STATE OF NEW JERSEY v. ROBERT W. OLIVER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5851-09T1

A-0593-10T1

A-1505-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT W. OLIVER,

Defendant-Appellant.

___________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEITH D. CLARKE, GILES BROOME,

ROBERT BOYD, FLOYD A. CARROLL,

ERIK CRUZ, SHADEED DOTSON,

RAHMEER EDWARDS, JAVIER GONZALEZ,

GARY HOBJEN, WILTON KEARNEY,

ANTHONY LEWIS, AARON D. LOFLAND,

RAFAEL MARRERO, ELPIDIO MOLINA,

ERNESTO RAMOS, ELIECER A. REYES,

CRISTOBAL RIVAS, LAMAR ROLAX,

EMANUEL ROMERO, MICHAEL SAUNDERS,

ANTHONY SEALY, JOSEPH D. SEWELL,

LANDES C. SMITH, TRAVIS STANBACK,

HARRY STEVENS, ERNESTO TORRES,

JUAN VEGA, JESSIE VELASQUEZ, AND

ROBERT WASHINGTON,

Defendants-Appellants.

______________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RUDELL ANDERSON,

Defendant-Appellant.

_________________________________

August 18, 2011

 

Argued August 10, 2011 - Decided

 

Before Judges J. N. Harris and Fasciale.

 

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 09-01-00222 and 09-03-00662 (Docket Nos. A-5851-09T1 and A-1505-10T2); Camden County, Indictment Nos. 08-12-3796, 08-10-3186, Acc. 09-08-2658, 09-07-2490, 08-09-2747, 10-04-1093, 08-09-2989, Acc. 08-07-2193, 09-05-1681, 09-05-1922, 09-04-1220, 09-05-1727, Acc. 09-02-771, Acc. 09-10-3427, 09-04-1557, 09-04-1639, Acc. 09-09-3238, Acc. 08-04-1278, 09-04-1427, 09-03-1039, Acc. 09-07-2499, Acc. 09-01-0142, 09-05-1876, 07-08-2521, 09-05-1650, 08-10-353, 08-05-1798, 07-02-0511 and 09-04-1561 (Docket No. A-0593-10T1).

Stephen P. Hunter, Assistant Deputy Public Defender, argued the cause for appellants (Joseph E. Krakora, Public Defender, attorney; Mr. Hunter, on the briefs).

 

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent in A-5851-09T1 (Courtney M. Cittadini, Assistant County Prosecutor, of counsel and on the brief).

 

Mary E. McAnally, Deputy Attorney General, argued the cause for respondents (Paula T. Dow, Attorney General, attorney for respondents in A-0593-10T1 and 1505-10T2; Ms. McAnally, of counsel and on the briefs).

PER CURIAM

These back-to-back appeals, which we consolidate for purposes of this opinion, all implicate the same legal question: is a defendant eligible to apply for resentencing pursuant to the 2010 amendments1 to N.J.S.A. 2C:35-7 if such defendant received a Brimage2 waiver of an extended term or reduction of a mandatory minimum term under N.J.S.A. 2C:35-12? From our review of the record in these cases, we find that such a defendant is eligible to apply for resentencing, but the ultimate result of that reconsideration process is not determined by this opinion.

I.

A.

Defendant Robert W. Oliver (A-5851-09T1) was convicted of third-degree possession of a controlled dangerous substance (cocaine) within 1,000 feet of school property. N.J.S.A. 2C:35-7. In connection with an agreed-upon plea arrangement, the State waived a motion for enhanced sentencing under N.J.S.A. 2C:43-6(f) pursuant to the Brimage Guidelines. Oliver was sentenced to five years incarceration, with thirty-three months to be served before becoming eligible for parole.

Oliver appealed his sentence pursuant to Rule 2:9-11, and the matter was submitted as part of the Excessive Sentencing Oral Argument (ESOA) program. The ESOA panel heard the matter within one month following the effective date of L. 2009, c. 192. It issued an order for remand stating:

This matter is remanded to the trial court for reconsideration of the parole ineligibility bar in light of the amendments to N.J.S.A. 2C:35-7 that became effective on January 12, 2010, L. 2009, c. 192, 1 (specifying four factors to be considered by the sentencing court in determining whether the parole ineligibility bar otherwise required by N.J.S.A. 2C:35-7(a) should be waived). Jurisdiction is not retained.

Pursuant to the mandate of the remand, the Law Division conducted a resentencing hearing in which it determined that because Oliver had been eligible for the imposition of a mandatory extended term under N.J.S.A. 2C:43-6(f), "the waiver of the parole ineligibility under the new statute does not kick into play because of defendant's prior record." Accordingly, the sentencing court imposed "the exact same sentence as was [previously] imposed," writing on the judgment of conviction:

Motion for appellate remand denied.

Sentence reaffirmed.

This appeal followed.

 

B.

In July 2010, defendant Keith D. Clarke and twenty-eight others (A-0593-10T2) filed motions for resentencing pursuant to N.J.S.A. 2C:35-7a. The Law Division consolidated the matters and framed the common question as whether defendants who were the beneficiaries of waivers of extended terms under N.J.S.A. 2C:43-6(f) are eligible to seek reconsideration of their sentences pursuant to revised N.J.S.A. 2C:35-7. The court indicated that

[t]he defendants seeking reconsideration are those who were serving a mandatory minimum sentence on January 12, 2010, the date of the enactment of the amendments to N.J.S.A. 2C:35-7, and who were eligible at sentencing for an extended term sentence under N.J.S.A. 2C:43-6(f) on account of a previous conviction for distribution or possession with intent to distribute a controlled dangerous substance.

After considering the views of the parties, the court ruled that such defendants, because of the Brimage waivers, were not eligible to apply for reconsideration of their sentences under the 2010 statutory amendments. This appeal followed.

C.

Defendant Rudell Anderson (A-1505-10T2) was convicted of third-degree possession of a controlled dangerous substance (cocaine) within 1,000 feet of school property. N.J.S.A. 2C:35-7. As part of a plea arrangement, the State agreed to a Brimage waiver of a mandatory extended term under N.J.S.A. 2C:43-6(f), and Anderson was sentenced to a five-year term of incarceration, with twenty-seven months to be served before becoming eligible for parole.

Anderson moved for resentencing pursuant to N.J.S.A. 2C:35-7a. Having previously noted that "[t]his is a Brimage case with a Brimage stip," the Law Division held that Anderson was not eligible for resentencing because she had previously been convicted of a violation of N.J.S.A. 2C:35-5(a)(1). The court explained,

[w]hat we're trying to explain to [defendant] is that they did pass some modifications to the Brimage Act [sic], but excepted or exempted from that are people who have prior distributions. In other words, if [defendant is] Brimage[-eligible] because of a prior record [defendant] [does not] come under the confines of the new law.

 

Accordingly, the court entered an order denying Anderson's motion. This appeal followed.

II.

As noted, we consolidated these appeals for purposes of this opinion because they present nearly identical issues. In the Clarke and Anderson matters, defendants argue the following:

POINT I: BECAUSE THE TRIAL COURT FAILED TO APPLY THE CORRECT STANDARDS OF N.J.S.A. 2C:35-7a IN RULING ON DEFENDANTS' RESENTENCING MOTIONS AND MISCONSTRUED THE PLAIN LANGUAGE OF N.J.S.A. 2C:35-7B, THIS COURT SHOULD REVERSE AND REMAND THE MOTIONS FOR FULL CONSIDERATION ON THE MERITS.

 

Oliver's appellate argument echoes the foregoing, but adds a specific claim relating to the remand by the ESOA panel:

POINT I: BECAUSE THE TRIAL COURT FAILED TO APPLY THE CORRECT STANDARDS OF N.J.S.A. 2C:35-7a, MISCONSTRUED THE PLAIN MEANING OF N.J.S.A. 2C:35-7B, AND DISREGARDED THE APPELLATE DIVISION'S PREVIOUS ORDER TO RECONSIDER THE PAROLE INELIGIBILITY TERM IN THIS MATTER, THIS COURT SHOULD EXERCISE ITS DISCRETION AND REMOVE DEFENDANT'S PAROLE INELIGIBILITY TERM.

 

A.

Effective January 12, 2010, the Comprehensive Drug Reform Act of 1987, N.J.S.A. 2C:35-1 to 36A-1 (CDRA), was supplemented with the addition of N.J.S.A. 2C:35-7a, which provides as follows:

Notwithstanding any court rule limiting the time period within which a motion to reduce or change a sentence may be filed, any person who, on the effective date of this act, is serving a mandatory minimum sentence as provided by section 1 of P.L.1987, c.101 (C.2C:35-7) and who has not had his sentence suspended or been paroled or discharged may move to have his sentence reviewed by the court. If the court finds that the sentence under review does not serve the interests of justice, the judge may re-sentence the defendant pursuant to subsection b. of section 1 of P.L.1987, c.101 (C.2C:35-7). In determining whether the sentence under review serves the interests of justice, the court shall consider all relevant circumstances, including whether the defendant pleaded guilty pursuant to a negotiated agreement, and whether the prosecution has agreed to dismiss one or more charges which, upon conviction, would have subjected the defendant to the presumption of imprisonment under subsection d. of [N.J.S.A.] 2C:44-1. The determination by the court shall not be subject to appeal.

 

[N.J.S.A. 2C:35-7a.]

 

The purpose of the amendatory statute has been to enable individuals who were sentenced pursuant to the stricter, pre-2010 provisions of N.J.S.A. 2C:35-7 to seek the benefit of lenity provided by the Legislature's contemporaneous implementation of N.J.S.A. 2C:35-7(b):

b. (1) Notwithstanding the provisions of [N.J.S.A.] 2C:35-12 or subsection a. of this section, the court may waive or reduce the minimum term of parole ineligibility required under subsection a. of this section or place the defendant on probation pursuant to paragraph (2) of subsection b. of [N.J.S.A.] 2C:43-2. In making this determination, the court shall consider:

 

(a) the extent of the defendant's prior criminal record and the seriousness of the offenses for which the defendant has been convicted;

 

(b) the specific location of the present offense in relation to the school property, including distance from the school and the reasonable likelihood of exposing children to drug-related activities at that location;

 

(c) whether school was in session at the time of the offense; and

 

(d) whether children were present at or in the immediate vicinity of the location when the offense took place.

 

(2) The court shall not waive or reduce the minimum term of parole ineligibility or sentence the defendant to probation if it finds that:

 

(a) the offense took place while on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or while on any school bus; or

 

(b) the defendant in the course of committing the offense used or threatened violence or was in possession of a firearm.

 

If the court at sentencing elects not to impose a minimum term of imprisonment and parole ineligibility pursuant to this subsection, imposes a term of parole ineligibility less than the minimum term prescribed in subsection a. of this section, or places the defendant on probation for a violation of subsection a. of this section, the sentence shall not become final for 10 days in order to permit the prosecution to appeal the court's finding and the sentence imposed. The Attorney General shall develop guidelines to ensure the uniform exercise of discretion in making determinations regarding whether to appeal a decision to waive or reduce the minimum term of parole ineligibility or place the defendant on probation.

 

Nothing in this subsection shall be construed to establish a basis for overcoming a presumption of imprisonment authorized or required by subsection d. of [N.J.S.A.] 2C:44-1, or a basis for not imposing a term of imprisonment or term of parole ineligibility authorized or required to be imposed pursuant to subsection f. of [N.J.S.A.] 2C:43-6 or upon conviction for a crime other than the offense set forth in this subsection.

 

[N.J.S.A. 2C:35-7(b).]

 

For purposes of this appeal, the parties focus their attention upon the final paragraph of N.J.S.A. 2C:35-7(b). The State claims that the reference to "[n]othing in this subsection shall be construed to establish . . . a basis for not imposing a term of imprisonment or term of parole ineligibility authorized or required to be imposed pursuant to subsection f. of [N.J.S.A.] 2C:43-6" serves as an insurmountable bar an eligibility disqualifier to defendants' motions for resentencing. The State suggests that "[t]he lenity afforded by N.J.S.A. 2C:35-7[(b)] was not meant to apply to repeat-drug dealers, who are subject to a mandatory minimum term of imprisonment and parole ineligibility under a separate and distinct portion of the Comprehensive Drug Reform Act." Said another way, the State contends that defendants "should not be able to get a double reduction in sentence when [defendants have] already gotten . . . the benefit of a Brimage recommendation and sentence. The legislature certainly didn't intend them to get a second benefit in view of the fact of their prior history."

Contrariwise, defendants assert that the statutory language of N.J.S.A. 2C:35-7(b) does not act as a resentencing disqualifier, but rather is "intended to affect other sentencing provisions in the criminal code that authorize or require a sentencing judge to impose a term of imprisonment or a term of parole ineligibility." They argue that the separate provision for resentencing, N.J.S.A. 2C:35-7a without an express bar aimed at repeat drug offenders mandates that those moving for resentencing at least be heard on the merits. Thus, according to defendants, being a beneficiary of a Brimage waiver is but one of the "relevant circumstances" that a resentencing court must take into account "[i]n determining whether the sentence under review serves the interests of justice." N.J.S.A. 2C:35-7a.

B.

The question presented to us is one of statutory interpretation, which we consider de novo. In re Liquidation of Integrity Ins. Co., 193 N.J. 86, 94 (2007). Because the statute is a penal statute, we construe it strictly. State v. Vasquez, 129 N.J. 189, 200 (1992). "[O]ur primary goal in interpreting a statute is to discern the meaning and intent of the Legislature, which is generally best indicated by the statutory language." Bank of New York v. Laks, ___ N.J. Super. ___, ___ (App. Div. 2011) (slip op. at 11). "'[I]t is not the function of this Court to rewrite a plainly-written enactment of the Legislature or [] presume that the Legislature intended something other than that expressed by way of the plain language.'" State v. Smith, 197 N.J. 325, 332 (2009) (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005) (alteration in original)).

Employing these principles, we find no ambiguity in the statute. We further conclude that the 2010 statute's explicit provision allowing incarcerated defendants to apply for resentencing was intended to extend to any person "who, on the effective date of [L. 2009, c. 192], is serving a mandatory minimum sentence as provided by [N.J.S.A. 2C:35-7] and who has not had his sentence suspended or been paroled or discharged," N.J.S.A. 2C:35-7a, including defendants who had already benefited from the largess of the State in the various prosecutors' waivers of the effect of N.J.S.A. 2C:43-6(f).

In State v. Hill, 327 N.J. Super. 33 (App. Div. 1999), certif. denied, 164 N.J. 188 (2000) we noted the following:

The mandatory extended-term statute for repeat drug offenders, N.J.S.A. 2C:43-6(f), was enacted as part of the Comprehensive Drug Reform Act of 1987 (Drug Act). N.J.S.A. 2C:35-1 to -23 and N.J.S.A. 2C:36-1 to -9; see State v. Kirk, 145 N.J. 159, 166 (1996). The articulated objectives of the Drug Act, set out in its "Declaration of Policy and Legislative Findings," include the "imposition of a uniform, consistent and predictable sentence for a given offense . . . [as] an essential prerequisite to [a] rational deterrent scheme designed ultimately to reduce the incidence of crime." N.J.S.A. 2C:35-1.1(a); Kirk, 145 N.J. at 166-67. The Drug Act focuses on the punishment and deterrence of serious and dangerous offenders and thus "target[s] for expedited prosecution and enhanced punishment those repeat drug offenders and upper echelon members of organized narcotics trafficking networks who pose the greatest danger to society." N.J.S.A. 2C:35-1.1(c); Kirk, 145 N.J. at 167. By providing strict punishment for repeat offenders, the Legislature sought to reduce the demand for illegal drugs and the incidence of drug-related crime. Ibid.

 

Therefore, "[t]he legislative objective of section 6f is to impose lengthy prison terms on repeat drug offenders as 'the norm rather than the exception.'" Kirk, 145 N.J. at 174, (quoting State v. Lagares, 127 N.J. 20, 32 (1992)). . . .

 

Based on the articulated objectives of the Legislature, the enhanced sentencing provision of the Drug Act, N.J.S.A. 2C:43-6(f), is, by its very terms, deterrence-oriented, directed at defendants who have "demonstrat[ed] an escalating pattern of drug activity." See Kirk, 145 N.J. at 166-167, 171; Haliski, 140 N.J. at 9; State in the Interest of M.G., 307 N.J. Super. at 354.

 

[Id. at 40-42.]

 

Accordingly, we place much weight in the argument advanced by the State regarding a plausible basis to find repeat drug offenders ineligible for resentencing, notwithstanding the plain language of N.J.S.A. 2C:35-7a.

However, we also note that once a prosecutor has waived the parole disqualifier of N.J.S.A. 2C:35-7, its mandatory imposition is no longer applicable, as a matter of law, upon resentencing for a violation of probation. Vasquez, supra, 129 N.J. at 200. Finding that the Legislature did not make clear its intention to have the mandatory parole disqualifier apply at violation of probation sentencing, the Court was unwilling to impute that intention to lawmakers. Id. at 201. Although we understand that the sentencing scheme for violations of probation3 may not be identical to resentencing under newly-minted N.J.S.A. 2C:35-7a, the express legislative directives concerning how and when a stern N.J.S.A. 2C:35-7 sentence should be adjusted do not exempt those defendants for whom a prosecutor waived the sanctions of N.J.S.A. 2C:43-6(f).

Clearly, a defendant who appears for initial sentencing having either entered a guilty plea to a violation of a crime outlined in N.J.S.A. 2C:35-7(a), or having been convicted of such a crime by a jury, and for whom the prosecutor has moved to enhance the sentence pursuant to N.J.S.A. 2C:43-6(f), is not affected by the new sentencing options available under N.J.S.A. 2C:35-7(b). Upon the application of the prosecutor, and subject to competent proof of the predicate prior conviction, the sentencing court must grant the motion for an extended term and include a minimum term. N.J.S.A. 2C:43-6(f); State v. Thomas, 188 N.J. 137, 150 (2006); Brimage, supra, 153 N.J. at 11; State v. Lagares, 127 N.J. 20, 31 (1992). The 2010 statute continues this scheme: "[n]othing in this subsection shall be construed to establish . . . a basis for not imposing a term of imprisonment or term of parole ineligibility authorized or required to be imposed pursuant to subsection f. of [N.J.S.A.] 2C:43-6." N.J.S.A. 2C:35-7(b).

The State argues that the word "authorized," followed by the disjunctive "or" in the same sentence means that as long as a defendant was eligible for enhanced sentencing under N.J.S.A. 2C:43-6(f), even if a prosecutor deployed a Brimage waiver and did not seek such enhanced sentencing, such a defendant is likewise unaffected by N.J.S.A. 2C:35-7(b), and cannot apply for resentencing under the 2010 law. The State's argument essentially transforms the word "authorized" relating to the authority of the court to sentence a defendant into the word "eligible," which refers to the status of a defendant. We view this position as untenable and contrary to the plain language of N.J.S.A. 2C:35-7a, which expressly provides for resentencing and contains no bar to resentencing based upon previous Brimage-validated waivers of an extended term.

Although we do not necessarily subscribe to defendants' interpretation of the "authorized or required" language in the context of resentencing (equating "authorized" with "required," at least for purposes of N.J.S.A. 2C:43-6(f)), we find that the plain language of N.J.S.A. 2C:35-7a trumps N.J.S.A. 2C:35-7(b), and is not inconsistent with the overall goals of the CDRA. Merely permitting incarcerated defendants who satisfy the contours of N.J.S.A. 2C:35-7a to seek resentencing does not guaranty that resentencing judges will, in fact, reduce their minimum terms of incarceration. Indeed, we fully expect that a defendant's receipt of N.J.S.A. 2C:43-6(f) waivers will be considered by a resentencing judge as part of "all relevant circumstances" relating to whether defendant's sentence should be adjusted.

Accordingly, we reverse the determinations made in the Law Division with respect to defendants' motions for resentencing.4 We remand the matters for further proceedings consistent with this opinion. Our opinion is not intended to foretell the ultimate outcome of defendants' motions, which must be decided on a case-by-case basis in accordance with the statutory standards of the CDRA as amended and supplemented.

Reversed and remanded. We do not retain jurisdiction.

 

1 See L. 2009, c. 192, 1, effective on January 12, 2010. The 2010 legislation resulted in the renumbering of N.J.S.A. 2C:35-7 into several subsections and the creation of a separately numbered provision for resentencing, N.J.S.A. 2C:35-7a.

2 See State v. Brimage, 153 N.J. 1 (1998) (holding that plea-bargaining guidelines for drug offenses then in existence were inconsistent from county to county, and directed the Attorney General to develop uniform statewide guidelines, now known as the Brimage Guidelines).

3 See State v. Baylass, 114 N.J. 169 (1989); State v. Molina, 114 N.J. 181 (1989).

4 Because of this determination, we need not address Oliver's separate claim that the Law Division violated the mandate of the ESOA remand.