State v. Cooper

• Decision Date: 26 July 1996
• Citation: 295 N.J.Super. 40,684 A.2d 524
• Parties: STATE of New Jersey, Plaintiff, v. Darnell COOPER, Defendant.
• Court: New Jersey Superior Court

Page 40

295 N.J.Super. 40

684 A.2d 524

STATE of New Jersey, Plaintiff, v. Darnell COOPER, Defendant.

Superior Court of New Jersey,

Law Division,

Essex County.

July 26, 1996.

[684 A.2d 525] Clifford J. Minor, Essex County Prosecutor, Eugene Holt, New York City, for plaintiff.

Michael Marucci, Public Defender for Essex County, Patricia McEnroe, Holmdel, for defendant.

FAST, J.S.C.

This is a restatement of the reasons given upon sentencing a defendant to a period of parole ineligibility that was longer than that recommended by the prosecutor in a plea agreement. Defendant took issue with the court's authority to do that; the prosecutor took no position on the issue.

STATEMENT OF THE ISSUE

The issue presented in this matter is whether the court can, sua sponte, enhance the sentence of a defendant for the violation of a condition attached by the court to the release of defendant after defendant entered into a plea of guilty. At the time of the plea, defendant accepted the condition and thereafter violated the condition by having failed to appear on the scheduled sentencing date. A bench warrant was issued, and when defendant was brought before the court for the sentencing, I held that the enhancement was proper and did enhance the sentence. Although similar issues have been reported, there is no reported opinion relating to either 1) the condition having been imposed by the court itself, or 2) the sentence being enhanced on the court's own initiative.

FACTS

Defendant pleaded guilty, accepting an offer by the prosecutor, to charges of 1) possession of a controlled dangerous substance with intent to distribute it within 1,000 feet of a school ( N.J.S.A. 2C:35-7), a third degree crime, 2) aggravated assault ( N.J.S.A. 2C:12-1b(5)(a)), a fourth degree crime, and 3) resisting arrest ( N.J.S.A. 2C:29-2), a fourth degree crime. The prosecutor's recommendation to the court was that the sentence not exceed four years, with a twenty month parole ineligibility. Other counts were recommended for dismissal upon sentencing, and the appropriate assessments and penalties were also to be included in the sentence and are not in issue.

After the plea had been taken, on March 7, 1996, defense counsel stated:

"Your honor, we would ask that you give us as long a sentencing date as is possible. Mr. Darnell Cooper has a young wife and a small child and he would like as much time to prepare them, they're going to lose their apartment; he has to make arrangements for his wife and daughter to move elsewhere. He's going to try to get as much money together for them as he possibly can before he goes. So the longest date that would be acceptable to them [sic] was Mr. Cooper's request. And I would also note that Mr. Cooper has always been here, never missed a court date. When he was sick, he always called in. He has always tried to cooperate with the court."

A sentencing date seven weeks thereafter was given, long after the normal period, pursuant to the request.

I thereupon advised the defendant that "Mr. Cooper, I want to point out one thing to you. In effect, I am doing you and your family a favor by giving you such a lengthy date for sentencing. Accordingly, because I am not exactly going over board, but doing that favor, I expect that you will be here on April 26."

The defendant responded, "Yes, sir." and I added the condition as follows:

"I want to make it clear to you that if you're not here on April 26 and if I have to issue a bench warrant, which would be because I'm given no good reason for your absence, then I do not feel that I will be bound by this plea bargain. I will be free to impose a different sentence, a lengthier sentence. Do you have any question about that?" [emphasis added]

The defendant answered by saying "No, I don't."

I then added: "I'm saying this because I want to make sure that you understand the importance of being here on April 26." The defendant then said "I understand."

And, to make sure, I added:

"We will give you a form to remind you of the date. If you have any question, I know you have my 'phone number because you called here yesterday to advise that you were in ill health. You may call if there is any particular problem, but I will expect to see you on April 26."

The defendant: "Thank you."

The defendant did not appear for sentencing on April 26th, no reason was given for his absence, and a bench warrant for his arrest did issue. He was arrested on the bench warrant on June 7, and was present for sentencing on June 25.

Defendant was given a hearing on June 25, about his failure to have appeared for sentencing on April 26. Defendant said that he did not appear because his grandmother, with whom he said that he had been living, had been ill and that he had to attend to her. He gave no reason for having failed to call either his attorney nor the court to ask to have the matter "held," nor to ask for an adjournment of the sentencing date. He said nothing about the status of his wife, child, or their relocation.

Defendant's record includes four indictable convictions, two C.D.S. charges (including 1,000 foot charges), sexual assault, and receiving stolen property. His last sentence was five years in State prison, including a parole ineligibility of eighteen months. When he was presented for sentencing (on June 25), I was also advised that he had an open indictable matter which was alleged to have occurred while pending disposition on this matter.

On June 25, having expressed my intent to enhance the sentence, defense counsel requested the opportunity to research the issue of the enhanced sentence. The sentencing was therefore adjourned to July 12. At that time, after having given the defendant one more opportunity to address the reasons for his failure to have appeared, and no good reason having been given, a custodial sentence of four years, with a twenty-four month parole ineligibility (that is, four months in addition to the term recommended by the prosecutor) was imposed (together with the other assessments and penalties.) The sentence on the non-drug crimes was to run concurrent with the sentence on 2C:35-7.

DISCUSSION OF LAW

The principles that most resemble those involved here are found in the Supreme Court opinion of State v. Shaw, 131 N.J. 1, 618 A.2d 294 (1993), reversing 253 N.J.Super. 187, 601 A.2d 709 (App.Div.1991) and State v. Francisco Santiago, 253 N.J.Super. 197, 601 A.2d 714 (App.Div.1991). Both Shaw and Santiago pled guilty to school zone violations of drug laws and both failed to comply with an appearance requirement in the plea bargain. Having breached that condition, both defendants were sentenced, including three year parole ineligibility terms which would have been avoided had the defendants appeared for sentencing when scheduled.

Other cases have considered two conditions that have been included in plea offers made by prosecutors. One condition, as considered in Shaw, is that if the defendant is released either in defendant's own recognizance or continued on bail, but fails to appear for sentencing when scheduled [presumably without good cause] the prosecutor will consider that there is a breach of the condition and that the otherwise agreed-upon recommendation that there be no parole ineligibility [i.e., a waiver of the required sentence under 2C:35-7, pursuant to 2C:35-12] will have been withdrawn. In Shaw, the Court called this a "no appearance/no waiver provision." It held that when this condition is integrated under the State v. Vasquez, 129 N.J. 189, 609 A.2d 29 (1992) guidelines, it is valid and enforceable.

The other similar condition that has been included in plea offers is that when a defendant is sentenced pursuant to 2C:35-12 to a period of probation, but violates any of the terms or conditions of probation, the prosecutor is likewise not bound to the waiver of parole ineligibility (thereby subjecting the defendant to a term of parole ineligibility upon a violation of probation.) For example, see State v. Vasquez, supra, and State v. Wearing, 249 N.J.Super. 18, 591 A.2d 1350 (App.Div.1991).

There are significant differences, however, between the subject case and the reported opinions that include the two conditions just stated. Specifically, the differences are that: 1) the subject condition was imposed by the court, rather than by the prosecutor, after the defendant had requested special consideration by the court as a part of a plea proceeding, 2) the sentence did not conflict with the prosecutor's recommendation under 2C:35-12, because it already included a period of parole ineligibility, 3) the enhanced sentence was imposed after having given a hearing to defendant for his failure to have appeared on the scheduled date and was proportionate to the failure to appear for sentencing, and 4) was based on aggravating factors as announced at sentencing.

This being a case of first impression, I find that the principles expressed in similar cases, especially Shaw, supra, 131 N.J. 1, 618 A.2d 294 (1993), provide the most reliable guidance.

My first consideration is the " '... delicate balance between discretion and fixed sentencing. An independent judiciary is [its] fulcrum.' " Shaw, supra, at 3, 618 A.2d 294, quoting from State v. Lagares, 127 N.J. 20, 30, 601 A.2d 698 (1992), (quoting State v. Warren, 115 N.J. 433, 449, 558 A.2d 1312 (1989)). Shaw next noted the authority of the prosecutor to append conditions to a plea agreement. ¹ If this condition is valid when proposed by the prosecutor, can it be less than valid when imposed by an independent judiciary, with knowledge and an understanding of the consequences by the defendant? I fail to find any greater power in the prosecutor than in a court, to enforce a condition to sentencing under a plea agreement. I likewise find no statutory suggestion to the contrary.

In fact, N.J.S.A. 2C:35-12 authorizes a prosecutor to waive the otherwise required three-year parole ineligibility under 2C:35-7,...