On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment Nos. 08-02-0117 and 08-05-0348.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 3, 2012
Before Judges Axelrad and Haas.
Defendant David Wakefield, who pled guilty to the amended charge of third-degree conspiracy to possess cocaine and second-degree possession of cocaine with intent to distribute within 500 feet of a public housing facility, appeals his sentence in excess of the negotiated agreement based on a triggering of the "No Show/No Rec" provision of that agreement. This appeal was transferred from an ESOA calendar to a plenary calendar. We remand.
Under the October 5, 2009 plea agreement, the State agreed to an aggregate custodial sentence of eight years with three years of parole ineligibility (the five-year sentence on the conspiracy charge was to be concurrent). The agreement provided for defendant to be released on his own recognizance pending sentencing on December 31, 2009, "No Show/No Rec."*fn1 Defendant acknowledged at the plea hearing that if he failed to appear at sentencing, the State would not be bound by the sentence recommendation in the agreement, and could argue for a more severe sentence, including an extended term. He also faced a potential bail jumping charge.
The reason for the accommodation was that defendant's infant son had been taken to the hospital in September for emergency surgery following a fall.*fn2 He was scheduled for cranial surgery in the interim. Defendant could then be present for the medical procedures.
Defendant, who had been represented by a Public Defender, consulted private counsel, but could not pay the retainer until December 30, 2009. Defendant's new attorney asked the assistant prosecutor for an extension of the turn-in and sentencing date, explaining his son's need for additional surgeries in January. The assistant prosecutor denied this request, and defense counsel did not contact the judge or otherwise make a more formal request for an adjournment. Defendant did not turn himself in on December 31, resulting in the issuance of a bench warrant, which law enforcement did not serve on defendant.
Defendant's son had surgical procedures on January 12 and l9, 2010. He was discharged from the hospital on January 27, and defendant turned himself in that day. The hearing was not conducted until March 26, and defendant was not sentenced until April l. Defense counsel requested the negotiated sentence based on the circumstances of defendant's failure to timely report to the jail. The assistant prosecutor opposed the request, arguing defendant's conduct constituted a "willful disregard . . . knowing what the consequences were." He requested an extended term for the second-degree offense, recommending a fifteen-year term with five years of parole ineligibility, and a consecutive sentence of five years with two and one-half years of parole ineligibility on the other count.
On April l, 2010, the judge imposed an aggregate sentence of ten years with five years of parole ineligibilty based on aggravating factors three, six, and nine, N.J.S.A. 2C:44-1(a)(3), (6) and (9), and mitigating factor four. N.J.S.A. 2C:44-1(b)(4). The judge accepted as genuine defendant's desire to be "available[,] nearby[,] and supportive" during the "very serious medical condition of his infant son." The judge made specific findings that defendant's reasons for not timely turning himself in, "though certainly not legally meritorious or weighty or conclusive in any sense were at the same time relatively 'sympathetic.'" He also weighed and took into account that defendant did not flee, he did turn himself in about twenty-seven days late, and he "took some steps to try to get the date adjusted." Nevertheless, relying on State v. Subin, 222 N.J. Super. 227, 239-40 (App. Div. l987), certif. denied, 111 N.J. 580 (1988), the judge concluded those reasons did not give defendant a "free pass" for not appearing, and there had to be "a significant consequence" for his decision, but not as "draconian" as proposed by the State.
On appeal, defendant challenges the enhanced sentence as an improper triggering of the "No Show/No Rec" provision of the plea agreement. He urges that the court failed to perform the analysis required by the Court in State v. Shaw, 131 N.J. 1, 16-17 (1993), namely, a consideration of the reasons for defendant's non-appearance and whether an enhanced sentence was justified under the totality of the circumstances. He alternatively argues the judge erred in failing to consider mitigating factor eleven and challenges the sentence as excessive.
Based on our review of the record and applicable law, we are convinced a remand is necessary under the unique circumstances of this case. This is not a situation, like in Subin, where the plea was structured so that, if the defendant did not appear for sentencing, a specific, higher sentence was to be imposed. Supra, 222 N.J. Super. at 229. There, the plea agreement provided for a four-year sentence for burglary and a consecutive three-year term for attempted theft, without a minimum period of parole ineligibility; however, if the defendant failed to appear for sentencing or was arrested for any offense in the interim, the sentence would be increased to an aggregate maximum of ten years with a three-year parole disqualifier. In the present case, however, a violation of the agreement simply gave the State the chance to argue for whatever sentence it deemed appropriate under the guidelines.
Based on comments made by the judge, who stated he was new to the Criminal Division, it appears he believed he had to increase defendant's sentence for failing to appear, at least, in part, as a deterrence to other defendants. In fact, the judgment of conviction expressly states that "[t]his negotiated plea agreement, as amplified by virtue of defendant's failure to appear as ordered on 12/31/09, appears fair to the [S]tate as well as the defendant, and in the interest of justice the recommended sentence will be imposed." (Emphasis added).
As the Court explained in Shaw, supra, 131 N.J. at l6, "in Subin the court was not automatically obliged to impose the enhanced sentence by virtue of the defendant's ...