On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 08-09-1500 and 08-12-2068.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 12, 2012
Before Judges Simonelli, Koblitz and Lisa.
The opinion of the court was delivered by LISA, J.A.D. (retired and temporarily assigned on recall).
These cases*fn1 require determination of the principles applicable to resentencing a defendant whose special probation pursuant to N.J.S.A. 2C:35-14 has been permanently revoked.*fn2
Defendants Darryl Bishop and Wilberto Torres argue that the trial court erred in resentencing them for their underlying convictions of possession with intent to distribute a controlled dangerous substance within one thousand feet of school property, N.J.S.A. 2C:35-7, to extended terms of imprisonment with a parole disqualifier pursuant to N.J.S.A. 2C:43-6f. Relying on cases applicable to resentencing after a revocation of "regular" probation pursuant to N.J.S.A. 2C:45-3b, defendants contend that the sentences they received are impermissible because the prosecutor, by consenting to their initial special probation sentence, irrevocably waived the right to seek such a sentence upon permanent revocation of special probation.
We disagree with defendants. We hold that mandatory periods of parole ineligibility and mandatory extended term provisions that existed at the time of original sentencing survive during the term of special probation and remain applicable at the time of resentencing upon permanent revocation of special probation. Accordingly, we affirm.
Both defendants pled guilty to possession with intent to distribute heroin within one thousand feet of school property, N.J.S.A. 2C:35-7. Both defendants had been previously convicted of drug offenses that rendered them eligible for mandatory extended terms, if requested by the prosecutor, pursuant to N.J.S.A. 2C:43-6f.
Pursuant to plea agreements in both cases, the prosecutor consented to defendants being sentenced to Drug Court, more particularly, to special probation pursuant to N.J.S.A. 2C:35-14a, for which defendants met all eligibility criteria. Each plea agreement recommended a sentence of special probation, but also provided for an "alternate sentence" of seven years imprisonment with a forty-two-month parole disqualifier. This constituted an extended term sentence in each case pursuant to N.J.S.A. 2C:43-6f, calculated under the Revised Attorney General Guidelines For Negotiating Cases Under N.J.S.A. 2C:35-12, July 15, 2004 (Attorney General Guidelines).
After serving a portion of their special probation terms, each defendant pled guilty to multiple and serious probation violations. Neither defendant disputed that his probation should be permanently revoked, nor does either defendant now contend that revocation was improper.
At their violation of probation (VOP) sentencings, the prosecutor sought imposition of the seven-year sentences with forty-two-month parole disqualifiers as alternatively provided for in the plea agreements. Bishop asked the court to consider imposing a five-year sentence with a three-year parole disqualifier, or to consider waiving the parole disqualifier. Torres requested a seven-year sentence with a thirty-month parole disqualifier. In each case, the court reassessed the applicable aggravating and mitigating factors. The court found in each case the presence of the same three aggravating factors that existed at the time of original sentencing, namely (3) the risk of another offense, (6) defendant's prior record, and (9) the need for deterrence; the court found no mitigating factors present. See N.J.S.A. 2C:44-1a and b. Finding a substantial preponderance of aggravating factors as to each defendant, the court sentenced Bishop to seven years imprisonment with a forty-two-month parole disqualifier, and sentenced Torres to seven years imprisonment with a thirty-six-month parole disqualifier.
Defendants now contend that their VOP sentences constituted an abuse of discretion and violated the sentencing principles laid down in State v. Baylass, 114 N.J. 169 (1989), State v. Lagares, 127 N.J. 20 (1992), State v. Vasquez, 129 N.J. 189 (1992), and State v. Peters, 129 N.J. 210 (1992). Defendants argue that, in accordance with the principles prescribed in these cases, their VOP sentences should have been no more than four years imprisonment with no parole disqualifier.
In advancing their argument, defendants begin with the proposition that "there is no such thing as an agreed-upon 'alternative sentence' in the event of a VOP." They further argue that by consenting to their entry into special probation, the prosecutor irrevocably waived the right to seek an extended term sentence pursuant to N.J.S.A. 2C:43-6f, should a VOP occur. In defendants' view, the alternative presented to them in their plea agreements at the time of their original pleas gave them the option of choosing either special probation or a state prison sentence not to exceed seven years with a forty-two-month parole disqualifier. They argue that once they made their choice and were sentenced, the other alternative was no longer of any effect and, having chosen special probation, the prison alternative could not be rekindled upon a VOP. Thus, they contend, at their VOP sentencings, the prosecutor lacked the authority to seek an extended term sentence with a parole disqualifier, and the court lacked the authority to impose such a sentence.*fn3
We begin our analysis by distinguishing between regular probation and special probation. Regular probation has long been an authorized disposition under the New Jersey Code of Criminal Justice (Code), N.J.S.A. 2C:1-1 to 2C:104-9. See N.J.S.A. 2C:43-2b(2). Regular probation is a non-state prison sentence (although it can be conditioned upon serving not more than 364 days in a county jail). Ibid.
In general terms, a regular probationary sentence is typically imposed for third or fourth-degree offenses which do not contain a specific provision requiring a state prison sentence. For such offenders with no prior criminal record, there is a presumption against state prison, and for such offenders with a prior record, there is no presumption either for or against state prison. N.J.S.A. 2C:44-1e; State v. Meyer, 192 N.J. 421, 433 n.5 (2007). Where there is no presumption either for or against state prison, the court must weigh aggravating and mitigating factors enumerated in N.J.S.A. 2C:44-1a and b in making the "in-out" decision, that is, whether to impose a state prison sentence or a probationary sentence. State v. Clarke, 203 N.J. 166, 176 (2010); Meyer, supra, 192 N.J. at 433 n.5.
For crimes of the first or second degree, there is a presumption of imprisonment, N.J.S.A. 2C:44-1d, which is rarely overcome. State v. Soricelli, 156 N.J. 525, 532-34 (1999). Thus, for such offenders, a regular probationary sentence is almost ...