STATE OF NEW JERSEY v. MICHAEL H. BOESCH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2289-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL H. BOESCH a/k/a

MICHAEL HENRY BOESCH,

Defendant-Appellant.

__________________________________

Telephonically Argued August 31, 2010 Decided September 14, 2010

Before Judges Simonelli and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 07-10-415.

William Strazza argued the cause for appellant.

Dit Mosco, Assistant Prosecutor, argued the cause for respondent (Thomas S. Ferguson, Warren County Prosecutor, attorney; Ms. Mosco, of counsel and on the brief).

PER CURIAM

Defendant Michael H. Boesch pled guilty to first-degree possession of marijuana with intent to manufacture, involving fifty or more plants, contrary to N.J.S.A. 2C:35-5(a)(1) and (b)(10)(a); and second-degree possession of a weapon in the course of committing a drug offense, contrary to N.J.S.A. 2C:39-4.1(a). Pursuant to a plea bargain governed by the Attorney General's Brimage Guidelines,1 he was sentenced to twelve years in prison with a forty-five month period of parole ineligibility on the first-degree offense, and a consecutive five years flat on the second-degree offense. The remaining three counts were dismissed as part of the plea agreement.2

The indictment arose out of Boesch's arrest on July 9, 2007, after aerial and ground surveillance disclosed that he was growing marijuana on his property in Warren County. At the time of the arrest, the police found approximately 250 marijuana plants growing on Boesch's property. During the search of his home after his arrest, Boesch assisted the police in locating a shotgun, which he asserted he had used in the past for hunting.

At the time of his plea, July 10, 2008, Boesch also entered into a cooperation agreement with the State. The cooperation agreement contained the following provisions:

3. The defendant has agreed to cooperate with the State. The defendant understands that cooperation does not merely mean good faith effort but rather includes and is not limited to making telephone calls, introducing undercover police officers, and controlled buys of dangerous substances while wearing an audio intelligence recording device. The defendant agrees the complete performance of the conditions of this agreement is the only acceptable conclusion contemplated by this agreement. Partial performances and good faith efforts will not be accepted and will not be considered as fulfillment of the terms of this agreement. The State's evaluation of the defendant's performance is final. Partial credit for any work completed by the defendant is entirely within the State's sole discretion. Good faith efforts by the defendant are irrelevant unless the State chooses to allow credit thereof.

4. If the defendant's cooperation does not produce results of substantial value to law enforcement, as determined by the Warren County Prosecutor's Office, the defendant will be sentenced in accordance with paragraph 2 of this agreement.

5. The State agrees that, in the event that the defendant assists in an investigation that results in a first degree arrest, the State will recommend that the defendant receive a 12 month credit on the mandatory minimum of 45 months that the defendant is exposed to on a Brimage plea offer.

Pursuant to the agreement, sentencing was to be deferred for sixty days.

The sentencing took place on November 7, 2008. Although he had received more than the required sixty-day period between the plea and sentencing, Boesch sought an adjournment of the sentencing to allow further time for cooperation. Despite the requirements of Rule 1:2-1, the adjournment application took place during an off-the-record conference in the judge's chambers. The State opposed the adjournment and the judge denied the request.

Defense counsel acknowledged that the sentencing judge's hands were

somewhat tied, if not completely and only tied with regard to the forty-five-month stip that you have to give him.

And that's what I have to say about his sentence. I ask, Judge, most respectfully, that he be allowed to spend some . . . more time with his family. I know he's had a lot of time. He hasn't gotten in any trouble while he's been out. So he can spend, . . . at least the Thanksgiving holiday with his family, if not Christmas.

He's not going anywhere. He's always been here. Even when I'm not here he's been here, Judge. He's right in town at the Bagelsmith if we need him. And I'm asking that you adjourn the sentence [past] -- at least Thanksgiving, Judge, so he can have at least that with his family and then he's going to have to look at this entire . . . very massive sentence. Having made mistakes as a young man. Having completed, essentially, probation once, PTI once, and actually considering he's a candidate that does do well in those situations, but then ten years later, you know, because of his misapprehension of our laws and some very poor decision making on his behalf and the factual scenario that didn't lend itself to a trial or case for him in this courtroom here I stand and here he sits waiting for Your Honor to pass a sentence that I know you . . . really have no control over. It is what it is and there's really nothing I can do about it.

And I normally wouldn't speak like this on a [BRIMAGE] sentence, Judge, but this is one of those ones that I just can't wrap my mind around. It brings a tear to my eye, literally, to have to stand here. And I've come to know Michael over the . . . period of time. It's almost been two years since I've know[n] him now, and he is just literally the nicest guy you could meet, who made a really bad decision.

The fact that a gun was in the house is just blind poor luck. I mean, a gun registered to his grandfather or someone else. It's just amazing how the facts lined up against him in the case, and I m just so sorry for him. I think I did the best job I could for him. I mean, this is the best -- I literally had to take whatever plea offer is offered in this case because there's really no way around it.

Although the judge apparently felt sympathy for Boesch, describing his situation as a "perfect storm" because the large number of marijuana plants elevated the drug offense to the first-degree level and the possession of the weapon required a consecutive sentence, he nevertheless accepted the plea agreement and imposed the agreed upon sentence and the forty-five month period of parole ineligibility that the Brimage guidelines required.

Boesch appeals the sentence. He presents the following points on appeal:

POINT I: THE PLEA GUIDELINES EMERGING FROM STATE V. BRIMAGE ("THE BRIMAGE GUIDELINES") MUST BE DEEMED ADVISORY BY SENTENCING COURTS.

POINT II: THE STATE BREACHED ITS AGREEMENT WITH MR. BOESCH AND AS A RESULT, THE COURT COULD NOT PROPERLY CONSIDER ALL APPLICABLE MITIGATING FACTORS.

Neither issue was raised before the sentencing judge.

With respect to the first point, we held in State v. Thomas, 392 N.J. Super. 169, 180-81 (App. Div.), certif. denied, 192 N.J. 597 (2007) that a sentencing judge cannot impose a lesser sentence or period of parole ineligibility than that agreed upon by the parties to a Brimage plea, although the judge does have the authority to reject the plea agreement itself. We decline Boesch s invitation to revisit our holding in Thomas.

With respect to the second point, there is nothing in the record to support Boesch's contention that his efforts of cooperation satisfied the terms of the cooperation agreement, which required that he provide information leading to "a first degree arrest." It is our understanding that Boesch initially asked for an adjournment of the sentencing to allow more time for cooperation because he had not, as of the date of sentencing, satisfied those requirements. As noted, he was accorded more than the required sixty days between the plea and sentencing. At sentencing, no argument was made that he had actually satisfied the requirements of the agreement. Consequently, we find no merit to his contention in that regard.

1 State v. Brimage, 153 N.J. 1 (1998).

2 One of the dismissed counts charged Boesch with possession of a weapon after having been convicted of a felony in Pennsylvania, contrary to N.J.S.A. 2C:39-7(b), which would have carried a five-year minimum term with a five-year minimum period of parole ineligibility.