State v. Gonzalez

• Citation: 603 A.2d 516,254 N.J.Super. 300
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Yvette GONZALEZ, Defendant-Appellant.
• Decision Date: 25 February 1992
• Court: New Jersey Superior Court – Appellate Division

Page 300

254 N.J.Super. 300

603 A.2d 516

STATE of New Jersey, Plaintiff-Respondent, v. Yvette GONZALEZ, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted Feb. 11, 1992.

Decided Feb. 25, 1992.

Wilfredo Caraballo, Public Defender, for defendant-appellant (Paul M. Klein, Deputy Public Defender II, of counsel and on the brief).

Robert J. Del Tufo, Atty. Gen., for plaintiff-respondent (Michael J. Williams, Deputy Atty. Gen., of counsel and on the letter-brief).

Before Judges LONG, BAIME and THOMAS.

The opinion of the court was delivered by

BAIME, J.A.D.

This appeal concerns the constitutionality of N.J.S.A. 2C:35-12, which permits a court to waive a mandatory sentence only upon the approval of the prosecutor. We hold that the Legislature did not intend to circumvent the judiciary's power to protect defendants from arbitrary application of the statute. We interpret the statute as permitting judicial review of the exercise of prosecutorial discretion. So construed, we find no violation of the separation of powers doctrine.

Pursuant to an agreement with the State, defendant entered retraxit pleas of guilty to two counts of possession of heroin with intent to distribute within 1,000 feet of school property ( N.J.S.A. 2C:35-7). On the date set for sentencing, defendant moved to withdraw her pleas. The matter was adjourned, but later the Law Division denied defendant's application. Defendant was sentenced to concurrent five year sentences. In accordance with the prosecutor's stipulation under N.J.S.A. 2C:35-12, defendant was ordered to serve two and one-half years without parole eligibility on each count. The remaining counts of two separate indictments were dismissed on motion of the prosecutor.

Defendant appeals, contending that (1) the Law Division abused its discretion by denying her motion to withdraw her pleas of guilty, and (2) N.J.S.A. 2C:35-12 violates the separation of powers doctrine. Although defendant's attack upon the constitutionality of N.J.S.A. 2C:35-12 requires discussion, we find no merit in her claim that her plea should have been vacated. R. 2:11-3(e)(2).

We need not recount the facts at length. Suffice it to say, the Law Division judge meticulously adhered to the requirements of R. 3:9-2 in accepting defendant's plea of guilty. At the plea proceedings, defendant candidly acknowledged her guilt of the crimes charged. She was questioned exhaustively concerning her understanding of the terms of the plea agreement. The Law Division judge accepted defendant's plea only after satisfying himself that her decision not to contest the charges was made voluntarily and with knowledge of her alternatives and options. See State v. McCoy, 222 N.J.Super. 626, 629, 537 A.2d 787 (App.Div.1988), aff'd, 116 N.J. 293, 561 A.2d 582 (1989).

Against this backdrop, we are entirely satisfied that the court did not abuse its discretion when it denied defendant's motion to withdraw her guilty pleas. A guilty plea voluntarily entered should not generally be vacated in the absence of some plausible showing of a valid defense against the charges. State v. Huntley, 129 N.J.Super. 13, 17, 322 A.2d 177 (App.Div.), certif. denied, 66 N.J. 312, 331 A.2d 12 (1974). This principle has particular efficacy where the plea has been entered pursuant to an agreement with the State. Id. at 18, 322 A.2d 177; see also State v. Thomas, 61 N.J. 314, 322, 294 A.2d 57 (1972); State v. Rodriguez, 179 N.J.Super. 129, 136, 430 A.2d 957 (App.Div.1981). All plea agreement jurisprudence "recognizes the important interest" of finality. State v. Smullen, 118 N.J. 408, 416, 571 A.2d 1305 (1990). Although the significance of that policy diminishes somewhat when the motion to withdraw is made before sentencing, "the measure of what constitutes fair and just reason for withdrawal must be reposed in the sound confidence of the court." Id. at 417, 571 A.2d 1305. Here, we are satisfied that defendant's motion was based upon a whimsical change of mind, not a realistic appraisal of a defense somehow forgotten or missed at the time of the guilty plea. We find no sound basis to disturb the Law Division's exercise of its discretionary powers.

We now turn to defendant's separation of powers argument. In reaching this contention, we acknowledge that a guilty plea generally constitutes a waiver of all issues which were or could have been addressed by the trial judge before its entry. See State v. Truglia, 97 N.J. 513, 522-24, 480 A.2d 912 (1984); State v. Alevras, 213 N.J.Super. 331, 339-40, 517 A.2d 460 (App.Div.1986); State v. Rosenberg, 160 N.J.Super. 78, 80 388 A.2d 1298 (App.Div.), certif. denied, 78 N.J. 332, 395 A.2d 201 (1978). Under our rules, a defendant may plead guilty while preserving an issue for appellate review only with the "approval of the court and the consent of the prosecuting attorney." R. 3:9-3(f). See State v. Robinson, 224 N.J.Super. 495, 499, 540 A.2d 1313 (App.Div.1988).

We address this point, however, because it relates in part to sentencing, notwithstanding the specifics of the plea agreement. State v. Santiago, 253 N.J.Super. 197, 200, 601 A.2d 714, 716 (App.Div.1991). Further, it would be unfair under the circumstances presented to require defendant to forego the benefit of the plea agreement in order to raise this important question. Strict adherence to the requirements of R. 3:9-3(f) "would result in an injustice." R. 1:1-2.

We begin with the operative language of the applicable statutes. N.J.S.A. 2C:35-7 provides in pertinent part:

Any person who violates subsection a. of N.J.S. 2C:35-5 by distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog while on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property or a school bus, or while on any school bus, is guilty of a crime of the third degree and shall, except as provided in N.J.S. 2C:35-12, be sentenced by the court to a term of imprisonment. Where the violation involves less than one ounce of marijuana, the term of imprisonment shall include the imposition of a minimum term which shall be fixed at, or between, one-third and one-half of the sentence imposed, or one year, whichever is greater, during which the defendant shall be ineligible for parole. In all other cases, the term of imprisonment shall include the imposition of a minimum term which shall be fixed at, or between, one-third and one-half of the sentence imposed, or three years, whichever is greater, during which the defendant shall be ineligible for parole. Notwithstanding the provisions of subsection b. of N.J.S. 2C:43-3, a fine of up to $100,000.00 may also be imposed upon any conviction for a violation of this section.

N.J.S.A. 2C:35-12 reads:

Whenever an offense defined in this chapter specifies a mandatory sentence of imprisonment which includes a minimum term during which the defendant shall be ineligible for parole, or a mandatory extended term which includes a period of parole ineligibility, the court upon conviction shall impose the mandatory sentence unless the defendant has pleaded guilty pursuant to a negotiated agreement or, in cases resulting in trial, the defendant and the prosecution have entered into a post-conviction agreement, which provides for a lesser sentence or period of parole ineligibility. The negotiated plea or post-conviction agreement may provide for a specified term of imprisonment within the range of ordinary or extended sentences authorized by law, a specified period of parole ineligibility, a specified fine, or other disposition. In that event, the court at sentencing shall not impose a lesser term of imprisonment, period of parole ineligibility or fine than that expressly provided for under the terms of the plea or post-conviction agreement.

These sections were enacted as part of the Comprehensive Drug Reform Act of 1986 ( N.J.S.A. 2C:35-1 through :36-9). The articulated objective of the statutory scheme was to impose "a uniform, consistent and predictable sentence for a given offense," thereby providing a "rational deterrent ... designed ultimately to reduce the incidence of crime." N.J.S.A. 2C:35-1.1a. By enacting N.J.S.A. 2C:35-7, the legislative design was "to afford special protection to children from the perils of drug trafficking [and] to ensure that all schools and [adjacent] areas ... are kept free from drug distribution activities." N.J.S.A. 2C:35-1.1c. To effectuate this policy, the Act "includes many mandatory penalties." John M. Cannel, New Jersey Criminal Code Annotated, Comment to N.J.S.A. 2C:35-12 (1992). See also N.J.S.A. 2C:35-12; N.J.S.A. 2C:35-14. However, the Legislature clearly wished to accord some flexibility and thus allowed for plea bargaining and post-verdict negotiations. John M. Cannel, New Jersey Criminal Code Annotated, Comment to N.J.S.A. 2C:35-12 (1992).

N.J.S.A. 2C:35-7 provides for a mandatory sentence and period of parole ineligibility for distribution type offenses that occur near school property. N.J.S.A. 2C:35-12 permits a sentencing judge to relax that requirement, but only where there has been a plea agreement or a post-verdict agreement between the prosecutor and the defendant. At issue is whether the juxtaposition of these sections deprives the judiciary of its sentencing powers and whether the statutes unlawfully delegate the sentencing responsibility to the executive branch. Questions concerning the reach of those statutes have been raised in a variety of contexts. See, e.g., State v. Sepulveda 253 N.J.Super. 447, 602 A.2d 273 (App.Div.1992); State v. Shaw, 253 N.J.Super. 187, 601 A.2d 709 (App.Div.1991); State v. Vasquez, 250 N.J.Super. 457, 595 A.2d 520 (App.Div.1991), certif. granted, 126 N.J. 389, 599 A.2d 165 (1991); State v. Wearing, 249 N.J.Super. 18, 26, 591 A.2d 1350 (App.Div.1991); State...