STATE OF NEW JERSEY v. KASSAN JONES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3773-03T43773-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KASSAN JONES,

Defendant-Appellant.

 

Submitted: November 16, 2005 - Decided January 30, 2006

Before Judges Stern and Fall.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment Numbers 99-07-0680 and 00-05-0503.

Yvonne Smith Segars, Public Defender, attorney for appellant (Charles H. Landesman, Designated Counsel, of counsel and on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Terry Bogorad, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

This is a sentencing appeal placed on the plenary calendar by our order issued on December 17, 2004, requiring the parties to brief the issues

of whether the trial court should have merged defendant's convictions under counts two and three of indictment 00-05-0503-1; the effect of the trial court's promise to defendant to impose a sentence of nine years imprisonment, with four-and-a-half years of parole ineligibility, upon the negotiated plea agreement that defendant would be sentenced to a sixteen-year term, with eight years parole ineligibility; and the effectiveness of the no-appearance-no recommendation aspect of the plea agreement in light of State v. Rolex, 167 N.J. 447 (2001), aff'g 329 N.J. Super. 220 (App. Div. 2000), and the Attorney General's June 11, 2001 letter to all prosecutors regarding this form of plea agreement in drug cases.

Defendant Kassan Jones was charged in Passaic County Indictment Number 99-07-0680 with third-degree possession of heroin, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) (count two); third-degree possession of heroin with intent to distribute in a school zone, N.J.S.A. 2C:35-7 (count three); second-degree possession of heroin with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count four); third-degree distribution of heroin, N.J.S.A. 2C:35-5a(1) (count five); third-degree distribution of heroin within a school zone, N.J.S.A. 2C:35-7 (count six); and second-degree distribution of heroin within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count seven). The charges in that indictment arose from an incident occurring on December 30, 1998.

Defendant was also charged in Passaic County Indictment Number 00-05-0503 with fourth-degree possession of marijuana, N.J.S.A. 2C:35-5a(1), -5b(12) (count one); third-degree possession of marijuana with intent to distribute in a school zone, N.J.S.A. 2C:35-7 (count two); and third-degree possession of marijuana with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count three). The charges in this indictment arose from an incident occurring on February 16, 2000, with the quantity of marijuana involved being less than one ounce.

On October 31, 2000, the State and defendant entered into a plea agreement, under which defendant agreed to enter a plea of guilty to count two (third-degree possession of marijuana with intent to distribute in a school zone) and count three (third-degree possession of marijuana with intent to distribute within 500 feet of a public housing facility) in Indictment Number 00-05-0503, and to count six (third-degree distribution of heroin in a school zone) and count seven (second-degree distribution of heroin within 500 feet of a public housing facility) in Indictment Number 99-07-0680. The State agreed to request dismissal of all other charges, and to recommend that the sentences imposed on the convictions in each indictment be consecutive, with an aggregate term of sixteen years imprisonment and an eight-year period of parole ineligibility.

After defendant acknowledged his understanding and acceptance of the plea agreement, the judge had the following colloquy with defendant:

THE COURT: They will be asking me to sentence you to sixteen years in State Prison with eight years before parole, you understand that?

DEFENDANT: Yes, sir.

THE COURT: [Your attorney] was here almost the entire day discussing your case with me on and off for most of yesterday, do you understand that?

DEFENDANT: Yes sir.

THE COURT: I told your attorney that if I accept the plea offer, and I don't know yet whether I will accept it until I see the presentence report, but if I accept it, I will run the sentences concurrently, that is, I will run them together and not one after the other. So your total exposure would be nine years with four and a half before parole, do you understand that?

DEFENDANT: Yes, sir.

THE COURT: Not the sixteen and eight that the State is asking for, I will give you nine with four and a half before parole, do you understand that?

DEFENDANT: Yes, sir.

At the conclusion of the plea hearing, the judge informed the defendant, as follows:

THE COURT: I find that the defendant understands the nature of the charges to which he pled guilty, he has received advice of competent counsel, he is aware of the maximum penalties he's facing, there is factual basis for each of the pleas, which I will accept subject to the presentence report.

Mr. Jones, I am going to allow you to remain on bail pending the date of your sentence. However, let me give you what we call the Santiago warnings. Listen very carefully because I impose those sentences if people do not show up in the courtroom.

You will be allowed to remain on bail until the sentence date, which would be January 26th. I'll sentence you well after the holidays. January 26th is a Friday. January 26th at 9:00 for sentencing. You have to be in this courtroom.

If you fail to show up in this courtroom on January 26th, 2001, your guilty pleas will remain, but you will no longer have the benefit of the plea that I'm giving you. Do you understand that?

DEFENDANT: Yes, sir.

THE COURT: What that means is that if you fail to show up here, your guilty plea remains, but you are looking at twenty-five years with thirteen years before parole. Do you understand that?

DEFENDANT: Yes, sir.

THE COURT: Do you have any questions you want to ask the court?

DEFENDANT: No, sir.

On January 26, 2001, defendant appeared in court, but then left prior to his sentencing hearing. The court issued a bench warrant for defendant's arrest, and forfeited his bail.

In the interim, on June 11, 2001, the Attorney General issued a letter to all county prosecutors, stating:

In State v. Rolex, [167] N.J. [447] (May 2001), the Supreme Court agreed with the ruling of the Appellate Division, 329 N.J. Super. 220 (App. Div. 2000), that the wide discretion given to individual prosecutors with respect to determining when to give a no appearance/no waiver plea offer in a case involving a mandatory minimum sentence under the Comprehensive Drug Reform Act appears contrary to the mandate of sentencing uniformity in State v. Brimage, 153 N.J. 1 (1998). The Division of Criminal Justice has determined that in light of the Rolex decision, prosecutors shall not be permitted to offer a no appearance/no waiver provision in any plea negotiated pursuant to the Attorney General Guidelines for Negotiating Cases Under N.J.S.A. 2C:35-12. Thus, Section 8 of Attorney General Directive No. 1998-1, which permits such offers, is hereby rescinded. Furthermore, in pending cases involving a breach of a no appearance/no waiver agreement, the prosecutor shall not retract the waiver offer; instead, the defendant shall receive the sentence to which the parties had originally agreed. This directive is effective immediately.

[Emphasis added.]

On February 27, 2003, defendant was arrested on the bench warrant, and appeared in the Law Division for sentencing on May 16, 2003.

On Indictment Number 99-07-0680, the court merged the third-degree school-zone conviction on count six into the second-degree public-housing-project conviction on count seven, and sentenced defendant to a term of imprisonment of twelve years, with a six-year period of parole ineligibility.

On Indictment Number 00-05-0503, the court imposed concurrent terms of five years imprisonment with a two-year parole disqualifier, each, on his convictions on count two (third-degree possession of marijuana with intent to distribute in a school zone) and count three (third-degree possession of marijuana with intent to distribute within 500 feet of a public housing facility), with those sentences to also run concurrent with the term imposed on Indictment Number 99-07-0680. The aggregate term thus imposed was a period of twelve years imprisonment with a six-year parole disqualifier. Applicable minimum mandatory fines and penalties were also imposed.

On appeal, defendant presents the following arguments for our consideration:

POINT I

THE TRIAL COURT SHOULD HAVE MERGED DEFENDANT'S CONVICTIONS UNDER COUNTS TWO AND THREE OF INDICTMENT NO. 00-05-0503-I.

POINT II

THE SENTENCE IMPOSED UPON THE DEFENDANT WAS ILLEGAL.

POINT III

THE TRIAL COURT SHOULD HAVE SENTENCED THE DEFENDANT TO A SENTENCE OF NINE YEARS IMPRISONMENT WITH FOUR AND ONE-HALF YEARS OF PAROLE INELIGIBILITY.

POINT IV

THE NO APPERANCE-NO RECOMMENDATION ASPECT OF THE PLEA AGREEMENT IS UNENFORCEABLE.

We agree, as does the State, that the trial court was required to merge at sentencing the convictions on counts two and three in Indictment Number 00-05-0503. See State v. Wesner, 372 N.J. Super. 489, 491 (App. Div. 2004), certif. denied, 183 N.J. 214 (2005); State v. Parker, 335 N.J. Super. 415, 423-26 (App. Div. 2000). We also agree with the State that notwithstanding that merger the parole disqualifier requirement contained in N.J.S.A. 2C:35-7, "[w]here 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[,]" must be retained. Parker, supra, 335 N.J. Super. at 426; see also State v. Dillihay, 127 N.J. 42, 45 (1992).

Defendant argues that the sentence of twelve years imprisonment with a six-year parole disqualifier on Indictment Number 99-07-0680 was illegal because the judge stated he would not impose an extended term. During the sentencing hearing, the judge stated: "I'm even going to give you less than what you plea bargained for. I'm not going to give you extended I'm going to give you less[.]" Earlier during the sentencing hearing, the judge stated that defendant "has three indictable convictions, clearly making him liable for an extended prison sentence under the law and he waived that motion on the day he entered his plea admitting, in fact, that he did, in fact, qualify for an extended prison sentence." Our review of the transcript of the sentencing hearing discloses that the intention of the judge with respect to the issue of an extended term was not clearly expressed or articulated.

The problem presented is that the plea agreement itself is contradictory and confusing. In item number 1 on the first page thereof, it states that defendant has agreed to plead guilty to, inter alia, a second-degree offense on count three in Indictment Number 00-05-0530, possession of marijuana with intent to distribute within 500 feet of a public housing project, N.J.S.A. 2C:35-7.1. However, the quantity of marijuana involved, as alleged in the indictment, was less than one ounce. N.J.S.A. 2C:35-7.1a specifically provides "that it is a crime of the third degree if the violation involved less than one ounce of marijuana." (Emphasis added). The plea transcript and judgment of conviction all clearly indicate that count three in Indictment Number 00-05-0530 is a third-degree offense.

The plea agreement also provides that the State agreed to recommend imposition of an aggregate sixteen-year term of imprisonment with an eight-year parole disqualifier. During the plea hearing, the prosecutor stated that recommendation consisted of a nine-year term of imprisonment, with a parole disqualifier of four-and-one-half years, on the convictions on Indictment Number 99-07-0680, and a seven-year term of imprisonment with a parole disqualifier of three-and-one-half years on the convictions on Indictment Number 00-05-0530. The prosecutor also stated that to achieve the sought aggregate term, the State would recommend that these sentences be consecutive.

However, in absence of imposition of an extended term, the ordinary sentencing range for a crime of the third degree is a term of imprisonment of "between three and five years[.]" N.J.S.A. 2C:43-6a(3). Given the requirements of N.J.S.A. 2C:35-7, the sentence on the merged charges in Indictment Number 00-05-0530 would also require imposition of a parole disqualifier of "at, or between, one-third and one-half of the sentence imposed, or one year, whichever is greater[.]" Additionally, in light of the merger requirement, the seven-year aggregate term contemplated by the State by its recommendation with respect to sentencing on the convictions in Indictment Number 00-05-0530 would not be possible by imposition of an ordinary term.

Certainly, if a mandatory extended term had been imposed upon application by the prosecutor, N.J.S.A. 2C:43-6f, the range of sentencing on a third-degree offense would be "between five and ten years[,]" N.J.S.A. 2C:43-7a(4), along with a mandatory parole disqualifier unless waived pursuant to N.J.S.A. 2C:35-12 of "between one-third and one-half of the sentence imposed by the court or five years, whichever is greater[.]" N.J.S.A. 2C:43-7c. However, in item number 14b of the plea agreement, the defendant and State specifically acknowledged that the State would not seek an extended term.

In fact, the State did not seek imposition of an extended term at the May 16, 2003 sentencing hearing. Yet, in imposing a twelve-year term on the second-degree conviction in Indictment Number 99-07-0680, the judge essentially sentenced defendant to an extended term. Seemingly, the sentencing judge was attempting to sentence defendant to a term less than that recommended by the State in the plea agreement, consistent with his expression of intent during the plea hearing, by not running the terms imposed on each indictment consecutively.

However, in the first instance, the fundamental flaws and inconsistencies set forth in the plea agreement, as discussed above, precluded imposition of the recommended sentence without providing defendant an opportunity to withdraw his pleas. Although we need not engage in speculation to reach a decision on this appeal, it appears that the erroneous assumption inherent in the plea agreement that count three of Indictment Number 99-07-0680 was a second-degree offense led, or at least contributed to, the apparent confusion. If consecutive sentences on second-degree crimes in each indictment had been possible, then the structuring of the recommended aggregate term of sixteen years imprisonment, with an eight-year parole disqualifier, as set forth in the plea agreement could have been attained, although the constitutional precepts announced in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), as applied to the sentencing provisions in the New Jersey Code of Criminal Justice by State v. Natale (Natale II), 184 N.J. 458 (2005), would have dictated a vacating of such a sentence and a remand for resentencing.

The sentence imposed must be vacated. There was no discussion during the plea hearing of an extended term incident to the plea, the plea agreement specifically stated the State would not apply to the court for imposition of an extended term, and no application for an extended term was made at or before sentencing, notwithstanding defendant's non-appearance. Additionally, the statement of reasons given for the sentence imposed does not expressly reflect that the judge imposed an extended term, or did so based exclusively on the prior convictions.

Although there is a discussion by the judge during the sentencing hearing of defendant's lengthy prior record, the risk that defendant will commit another offense, N.J.S.A. 2C:44-1a(6), and the need for deterrence, N.J.S.A. 2C:44-1a(9), are not related exclusively to the prior convictions. Moreover, in imposing sentence, the judge also found as an aggravating factor that the imposition of a non-custodial sentence would be perceived by defendant and others merely as a part of the cost of doing business, N.J.S.A. 2C:44-1a(11). However, that factor is only applicable where the sentencing judge "is balancing a non-custodial term against a prison sentence." State v. Dalziel, 182 N.J. 494, 502 (2005). Consideration of that factor here was inappropriate because, clearly, there was never an issue as to whether defendant would receive a non-custodial sentence, and an ineligibility term was mandatory for the merged school zone offenses.

 
The sentences imposed are vacated, and the matter is remanded for resentencing consistent with this opinion, after merging the convictions within each indictment, and in light of the impact of the original recommendation by the State, the judge's statement during the plea hearing as to the term he would be imposing, the non-appearance by defendant at the original sentencing hearing, and the judge's indication that he was not penalizing defendant for not appearing. In light of this determination, we need not reach the remaining issues presented by defendant.

Reversed and remanded.

Misstated in the plea agreement as a second-degree offense, because the substance was marijuana.

The plea form, which was verbally amended during the plea hearing, erroneously reflected these charges as "possession with intent to distribute."

State v. Santiago, 253 N.J. Super. 197 (App. Div. 1991), aff'd in part, rev'd in part, sub nom. State v. Shaw, 131 N.J. 1 (1993).

(continued)

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A-3773-03T4

January 30, 2006