State v. Sepulveda

• Decision Date: 13 January 1992
• Citation: 602 A.2d 273,253 N.J.Super. 447
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Noel SEPULVEDA, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 447

253 N.J.Super. 447

602 A.2d 273

STATE of New Jersey, Plaintiff-Respondent, v. Noel SEPULVEDA, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Oct. 21, 1991.

Decided Jan. 13, 1992.

Wilfredo Caraballo, Public Defender of New Jersey, for defendant-appellant (J. Michael Blake, Asst. Deputy Public Defender, of counsel and on the brief).

Edward F. Borden, Jr., Camden County Prosecutor, for plaintiff-respondent (Laurie A. Corson, Asst. Prosecutor, of counsel and on the brief).

Before Judges BILDER, STERN and KEEFE.

The opinion of the court was delivered by

KEEFE, J.A.D.

Defendant Noel Sepulveda pled guilty to an accusation which as amended charged him with distribution of cocaine within 1,000 feet of a school. N.J.S.A. 2C:35-7. The plea was given pursuant to a plea agreement which provided that the State would waive the mandatory period of parole ineligibility unless the defendant was found guilty of a violation of probation or failed to appear for sentencing. N.J.S.A. 2C:35-12.

Pursuant to the plea agreement, defendant was sentenced to four years probation with 364 days' incarceration in the county jail and 300 hours of community service. The court also imposed a $1,000 DEDR penalty, a $50 lab fee, a $30 VCCB penalty and a six month loss of New Jersey driving privileges. Defendant served his county jail time and began his probationary term. Approximately seven months later, a petition for violation of probation was filed. At the violation of probation hearing, defendant admitted to violating the conditions of his probation by failing to report to his probation officer, failing to obtain a drug and alcohol evaluation within 45 days of his release from jail, failing to perform any community service, and failing to pay the VCCB and DEDR penalties. Because the waiver permitted by N.J.S.A. 2C:35-12 was given in connection with the "initial plea only," the State argued that the judge was bound to impose a sentence that included a three year period of parole ineligibility.

The judge, referring to defendant's lack of prior record, stated that he could not find any reason to justify the sentence he imposed considering the mitigating and aggravating factors and the sentencing structure but, nonetheless, imposed a five year sentence with a three year period of parole ineligibility "solely because the statute commands it." The penalties and fines previously imposed were not altered.

Defendant appeals and raises the following issues:

POINT I N.J.S.A. 2C:35-12, WHICH PREVENTS THE JUDGE FROM AMELIORATING A MANDATORY SENTENCE WITHOUT THE PROSECUTOR'S CONSENT, VIOLATES THE DOCTRINE OF SEPARATION OF POWERS AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW. ( U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, PAR. 1; ART III, PAR. 1). (Not Raised Below).

A. N.J.S.A. 2C:35-12 Is Unconstitutional.

B. N.J.S.A. 2C:35-12 Cannot Be Utilized To Deprive The Court Of Its Obligation Pursuant To N.J.S.A. 2C:45-3a(4) To Determine Whether The Defendant Has "Inexcusably Failed To Comply With A Substantial Requirement" Of Probation And Whether That Violation Should Result In The Revocation Of Probation.

C. N.J.S.A. 2C:35-12 Cannot Be Utilized To Circumvent The Sentencing Guidelines Set Forth In State v. Baylass, 114 N.J. 169, 553 A.2d 326 (1989) And State v. Molina, 114 N.J. 181, 553 A.2d 332 (1989). (Not Raised Below).

POINT II THE COURT ERRED IN IMPOSING A FIVE YEAR SENTENCE, WHICH IS NOT MANDATORY PURSUANT TO N.J.S.A. 2C:35-7, WAS NOT REQUESTED BY THE PROSECUTOR, AND AS RECOGNIZED BY THE COURT IS NOT JUSTIFIED BY WEIGHING THE AGGRAVATING AND MITIGATING FACTORS. (Not Raised Below).

POINT III N.J.S.A. 2C:35-7 IS UNCONSTITUTIONAL ON ITS FACE AND AS APPLIED TO THIS DEFENDANT. (Not Raised Below).

POINT IV N.J.S.A. 2C:35-15, WHICH PROVIDES FOR MANDATORY DRUG ENFORCEMENT AND DEMAND REDUCTION PENALTIES TO BE IMPOSED ON ALL PERSONS CONVICTED OF OFFENSES ENUMERATED IN THE COMPREHENSIVE DRUG REFORM ACT OF 1986, N.J.S.A. 2C:35-15 ET SEQ., VIOLATES THE DEFENDANT'S RIGHTS TO EQUAL PROTECTION AND DUE PROCESS AND IS CRUEL AND UNUSUAL PUNISHMENT, ( U.S. CONST. AMEND. VIII, XIV), AND VIOLATES THE STATE CONSTITUTIONAL PROHIBITION OF EXCESSIVE FINES ( N.J. CONST. (1947), ART. I, PAR. 12). (Not Raised Below).

The issues presented in Point IA, Point III and Point IV are clearly without merit. R. 2:11-3(e)(2); State v. Todd, 238 N.J.Super. 445, 570 A.2d 20 (App.Div.1990); State v. Gonzalez, 241 N.J.Super. 92, 574 A.2d 487 (App.Div.1991), rev'd in part on other grounds, 123 N.J. 462, 588 A.2d 816 (1991); State v. Anaya, 238 N.J.Super. 31, 568 A.2d 1208 (App.Div.1990); State v. Ogar, 229 N.J.Super. 459, 551 A.2d 1037 (App.Div.1989); State In the Interest of L.M., 229 N.J.Super. 88, 550 A.2d 1252 (App.Div.1988). However, we find merit in the issues presented in Point 1B & C as well as Point II and remand the matter for resentencing for the reasons stated herein.

I

There is nothing in the wording of N.J.S.A. 2C:35-12 or in legislative history which suggests that the prosecutor's power to negotiate an agreement resulting in the waiver of the otherwise mandatory provisions of N.J.S.A. 2C:35-7 extends beyond the initial sentence imposed pursuant to the agreement. Ordinarily, a prosecutor cannot, as a part of a plea agreement, dictate what will occur in the event there is a violation of probation. Whether a defendant's violation of probation is sufficiently egregious to warrant revocation of probation is a decision reposed by the Legislature in the courts, not the prosecutor. See State v. Baylass, 114 N.J. 169, 175, 553 A.2d 326 (1989); N.J.S.A. 2C:45-3a(4). Moreover, "[o]nce the court determines that the violation justifies revocation of probation, the Code controls the sentencing decision." State v. Baylass, supra, 114 N.J. at 178, 553 A.2d 326. Thus, to determine the appropriate terms of the resentence, the judge refers to the sentencing scheme provided in the Code for the crime to which defendant originally pled guilty rather than the terms of the sentence agreed upon by defendant in the plea agreement. State v. Ervin, 241 N.J.Super. 458, 465-70, 575 A.2d 491 (App.Div.1989). Here, the State, rather than the defendant as in Ervin, argues that the court is bound by the plea agreement when resentencing takes place for a violation of probation. The distinction, however, is without legal significance because the rationale of Ervin is that the statute not the agreement dictates the procedure for resentencing on violations of probation. Id. Thus, the court is not bound by a plea agreement which attempts to bind it to revoke probation and impose a jail term simply because there has been a violation of probation.

In this case the trial judge erred by failing to initially determine whether defendant's violations warranted a revocation of his probation. N.J.S.A. 2C:45-3a(4). Indeed, the judge's remarks reflect that he may not have revoked probation had he utilized the traditional approach to such matters and not felt bound by the plea agreement. Clearly, the judge was not compelled to revoke probation where the violations were inconsequential. Id. Thus, a reversal of the sentence and remand would be justified on that basis alone.

II

However, on remand the judge may conclude that defendant's violations are substantial and justify revocation of probation. We assume from our interpretation of the record that the judge might then feel compelled to adhere to the prosecutor's decision not to waive the mandatory minimum sentence permitted by N.J.S.A. 2C:35-12 and impose the sentence recommended by the prosecutor. Should defendant's probation be revoked we, nonetheless, conclude that the proceeding is still governed by N.J.S.A. 2C:45-3 and State v. Baylass, supra. The judge is obligated to resentence in accord with the applicable Code provision to which defendant pled guilty, namely, N.J.S.A. 2C:35-7, possession with intent to distribute cocaine within 1000 feet of school property. State v. Baylass, supra, 114 N.J. at 175, 553 A.2d 326. That is so not because either the plea agreement or the prosecutor require the judge to do so but because N.J.S.A. 2C:45-3 requires it.

N.J.S.A. 2C:35-7 provides that a defendant who violates the statute "shall ... be sentenced by the court to a term of imprisonment[,] ... [and] 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" unless there is a waiver and agreement under N.J.S.A. 2C:35-12. N.J.S.A. 2C:35-7. Thus, at resentencing, a defendant such as Sepulveda would receive a minimum term of three years unless the prosecutorial waiver previously given remains binding on the State.

Therefore, the ultimate question to be decided is whether the prosecutor is bound by the earlier waiver despite his statement at the plea hearing that he would not be so bound. The majority opinion in State v. Wearing, 249 N.J.Super. 18, 591 A.2d 1350 (App.Div.1991), held that the prosecutor was not bound by the initial waiver so long as the defendant was "properly advised at the time of plea and sentencing about his maximum exposure and mandatory ineligibility term upon violation of probation...." Id. at 26, 591 A.2d 1350. Judge Cohen in a dissenting opinion reasoned: "[t]he grant ... of waiver at initial sentencing exhausts any legitimate law enforcement purposes for which the prosecutor is given the N.J.S.A. 2C:35-12 authority. Those law enforcement purposes are not revived by a probation violation." Id. at 30, 591 A.2d 1350. In State v. Vasquez, 250 N.J.Super. 457, 595 A.2d 520 (App.Div.1991), another part of this court adopted Judge Cohen's dissent as the basis for its unanimous view that a waiver once given binds the State thereafter. We also endorse Judge Cohen's view that the waiver, once given, is...