Opinion
DOCKET NO. A-2848-13T3
08-06-2015
STATE OF NEW JERSEY, Plaintiff-Appellant, v. MIKE MAYER a/k/a MAYER MICHEAL, MAYER MIKE L, GARCIA MIKE M, Defendant-Respondent.
Brian D. Gillet, Deputy First Assistant Prosecutor, argued the cause for appellant (Andrew C. Carey, Middlesex County Prosecutor, attorney; Mr. Gillet, of counsel and on the brief). Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Accurso and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 13-01-0027. Brian D. Gillet, Deputy First Assistant Prosecutor, argued the cause for appellant (Andrew C. Carey, Middlesex County Prosecutor, attorney; Mr. Gillet, of counsel and on the brief). Respondent has not filed a brief. PER CURIAM
The State appeals from the February 19, 2014 order of the Law Division denying the State's motion for reconsideration of defendant's sentence. We reverse and remand.
On October 5, 2012, Middlesex Borough Police responded to a report that someone was shooting a BB gun or pellet gun at the Parker Elementary School. Police observed two juvenile males pulling a soda bottle and cardboard off the fence surrounding the school. Upon questioning, one of the juveniles informed the officers that his father, defendant, was home at a residence adjacent to the school. Defendant had a .177 caliber pellet rifle in his possession. He stated that he gave the juveniles permission to shoot the gun at a bottle full of water. Defendant also shot the gun. The bottle was on school property and caused $500 worth of damage to property.
Defendant was charged with: second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4a(1) (count one); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(c) (count two); and criminal mischief, N.J.S.A. 2C:17-3a(1) (count three). Defendant pled guilty to count one. The State agreed to recommend 364 days of jail time after seeking a Graves Act waiver. The State also agreed to permit defense counsel to submit additional documentation in support of an application for "greater consideration" in the case. Thereafter, the State filed a motion before the Assignment Judge, pursuant to N.J.S.A. 2C:43-6.2, seeking to exempt defendant from the mandatory three-year term under the Graves Act.
The Assignment Judge granted the motion and entered an order specifying that defendant was to be sentenced to probation with a custodial term of 364 days in the county jail. The Assignment Judge did not sentence defendant, but referred the case back to the judge to whom the case was assigned. Later that same day, that judge sentenced defendant to a non-custodial sentence with two years' probation, giving him sixteen days credit for time served.
In a Memorandum dated November 21, 2008, the Acting Administrative Director of the Courts, at the direction of the Chief Justice, clarified that while statutory language indicates that motions for waiver of, or reductions to, the otherwise mandatory minimum terms of imprisonment or parole ineligibility required pursuant to the Graves Act are to be made by the Prosecutor to the Assignment Judge, that responsibility is delegable by the Assignment Judge to the Criminal Presiding Judge, pursuant to inherent authority and the Rules of Court.
Although not specifically referenced in the Memorandum, we presume that the responsibility for sentencing may also be delegated to the Criminal Presiding Judge. R. 1:336(a). We are uncertain whether the delegation extends to other judges assigned to the Criminal Division.
The State filed a motion for reconsideration of the noncustodial sentence. Prior to the return date of the motion, the parties appeared before the Assignment Judge. After oral argument, the prior order was modified and superseded. The order stated that defendant "shall be exempt from the mandatory minimum three-year term or eighteen-month term of incarceration pursuant to N.J.S.A. 2C:43-6 and defendant shall be placed on probation pursuant to N.J.S.A. 2C:43-6.2." The parties appeared before the sentencing judge on the motion for reconsideration relating to the non-custodial sentence. After argument, the motion was denied.
The judge stayed the sentence for ten days to afford the State the opportunity to file an appeal.
On appeal the State argues:
POINT I
THE SENTENCING COURT DID NOT HAVE DISCRETION TO SENTENCE DEFENDANT, A GRAVES ACT OFFENDER, TO NON-CUSTODIAL PROBATION WITHOUT THE PROSECUTOR'S CONSENT.
Pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), any person convicted of the unlawful possession of a firearm, N.J.S.A. 2C:39-5(b), "shall be sentenced to a term of imprisonment . . . ." The Graves Act further requires that "[t]he term of imprisonment shall include the imposition of a minimum term[,] . . . fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater . . . during which the defendant shall be ineligible for parole."
In State v. Des Marets, 92 N.J. 62, 73 (1983), the Court stated that, under the then-applicable provisions of the Graves Act, a person who was convicted of an offense that came within the ambit of the Act, could not "escape a mandatory minimum imprisonment of at least three years." The Court stated that the Graves Act reflected the Legislature's intent "to deter the use of firearms by establishing mandatory minimum terms of imprisonment to ensure certainty of punishment." Ibid.
In 1989, the Legislature enacted N.J.S.A. 2C:43-6.2 (the Graves Act "escape valve"). The purpose of the amendment was to allow the trial courts to exercise greater discretion in the sentencing of first-time firearms offenders, where the imposition of the mandatory minimum terms required by the Graves Act were deemed to be "unnecessarily and unproductively harsh." Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2:43-6.2.
In State v. Alvarez, 246 N.J. Super. 137, 145 (App. Div. 1991), we noted that, under N.J.S.A. 2C:43-6.2, the Assignment Judge has the ultimate sentencing responsibility, and has been given a choice of sentences that can be imposed for first-time Graves Act offenders. We stated that the Assignment Judge "can impose a probationary sentence pursuant to [N. J.S.A. 2C:43-2(b)(2)] or impose a custodial sentence within the authorized range for the offense with a mandatory ineligibility term of one year." Alvarez, supra, 246 N.J. Super. at 145. We added, however, that the Assignment Judge "cannot consider either of these alternatives or options without the prosecutor's consent." Ibid.
N.J.S.A. 2C:43-6.2 provides in relevant part:
On a motion by the prosecutor made to the Assignment Judge that the imposition of a mandatory minimum term of imprisonment under [the Graves Act] for a defendant who has not previously been convicted of an offense under that subsection . . . does not serve the interest of justice, the Assignment Judge shall 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. The sentencing court may also refer a case of a defendant who has not previously been convicted of an offense under that subsection to the Assignment Judge, with the approval of the prosecutor, if the sentencing court believes that the interests of justice would not be served by the imposition of a mandatory minimum term.
In Alvarez, supra, we concluded that the Graves Act escape valve was "constitutional because the Assignment Judge has the ultimate authority to decide whether the prosecutor arbitrarily or unconstitutionally discriminated against a defendant in determining whether the 'interests of justice' warrant reference to the Assignment Judge." Id. at 147.
The State argues that the probationary sentence authorized by the "escape valve" statute reposes no discretion in the court since it requires a defendant to be sentenced in accord with N.J.S.A. 2C:43-2b(2) to a term of imprisonment. The State also argues the judge erred in sentencing defendant to non-custodial probation contrary to the plea agreement without prosecutorial consent. Although fundamentally we are in agreement with both arguments, we conclude the error was not the failure of the judge to adhere to the plea agreement but the judge's failure to adhere to the sentencing mandate of N.J.S.A. 2C:43-2b(2).
N.J.S.A. 2C:43-2b(2) provides in pertinent part:
Except as provided in subsection g. of this section, to be placed on probation and, in the case of a person convicted of a crime, to imprisonment for a term fixed by the court not exceeding 364 days to be served as a condition of probation, or in the case of a person convicted of a disorderly person offense, to imprisonment for a term fixed by the court not exceeding 90 days to be served as a condition of probation [.]
In State v. Vasquez, 129 N.J. 189 (1992), our Supreme Court addressed the issue of mandatory sentences:
Mandatory sentences usually allow for no judicial discretion. See, e.g., State v. Jefimowicz, 119 N.J. 152, 162 (1990) (sentencing standards applicable to discretionary extended terms do not apply to Graves Act because "[t]here is nothing discretionary about this determination"); State v. Towey, 114 N.J. 69, 80, 82 (1989) (no judicial discretion in mandatory sentencing structure of Graves Act; State v. Des Marets, 92 N.J. 62, 80 (1983) (Legislature can limit the judiciary's discretion to sentence by prescribing mandatory minimum terms for offenses committed with firearms).
[Id. at 199.]
In State v. Watson, 346 N.J. Super. 521 (App. Div. 2002), a Graves Act case, we referenced the sentence options when a prosecutorial waiver is granted; "a reduced mandatory minimum term of one year, or to place the defendant on probation with the condition of a jail term pursuant to N.J.S.A. 2C:43-2b(2)." Id. at 535.
Here, the clear and unambiguous statutory mandate provided for a custodial term as a condition of probation. Although defendant received sixteen days credit for time served, this does not satisfy the custodial requirement of the sentence. Defendant was not sentenced to those days as a condition of probation. The credit would apply only in the event there was a custodial sentence imposed upon a violation of probation. See N.J.S.A. 2C:45-1(e): State v. Carlough, 183 N.J. Super. 234, 235-36 (App. Div. 1982).
As such, the failure to impose a custodial term renders the sentence illegal and requires that we remand this matter for resentencing. We note that at the resentence, the judge would have discretion as to the length of the custodial term as the controlling statute does not mandate the length of imprisonment; only that imprisonment be imposed.
Finally, to the extent the State argues the judge was specifically bound by the plea agreement's terms relative to the length of the custodial term, we disagree. The plea agreement here was not a "contract plea." See State v. Bridges, 131 N.J. 402, 414 (1993). As we noted, the "escape valve" statute does not expressly or implicitly limit the sentencing judge's ability to sentence a defendant to a lesser sentence, i.e., custodial term, provided for under the plea agreement, nor does it require the judge to reject the bargain should the judge conclude the plea is not in the interest of justice. See State v. Leslie, 269 N.J. Super. 78, 84 (App. Div. 1993) certif. denied, 136 N.J. 29 (1994). In criminal matters not subject to a "contract plea" the "parties can agree only on a sentence that the prosecutor will 'recommend' to the court; they are not empowered to negotiate a sentence that can have any binding effect." State v. Warren, 115 N.J. 433, 442 (1989).
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION