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State v. Nance

Supreme Court of New Jersey

April 5, 2017

STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
SHAQUILLE A. NANCE (a/k/a NANCE SHAQUILLE A, NANCE SHAQUILLE), Defendant-Respondent. STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
TAJA L. WILLIS-BOLTON (a/k/a TAJA BOLTON, TAJA WILLIS, TAJ BOLTON, TAJ WILLIS, TAJ WILLISBOLTON, TAJA WILLISBOLTON, Defendant-Respondent. STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
ALVIN D. WILLIAMS, Defendant-Respondent.

          Argued November 7, 2016

         On certification to the Superior Court, Appellate Division, whose opinion is reported at 442 N.J.Super. 268 (App. Div. 2015).

          Daniel I. Bornstein, Deputy Attorney General, argued the cause for appellant (Christopher S. Porrino, Attorney General of New Jersey, attorney).

          Ruth E. Hunter, Designated Counsel, argued the cause for respondents Shaquille A. Nance and Taja L. Willis-Bolton (Joseph E. Krakora, Public Defender, attorney).

          Brian P. Keenan, Assistant Deputy Public Defender, argued the cause for respondent Alvin D. Williams (Joseph E. Krakora, Public Defender, attorney).

          Patterson, J., writing for a unanimous Court.

         In these consolidated sentencing appeals, the Court considers whether an amendment to the Graves Act, N.J.S.A. 2C43-6.2 (section 6.2), which authorizes a prosecutor to move before the assignment judge for a waiver of the Graves Act's mandatory minimum terms of incarceration for certain first-time offenders, was properly applied in defendants' sentencing proceedings. The Court also considers whether sentencing judges have the discretion to elect one of the two alternative sentences set forth in section 6.2: to "place the defendant on probation... or reduce to one year the mandatory minimum term of imprisonment during which the defendant will be ineligible for parole."

         Defendant Nance pled guilty to third-degree unlawful possession of a sawed-off shotgun. As part of that agreement, the State was to recommend a sentence of five years' imprisonment with one year of parole ineligibility. At the sentencing hearing, defendant's counsel requested a reduction in sentence. The sentencing judge suggested that he would be inclined to reduce the five-year term of incarceration, but did not believe that he had the authority to reduce the mandatory minimum further because of the Graves Act waiver under section 6.2. The judge sentenced Nance to a five-year term of incarceration with a one-year period of parole ineligibility.

         Defendant Willis-Bolton pled guilty to second-degree unlawful possession of a handgun. The presiding judge of the Criminal Part granted the prosecutor's motion for a reduction of the period of parole ineligibility from three years, as prescribed by N.J.S.A. 2C:43-6(c), to one year. The sentencing judge sentenced Willis-Bolton to a prison term of three years with one year of parole ineligibility, in accordance with the plea agreement.

         Defendant Williams pled guilty to second-degree unlawful possession of a handgun. As part of that plea agreement, the prosecutor agreed to request that Williams's second-degree offense be treated as a third-degree offense for purposes of sentencing, and to recommend a sentence of three years' imprisonment with one year of parole ineligibility pursuant to section 6.2, rather than the three-year period of parole ineligibility that would otherwise be imposed pursuant to the Graves Act. N.J.S.A. 2C:43-6(c). The State represented to the sentencing judge that a Graves Act waiver had been approved, however it did not identify the judge who granted the waiver and the record is inconclusive on that issue. Williams was sentenced in accordance with the plea agreement.

         Nance, Willis-Bolton, and Williams appealed their sentences. The Appellate Division consolidated their appeals, vacated defendants' sentences and remanded the matters to the respective sentencing courts. 442 N.J.Super. 268 (App. Div. 2015). The panel held that the sentencing judges had improperly concluded that they lacked the discretion to impose sentences that diverged from the terms recommended by the State as part of defendants' plea agreements. The panel reasoned that section 6.2 "vests discretion with the sentencing judge to impose either a one-year minimum term of parole eligibility or probation conditioned on a custodial term upon the motion for a waiver or after a prosecutor approved referral." Id. at 270. Accordingly, the panel ruled that defendants were entitled to be resentenced, with the sentencing courts unrestrained by the terms of the plea agreements.

         The Court granted the State's petitions for certification in the consolidated cases. 224 N.J. 124 (2016).

         HELD: Section 6.2 was misapplied in defendants' sentencing proceedings and therefore defendants should be resentenced. The assignment judge, not the sentencing judge, has the authority to decide whether a defendant will be sentenced to a term of probation or a term of incarceration with a one-year period of parole ineligibility. If the defendant has been convicted of a first-degree or second-degree Graves Act offense, the assignment judge (or designee) must consider the presumption of incarceration prescribed by N.J.S.A. 2C:44-l(d) when he or she chooses between the probationary and one-year mandatory minimum sentences envisioned by section 6.2.

         1. The provision at the center of this case, section 6.2, exempts certain first-time offenders convicted of Graves Act offenses from the mandatory minimum terms of incarceration that the statute otherwise requires. N.J.S.A. 2C:43-6.2. Section 6.2 was enacted to authorize the reduction of sentence for a person convicted of a first offense under the Graves Act if the prosecutor makes a motion before the assignment judge stating that the interests of justice would not be served by the imposition of the mandatory minimum term under the Graves Act. Pursuant to a 2008 memorandum issued by the Administrative Office of the Courts, an assignment judge may delegate his or her authority under section 6.2 to the presiding judge of the Criminal Part. (pp. 10-14)

         2. In construing section 6.2, the Court's task is to ascertain the Legislature's intent, reflecting its chosen language, and to give the words of the statute their generally accepted meaning. The Court first considers who-the assignment judge or the sentencing judge-is authorized by section 6.2 to determine whether the defendant will be sentenced to a term of probation or a term of incarceration with a one-year period of parole ineligibility, following the grant of a prosecutor's motion for a waiver under section 6.2. (pp. 14-15)

         3. The plain language of section 6.2 reveals a clear legislative intent that the assignment judge, not the sentencing judge, has the statutory authority to make such a determination. When an application for a waiver under section 6.2 is made, the assignment judge or his or her designee has the authority to choose one of two sentences: he or she "shall place the defendant on probation pursuant to [N.J.S.A. 2C:43-2(b)(2)] or reduce to one year the mandatory minimum term of imprisonment during which the defendant will be ineligible for parole." N.J.S.A. 2C43-6.2. Although the prosecutor retains the discretion to decide whether to seek a Graves Act waiver in a given case, and may argue in favor of a probationary term or a custodial sentence with a one-year period of ineligibility, nothing in the statute suggests that the assignment judge or designee must accept the prosecutor's recommendation. Nor does section 6.2 permit the sentencing court to choose between the statutory alternatives; the authority to elect one of the two sentences set forth in section 6.2 is clearly vested in the assignment judge, (pp. 15-16)

         4. Two of the three cases raise an additional issue not addressed by the Appellate Division: the role of the presumption of incarceration prescribed by N.J.S.A. 2C:44-l(d) in the sentencing determination under section 6.2 for a first-degree or second-degree Graves Act offender. N.J.S.A. 2C:44-l(d) provides a "serious injustice" exception to the presumption of imprisonment, which applies only in extraordinary and unanticipated circumstances and thus imposes a high standard that must be overcome before a first or second-degree offender may be sentenced to a non-custodial term. (pp. 17-18)

         5. The Court construes section 6.2 and N.J.S.A. 2C:44-l(d) so as to harmonize the two components of the Code's sentencing scheme. Nothing in either provision suggests that a Graves Act waiver exempts a defendant convicted of a first or second-degree offense from the presumption of incarceration. Because one of the two alternative sentences permitted under section 6.2-a custodial term with a mandatory minimum of one year-constitutes a "sentence of imprisonment" within the meaning of N.J.S.A. 2C:44-l(d), an assignment judge or designee may comply with section 6.2 and N.J.S.A. 2C:44-l(d) at once. When the defendant has been convicted of a first-degree or second-degree Graves Act offense, the assignment judge, or the presiding judge as his or her designee, must consider the presumption of incarceration set forth in N.J.S.A. 2C:44-l(d). Following the assignment judge's or designee's determination, the sentencing court, applying N.J.S.A. 2C:44-2 and other pertinent provisions of the Code, exercises its discretion to weigh the aggravating and mitigating factors and determine the remaining terms of the sentence; it may impose the sentence recommended as part of the plea agreement, but is not required to do so. (pp. 18-21)

         6. In each of the three cases consolidated in this appeal, the defendant is entitled to resentencing. The record of Nance's sentencing does not reveal whether the presiding judge made the determination required by section 6.2, and the sentencing judge considered himself constrained to accept the sentence recommended as part of the plea agreement. In the sentencing of Willis-Bolton, the record is unclear as to whether the presiding judge conducted the determination required by section 6.2. In the sentencing of Williams, the parties dispute whether or not the assignment judge decided between a probationary sentence and a term of incarceration as prescribed by section 6.2. (pp. 21-24)

         The judgment of the Appellate Division is AFFIRMED, in part, and REVERSED, in part, and the consolidated cases are REMANDED to the trial court for resentencing in accordance with this opinion.

          CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE PATTERSON's opinion.

          OPINION

          PATTERSON JUSTICE

         The Graves Act, N.J.S.A. 2C:43-6(c), imposes a mandatory minimum term of incarceration on an offender "who uses or possesses a firearm while committing, attempting to commit, or fleeing after the commission of certain designated crimes." State v. Robinson, 217 N.J. 594, 607 (2014) (quoting State v. Stewart, 96 N.J. 596, 601 (1984)). An amendment to the Graves Act, N.J.S.A. 2C:43-6.2 (section 6.2), authorizes a prosecutor to move before the assignment judge for a waiver of the Graves Act's mandatory minimum terms of incarceration for certain first-time offenders. Section 6.2 empowers the assignment judge (who may delegate his or her authority to the presiding judge of the Criminal Part) to "place the defendant on probation ... or reduce to one year the mandatory minimum term of imprisonment during which the defendant will be ineligible for parole." Ibid. The statute also permits a sentencing judge to refer a case to the assignment judge for a waiver of the Graves Act penalties. Ibid.

         These consolidated sentencing appeals require the Court to resolve procedural issues with respect to the application of section 6.2. In each case, in accordance with a plea agreement between the defendant and the State, the State agreed to recommend a sentence of incarceration with a one-year period of parole ineligibility. Following the assignment judge's approval of the Graves Act waiver pursuant to section 6.2, each defendant was sentenced to a term of incarceration with a one-year period of parole ineligibility rather than a probationary term. Defendants challenged their sentences on appeal. An Appellate Division panel vacated defendants' sentences and remanded for resentencings. The panel held that a sentencing judge has the authority to choose between the alternative sentences permitted by section 6.2 and that, because the sentencing judges in these cases improperly concluded that they lacked the discretion to diverge from the sentence recommended by the State in accordance with the plea agreement, defendants should be resentenced.

         We affirm in part and reverse in part the Appellate Division panel's judgment. We affirm the panel's determination that in defendants' sentencing proceedings, section 6.2 was ...


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