended Term Pursuant to N.J.S.A. 2C:43- 6(f), from Robert J. Del Tufo, Attorney General, to Director, Division of Criminal Justice and All County Prosecutors (Apr. 20, 1992) (Extended Term Guidelines). Those plea-bargaining guidelines were in effect when defendant committed his drug offense in February 1997.
One year later, this Court decided State v. Brimage, in which we held that plea-bargaining guidelines for offenses then in place were not consistent throughout the State and must be made uniform. 153 N.J. 1, 23 (1998). In response to Brimage, the Attorney General promulgated new guidelines effective May 20, 1998. Attorney General Guidelines for Negotiating Cases Under N.J.S.A. 2C:35-12 (May 20, 1998) (Brimage Guidelines). Also, the Attorney General directed that the Brimage Guidelines "shall apply to all pending cases." Attorney General Directive No. 1998-1 Prosecuting Cases Under the Comprehensive Drug Reform Act (May 20, 1998).*fn1
Approximately two months after the promulgation of the new guidelines, the State extended a plea offer to defendant. Although the plea offer was consistent with the Brimage Guidelines, it included a longer period of parole ineligibility than that available to defendant under the Extended Term Guidelines in effect at the time of his offense. Prior to sentencing, defendant objected to the use of the Brimage Guidelines in calculating the State's plea offer, maintaining that plea negotiations should have proceeded in accordance with those plea-bargaining guidelines in effect at the time of his offense. The issue here is whether the Brimage Guidelines should have been applied to defendant's offense. In an unpublished opinion, the Appellate Division affirmed defendant's sentence.
On July 27, 1998, defendant pled guilty to third-degree possession of a controlled dangerous substance with intent to distribute while within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-7. Defendant admitted that he was in possession of heroin on February 2, 1997, in the Seth Boyden Housing Projects in Newark with intent to distribute, and the defense stipulated that the Projects were within 1,000 feet of a school. In exchange for his plea, the State agreed to dismiss the remaining counts and recommend a sentence of seven years incarceration with forty-two months parole ineligibility, to run concurrently with a sentence he was then serving for an unrelated parole violation. The State's recommendation was in accordance with the presumptive pre- indictment plea offer for an enhanced extended-term sentence under N.J.S.A. 2C:43-6(f), consistent with the Brimage Guidelines. This was defendant's fifth indictable conviction and his second for a drug distribution offense.
Defendant appeared for sentencing in September 1998, at which time defense counsel stated that "while we stand by the plea agreement, . . . we just wanted to express our dissatisfaction with the process." The court imposed the agreed-on sentence of seven years with forty-two months parole ineligibility in addition to appropriate penalties and fees.
Defendant appealed. At oral argument before the Appellate Division, defendant claimed for the first time that application of the Brimage Guidelines to his case violated constitutional prohibitions on ex post facto laws. The Appellate Division disagreed, holding (1) that application of the Brimage Guidelines to defendant was not inconsistent with this Court's decision in Brimage, and (2) that application of the Brimage Guidelines to defendant's case did not violate the ex post facto clauses of the United States or New Jersey Constitutions. We granted defendant's petition for certification, 165 N.J. 606 (2000).
During the last ten years, a tripartite relationship has developed among the legislative directives of the CDRA, the constitutional imperatives announced in this Court's decisions, and the Attorney General's plea-bargaining guidelines implementing those decisions. In State v. Brimage, supra, 153 N.J. at 7-22, this Court reviewed the applicable CDRA statutes and the background leading to the promulgation of the Attorney General's Guidelines. An extensive restatement of that review is unnecessary here except to focus on a principle that underlies this Court's decisions in all our guidelines cases. As first identified in State v. Lagares, 127 N.J. 20, 28-31 (1992), the avoidance of arbitrariness in sentencing is of paramount importance in our jurisprudence in this area.
A mandate to avoid arbitrariness resonates in our cases concerning the guidelines. That principle fosters the goals of the Code of Criminal Justice, N.J.S.A. 2C:1-1 to 104-9 (Code). The Legislature lists among the purposes of the sentencing provisions of the Code the intent "[t]o safeguard offenders against excessive, disproportionate or arbitrary punishment," and "[t]o give fair warning of the nature of the sentences that may be imposed on conviction of an offense." N.J.S.A. 2C:1-2. In our earliest decision addressing in detail the standards that would guide sentencing under the Code, this Court noted that "[t]he central theme of the Code's sentencing reforms is the replacement of the unfettered sentencing discretion of prior law with a structured discretion designed to foster less arbitrary and more equal sentences." State v. Roth, 95 N.J. 334, 345 (1984).
Later, in Lagares, we first considered a constitutional challenge to the prosecutor's power to invoke the extended sentence requirement of N.J.S.A. 2C:43-6(f). 127 N.J. at 23. That statutory provision requires a court to impose an extended term with a period of parole ineligibility for a repeat drug offender, but only upon the application of the prosecutor. Ibid. The infirmity that Lagares identified in Section 6(f) was the prosecutor's unilateral discretion to select, without being subject to judicial review and without standards, which defendants will be subject to an extended term. Id. at 28. The Court considered that infirmity within a broader perspective: Where the Legislature has permitted the executive to select defendants for enhanced punishment or favorable treatment, this Court has generally required that decision-making be carried out in a fashion that ...