On appeal from the Superior Court of New Jersey, Law Division, Salem County, 04-12-0444-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and A. A. Rodríguez.
Defendant, James Afelis, entered into an agreement with the State, pleading guilty to thirteen offenses as follows: fourth degree issuing a bad check, N.J.S.A. 2C:21-5; fourth degree theft, N.J.S.A. 2C:20-3; fourth degree possession of marijuana, N.J.S.A. 2C:35-10a(3); two counts of third degree possession with intent to distribute marijuana, N.J.S.A. 2C:35-5b(11); third degree theft, N.J.S.A. 2C:20-3; third degree conspiracy to commit theft, N.J.S.A. 2C:5-2 and 2C:20-3; two counts of third degree burglary, N.J.S.A. 2C:18-2; third degree receiving stolen property, N.J.S.A. 2C:20-7a; three counts of third degree burglary, N.J.S.A. 2C:18-2; and fourth degree criminal mischief, N.J.S.A. 2C:17-3a(1). In exchange, the State agreed to dismiss multiple charges and recommend a three-year term on a burglary count consecutive to a three-year term on the other burglary count. All other sentences were to run concurrent. Thus, the aggregate term would have been six years. The State also agreed, as reflected in the plea form: to ROR bail of defendant pending sentencing.
If defendant fails to appear for sentencing or commits a new offense subsequent to date of plea, the court is free to impose any sentence permissible law.
Defendant failed to appear for sentencing. When defendant did appear, Judge William L. Forester indicated that he could not abide by the negotiated sentence recommendation. Instead, the judge imposed a four-year term on each of the two burglary convictions to run consecutively. The sentence on all other offenses ran concurrently. Thus, defendant was sentenced to an eight-year aggregate term.
Defendant contends on appeal:
THE COURT LACKED THE AUTHORITY TO INCREASE DEFENDANT'S SENTENCE BECAUSE HE FAILED TO APPEAR ON THE ORIGINAL SENTENCING DATE.*fn1
We reject this contention and affirm.
A plea agreement that allows the judge to impose a higher sentence than a defendant would have received had he appeared for sentencing is valid and enforceable. State v. Subin, 222 N.J. Super. 227, 237 (App. Div.), certif. denied, 111 N.J. 580 (1988); State v. Barboza, 115 N.J. 415, 420 (1989). If the agreement is voluntarily and knowingly made by defendant, it does not offend public policy. Subin, supra, 222 N.J. Super. at 238-39. However, the judge may not impose the higher sentence automatically, solely because defendant failed to appear. Id. at 239. The judge must always fashion a sentence in accordance with the provisions of the New Jersey Code of Criminal Justice. Ibid. The judge must weigh the aggravating and mitigating factors that are supported by the evidence pursuant to N.J.S.A. 2C:44-7, and then impose a term that is in accordance with the sentencing guidelines and based upon a proper weighing of the factors. State v. O'Donnell, 117 N.J. 210, 215 (1989). We emphasize that Subin is still good law.
This case does not come within the prohibition set by State v. Rolex, 167 N.J. 447 (2001) against "no appearance/no waiver agreement," because it does not involve drug offenses that require compliance with the Brimage*fn2 guidelines. The offenses to which defendant pleaded guilty do not involve mandatory minimum terms. In fact, only one offense of the thirteen to which defendant pleaded guilty involved narcotics. The Rolex case involved a third degree possession of marijuana with intent to distribute in a school zone, whereas this was not a school zone case.
Moreover, because of the nature of the offenses to which defendant pleaded guilty, this case does not come within the requirement of State v. Shaw, 131 N.J. 1 (1993) either. In Shaw, the Supreme Court held that inclusion of appearance requirement in a school zone plea agreement was not an arbitrary or abusive exercise of prosecutor's discretionary power. However, the trial court ...