STATE OF NEW JERSEY v. TOYE A. TUTIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3021-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TOYE A. TUTIS,

Defendant-Appellant.

______________________________

 

Submitted September 20, 2005 - Decided

Before Judges Coburn and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 98-10-2493.

Yvonne Smith Segars, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor (Jack R. Martin, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Toye Tutis, was indicted for multiple offenses occurring between 1996 and 1998. The indictments included charges that while incarcerated in the Atlantic County Jail on December 19, 1996, he threatened to snap a police officer's neck; that he possessed twelve grams of cocaine with intent to distribute, for which he was arrested on June 3, 1997; and that he possessed more than five ounces of cocaine with intent to distribute, for which he was arrested on August 3, 1998. The May 8, 1997 indictment charged defendant with third degree terroristic threats, N.J.S.A. 2C:12-3a. The September 18, 1997 indictment charged defendant with third degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1), as well as related possession counts and fourth degree possession of a radio scanner, N.J.S.A. 2C:33-22. The October 21, 1998 indictment charged defendant with multiple drug offenses, including first degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(1), and second degree possession of a firearm during the commission of a drug offense, N.J.S.A. 2C:39-4.1.

Because defendant had two prior convictions for CDS possession with intent to distribute, he was potentially subject to a mandatory extended term of life imprisonment. Instead, on November 30, 1998, he pled guilty to first degree cocaine possession with intent to distribute, third degree possession with intent to distribute, and a petty disorderly persons offense, pursuant to a plea agreement under which he would be sentenced to twenty years in prison with seventy-eight months of parole ineligibility. The original plea agreement was conditioned on defendant's appearing for sentencing on the scheduled date. He did not appear for sentencing, and after he was apprehended, he was sentenced on February 4, 2000, to thirty years in prison with twelve years parole ineligibility. On appeal, we remanded for resentencing and consideration of defendant's application to withdraw his plea, pursuant to State v. Shaw, 131 N.J. 1 (1993).

At the remand hearing on October 5, 2001, defendant declined to withdraw his plea. However, for the first time, he raised the argument that he had not been extended a pre-indictment plea offer pursuant to the Brimage guidelines. At the 2001 hearing, defendant's counsel argued that defendant was entitled, under the guidelines, to an offer of twenty years with six years (or seventy-two months) of parole ineligibility. He also argued that due to mitigating circumstances, the court should impose a lower sentence. In response, the prosecutor offered a lengthy explanation of the factors justifying the plea offer. Judge Manuel H. Greenberg imposed a twenty year sentence with seventy-eight months parole ineligibility.

Once again, defendant appealed, this time contending that he had been deprived of a pre-indictment Brimage offer. On September 24, 2002, we remanded the matter once more, "to allow determination of whether the [pre-indictment] offer was presented to defendant in accordance with Brimage guidelines, and for recomputation of the sentence imposed if Brimage is found to be violated." See State v. Hammer, 346 N.J. Super. 359, 371 (App. Div. 2001) (remand required where defendant did not receive a Brimage offer).

On the second remand hearing, held January 17, 2003, the State conceded that it had no evidence that defendant had received a pre-indictment offer. But the prosecutor explained why the post-indictment offer that was made would also have been an appropriate pre-indictment offer under the guidelines. That explanation included the fact that the plea offer disposed of multiple indictments for multiple offenses committed on different occasions, including two separate offenses involving possession of five or more ounces of cocaine with intent to distribute. The prosecutor also explained that, had his office insisted on making separate Brimage offers for these separate offenses, defendant would have been offered a total of ninety-six months of parole ineligibility. Judge Garafolo concluded that

the Prosecutor here gave you the functional equivalent, if not [less,] than what the pre-indictment offer would have been, especially in view of the ability to seek consecutive sentences here. You essentially got one sentence . . . with everything else running concurrently. I think the Prosecutor's calculations have been well stated and supported by the facts in this case.

Once again, defendant was offered the opportunity to retract his plea and go to trial, but he declined. He appealed, and on March 8, 2005, we transferred the appeal from the excessive sentence calendar to the plenary calendar.

On this appeal defendant contends that he did not receive a pre-indictment plea offer although such an offer is required by the Brimage guidelines, that under these circumstances the prosecutor was obligated to make a post-indictment offer that was consistent with the offer that would have been made pre-indictment, and that the offer he did receive post-indictment was inconsistent with the guidelines for a pre-indictment offer.

First, we note that defendant arguably waived his right to raise these issues, because he did not contest the offer when he initially plead guilty. On the other hand, his plea was entered shortly after the Brimage guidelines were adopted, and prior to our decision in State v. Coulter, 326 N.J. Super. 584 (App. Div. 1999), in which we held that

a defendant's objections to the prosecutor's actions [in calculating a Brimage offer] should be raised at the trial level in order to afford the prosecutor an opportunity to make a record for appellate review.

[Id. at 589.]

We further held in Coulter that if a defendant raises an objection to the offer, the court should hold a "non-plenary type hearing" in which the prosecutor must demonstrate that the decision "was made on a 'good faith basis' and 'based upon the information available to the prosecutor and reasonable inferences that can be drawn from such information.'" Ibid. To prevail in such a hearing, a defendant must show "by clear and convincing evidence that the prosecutor's challenged decision reflects a gross and patent abuse of discretion." Id. at 590.

Defendant is also contending on this appeal that he is entitled to an offer of sixty months parole ineligibility, an argument he did not present to the trial court when he was re-sentenced on remand on October 5, 2001. At that time, he argued that he was entitled to an offer of six years, or seventy-two months, of parole ineligibility.

In light of the tortured history of this case and in order to put this issue to rest, we address the merits of defendant's Brimage argument.

The 1998 version of the Brimage guidelines provided that a pre-indictment plea offer must be extended to a defendant, even post-indictment, if the county did not have a pre-indictment case disposition program, or if the prosecutor for any reason had not extended a pre-indictment offer. Attorney General Guidelines for Negotiating Cases Under N.J.S.A. 2C:35-12, effective May 20, 1998, at 12-13. But we find nothing in the 1998 Brimage guidelines, or in State v. Brimage, supra, that requires prosecutors to extend the same pre-indictment offer to a defendant accused of multiple drug offenses as would be extended to a defendant accused of one offense. In fact the Guidelines provided that in determining an authorized plea offer, "[w]here the defendant has been charged with more than one offense subject to a waivable minimum term of parole eligibility, the prosecutor should calculate the appropriate authorized plea offer for each such charge involving a separate and distinct offense or transaction." Id. at 21. The Guidelines also noted that "the decision to impose consecutive or concurrent sentences" is nonetheless "generally vested in the discretion of the court." Id. at 23.

In this case, as the prosecutor correctly contends, defendant was arrested on multiple occasions, and indicted for multiple drug dealing offenses. Therefore, the prosecutor could have extended a separate Brimage offer for each offense, each with a separate period of parole ineligibility. Defendant was offered a total sentence of twenty years with seventy-eight months of parole ineligibility, when, if the prosecutor had insisted on making a separate offer for each offense, and if the judge had imposed consecutive sentences, defendant could have received an aggregate sentence that included a total of ninety-six months parole ineligibility. By accepting the prosecutor's "package offer" of seventy-eight months, defendant avoided the risk of receiving a much longer period of parole ineligibility.

In light of his record of prior drug convictions and the number of new offenses with which he was charged, defendant received a very favorable plea offer, and the sentence imposed was exactly that to which he agreed. On the most recent remand before Judge Garafolo, defendant was also offered the opportunity to retract his plea and go to trial if he was dissatisfied with the sentence. He refused the offer.

We agree with Judge Garafolo that defendant received the functional equivalent of a pre-indictment plea offer. In the proceeding before Judge Garafolo, he also received the hearing contemplated in Coulter and failed to prove that the State's Brimage offer was a "gross and patent abuse of discretion." Coulter, supra, 326 N.J. Super. at 590. We find no basis to disturb the sentence.

Affirmed.

 

State v. Brimage, 153 N.J. 1 (1998), was decided on February 19, 1998. Responding to that decision, on May 20, 1998, the Attorney General adopted revised guidelines for negotiating plea offers in drug cases pursuant to N.J.S.A. 2C:35-12.

The Guidelines also provided that "if the county pre-indictment disposition program provides that a defense attorney must affirmatively request the prosecutor to tender a pre-indictment plea offer, the prosecutor shall not be required to tender a pre-indictment plea offer or the functional equivalent of a pre-indictment offer . . . unless the defense attorney has made such affirmative request . . ." Id. at 13. The record does not reflect whether Atlantic County had such a requirement at the time defendant was arrested or whether defendant's counsel affirmatively requested a pre-indictment offer.

This is made explicit in the 2004 version of the Guidelines. Brimage Guidelines 2 (2004 Revisions) at 21. ("A prosecutor is not required by these Guidelines to 'package' multiple drug counts involving separate and distinct transactions.") The 2004 version also retains, in somewhat revised form, the requirement that prosecutors make the "functional equivalent" of a pre-indictment offer under certain circumstances. Id. at 26-28.

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A-3021-02T4

October 17, 2005