State v. Nance

• Decision Date: 05 April 2017
• Docket Number: A-49-15 September Term 2015, 076626., A-48,Nos. A-47,s. A-47
• Parties: 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.
• Court: New Jersey Supreme Court

228 N.J. 378

157 A.3d 439

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.

Nos. A-47

A-48

A-49-15 September Term 2015, 076626.

Supreme Court of New Jersey.

Argued November 7, 2016

Decided April 5, 2017

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).

JUSTICE PATTERSON delivered the opinion of the Court.

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, 92 A .3d 656 (2014) (quoting State v. Stewart , 96 N.J. 596, 601, 477 A .2d 300 (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 misapplied, and that defendants should therefore be resentenced.

We reverse the panel's ruling that sentencing judges have the discretion to elect one of the two alternative sentences set forth in section 6.2. In accordance with the plain language of section 6.2, 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. N.J.S.A. 2C:43–6.2. 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:44–1(d) when he or she chooses between the probationary and one-year mandatory minimum sentences envisioned by section 6.2.

Accordingly, we remand these matters for resentencing in accordance with the procedure prescribed by section 6.2.

I.

A.

On April 19, 2013, defendant Shaquille A. Nance (Nance) pled guilty before a Mercer County judge to third-degree unlawful possession of a sawed-off shotgun, in violation of N.J.S.A. 2C:39–3(b). Nance pled guilty as part of a plea agreement that required the State to recommend a sentence of five years' imprisonment with one year of parole ineligibility, rather than the three-year period of parole ineligibility that would otherwise apply under the Graves Act, subject to the presiding judge's approval of a reduction of the Graves Act's mandatory minimum.

At Nance's sentencing hearing, his counsel requested a reduction in the sentence recommended under the plea agreement from five years with a one-year period of parole ineligibility to three years with a one-year period of parole ineligibility. Defense counsel cited Nance's youth, his efforts to obtain an education and job training, and the absence of a prior felony on his record. The sentencing judge suggested that he would be inclined to reduce the five-year term of incarceration envisioned by the plea agreement, 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 found aggravating factor nine, "[t]he need for deterring the defendant and others from violating the law," N.J.S.A. 2C:44–1(a)(9), and "gave partial credit to" both mitigating factor seven, the lack of "history of prior delinquency or criminal activity," N.J.S.A. 2C:44–1(b)(7), and mitigating factor twelve, "[t]he willingness of the defendant to cooperate with law enforcement authorities," N.J.S.A. 2C:44–1(b)(12). In weighing the aggravating and mitigating factors in accordance with N.J.S.A. 2C:44–1(a) and (b), the judge sentenced Nance to a five-year term of incarceration with a one-year period of parole ineligibility.

B.

On February 19, 2013, defendant Taja L. Willis–Bolton (Willis–Bolton) pled guilty before a Monmouth County judge to one count of second-degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39–5(b). Immediately prior to the plea hearing, 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 plea agreement between the State and Willis–Bolton required the State to recommend a sentence of three years' incarceration with a one-year period of parole ineligibility.

At Willis–Bolton's sentencing, the sentencing judge found aggravating factor three, "[t]he risk that the defendant will commit another offense," N.J.S.A. 2C:44–1(a)(3), and aggravating factor nine, N.J.S.A. 2C:44–1(a)(9), and found no mitigating factors. The judge concluded that the aggravating factors predominated. In accordance with the plea agreement, the judge sentenced Willis–Bolton to a prison term of three years with one year of parole ineligibility.

C.

On April 8, 2013, defendant Alvin D. Williams (Williams) pled guilty before a Union County judge to second-degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39–5(b). Pursuant to the plea agreement between Williams and the State, 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). Although the State represented to the sentencing judge that a Graves Act waiver had been approved, it did not identify the judge who granted the waiver. Williams contends that the State failed to follow the statutory procedure, and the record is inconclusive on that issue.

In accordance with the plea agreement, the State asked the sentencing judge to sentence Williams as a third-degree offender. The judge found aggravating factor three, N.J.S.A. 2C:44–1(a)(3), aggravating factor nine, N.J.S.A. 2C:44–1(a)(9), and mitigating factor seven, N.J.S.A. 2C:44–1(b)(7). The judge determined that the aggravating factors outweighed the mitigating factor and sentenced Williams to a term of three years' incarceration with a one-year period of parole ineligibility.

D.

Nance, Willis–Bolton, and Williams appealed their sentences to the Appellate Division, which consolidated their appeals. An Appellate Division panel reversed defendants' sentences and remanded the three matters to the respective sentencing courts for resentencing. State v. Nance , 442 N.J.Super. 268, 270, 122 A .3d 348 (App. Div. 2015). The panel held that the sentencing judges in all three cases had improperly concluded that they lacked the discretion to impose sentences that diverged from the terms of incarceration with a one-year period of parole ineligibility recommended by the State as part of defendants' plea agreements. Id. at 273, 122 A .3d 348. 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." Ibid. The panel accordingly ruled that defendants were entitled to be resentenced, with the sentencing courts unrestrained by the terms of the plea agreements. Id. at 275–76.

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

II.

The State argues that the Appellate Division panel misapplied the plain language of section 6.2, and undermined the established procedural framework for Graves Act waivers, when it concluded that a sentencing court has...