STATE OF NEW JERSEY v. FRANCEAU BELIZAIRE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1296-02T41296-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANCEAU BELIZAIRE,

Defendant-Appellant.

_____________________________________________________________

 

Submitted September 26, 2006 - Decided October 27, 2006

Before Judges Graves and Lihotz.

On appeal from Superior Court of New Jersey,

Law Division, Union County, Ind. Nos. 98-05-0767,

99-08-1122, 01-03-0273, 01-08-0944, 01-08-0945.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Ruth Bove Carlucci, Assistant

Deputy Public Defender, of counsel and on the

brief).

Anne Milgram, Acting Attorney General, attorney

for respondent (Jeanne Screen, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

Pursuant to a negotiated plea agreement with the State, defendant Franceau Belizaire pled guilty to third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two of Indictment No. 98-05-0767). Defendant was sentenced, consistent with the plea agreement, to a three-year probationary term on September 17, 1999. On November 8, 1999, defendant pled guilty to third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (as charged in Indictment No. 99-08-1122), and he was subsequently sentenced to three-years of probation concurrent with the probationary term he was already serving.

While on probation, the Union County Grand Jury returned three indictments (Nos. 01-08-0944, 01-03-0273, and 01-08-0945), charging defendant with committing additional offenses. On December 10, 2001, defendant entered into a negotiated plea agreement that resolved all of the new charges. Pursuant to the plea agreement, defendant pled guilty to third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(3) (count two of Indictment No. 01-08-0944), and second-degree possession of cocaine with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count three of Indictment No. 01-08-0944). During the plea hearing, the State advised the court that count two would merge with count three. In return for these guilty pleas, the State agreed to recommend that defendant's maximum sentence would be limited to a six-year prison term with thirty-three months of parole ineligibility on count three of Indictment No. 01-08-0944. All other sentences on the two remaining indictments, and any violation of probation charges, were to be served concurrently.

The plea agreement also provided that State v. Subin, 222 N.J. Super. 227 (App. Div.), certif. denied, 111 N.J. 580 (1988), applied. After accepting defendant's guilty plea, the trial court scheduled sentencing for March 8, 2002, and it instructed defendant as follows:

If you get out on bail and you did not appear, I'm advising you that on Indictment 01-08-945, that the Court can sentence you to the maximum of 18 months in prison with a 9-month parole disqualifier. That means if you don't show up for the interview or you don't show up for sentencing, the Court can increase the penalties that the Court will assess. On the other charge, on 01-03-273, [you are] subject to ten-year terms, which is a total of 20 years, the Court can sentence you to 20 years with a ten-year parole disqualifier.

And on the last one, which is 01-08-944, the Court can sentence you also to ten years in prison with a five-year parole disqualifier. Do you understand?

THE DEFENDANT: Yes.

THE COURT: And that means if you do not appear for the presentence report for sentencing, or you are arrested on a new charge, the guilty plea will remain, however, you may be sentenced up to those maximums. You understand?

THE DEFENDANT: Yes.

Defendant failed to appear for sentencing on March 8, 2002, because he had been detained on new charges. On the day he was scheduled to be sentenced at the Union County Courthouse, he remained confined at the Union County jail.

When defendant was sentenced on July 19, 2002, the trial court determined that it was not bound by the plea agreement because defendant failed "to remain arrest free." Even though the State did not argue for a sentence in excess of the plea agreement--six-years in prison with thirty-three months of parole ineligibility--defendant was also sentenced to a consecutive four-year term for violating his previously imposed probationary sentences (Indictment Nos. 98-05-0767 and 99-08-1122), as well as a consecutive eighteen-month prison term for fourth-degree possession of a knife (Indictment No. 01-08-0945). Consequently, defendant received an aggregate sentence of eleven and one-half years in prison with thirty-three months of parole ineligibility.

On appeal, defendant presents two sentencing issues:

POINT I

SINCE THE [STATE v. BRIMAGE, 153 N.J. 1 (1998)] GUIDELINES PROVIDE FOR MANDATORY MINIMUM SENTENCES WHICH ARE BASED ON FACTORS NOT FOUND BY A JURY BEYOND A REASONABLE DOUBT, AND SINCE THESE MANDATORY SENTENCES ARE BINDING ON ALL SENTENCING JUDGES, THEY RUN AFOUL OF THE SIXTH AMENDMENT. THE GUIDELINES MUST THUS BE CONSIDERED AS ADVISORY PROVISIONS THAT RECOMMEND RATHER THAN REQUIRE THE IMPOSITION OF PARTICULAR SENTENCES IN RESPONSE TO DIFFERING SETS OF FACTS, TO BRING THEM INTO CONFORMANCE WITH THE SIXTH AMENDMENT PURSUANT TO UNITED STATES V. BOOKER[, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005)]. FURTHERMORE, THE PRESUMPTIVE SCHEME UPON WHICH THE GUIDELINES ARE BASED DOES NOT CONFORM WITH THE REQUIREMENTS OF STATE V. NATALE, [ 184 N.J. 458 (2005)] THUS ENTITLING DEFENDANT TO A REMAND FOR RESENTENCING. (Not Raised Below)

POINT II

THE SENTENCING JUDGE ABUSED HIS DISCRETION IN INCREASING THE BARGAINED-FOR SENTENCE BECAUSE DEFENDANT INCURRED A NEW CHARGE WHILE OUT ON BAIL WHICH RESULTED IN HIS ARREST AND FAILURE TO APPEAR AT THE ORIGINALLY SCHEDULED SENTENCING DATE[.]

After reviewing the record and applicable law, we conclude that defendant's first point, that the Brimage guidelines "run afoul of the Sixth Amendment," is without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). But we conclude that defendant's second point has merit.

"Both the United States Supreme Court and [the New Jersey Supreme] Court have upheld the constitutionality of statutes that allow judges to impose mandatory-minimum parole ineligibility terms within the sentencing range authorized by the jury verdict." State v. Abdullah, 184 N.J. 497, 509 (2005); see, e.g., Harris v. United States, 536 U.S. 545, 568, 122 S. Ct. 2406, 2420, 153 L. Ed. 2d 524, 545 (2002) (affirming seven-year mandatory-minimum sentence based upon a finding by trial court that defendant had "brandished" a gun during a drug trafficking crime). Because the imposition of a period of parole ineligibility does not increase a sentence beyond the maximum term authorized by the jury's verdict, a parole disqualifier does not violate defendant's federal or state constitutional rights to due process and trial by jury. Abdullah, supra, 184 N.J. at 508-12.

We agree with defendant, however, that the court abused its discretion when it imposed consecutive sentences. Defendant's negotiated plea agreement provided for concurrent sentences and it specified that defendant would be subject to no more than a six-year prison term with thirty-three months of parole ineligibility. In response to question number eleven on the plea form, which asked if defendant understood that the court could impose consecutive sentences if the plea agreement was silent on the issue, defendant selected "N/A" indicating that he believed the question was not applicable.

At the plea hearing, the court properly determined the plea was made voluntarily, there was a factual basis for the plea, and defendant understood the nature of the charges and the consequences of the plea. See R. 3:9-2. The transcript of the December 10, 2001, plea hearing confirms that defendant was neither informed nor did he agree that he was subject to consecutive sentences if he failed to appear for sentencing, or if he was arrested on a new charge. Because defendant was not on notice that he was potentially vulnerable to consecutive sentences, we conclude that it was unfair and unreasonable to impose consecutive sentences. See State v. Subin, supra, 222 N.J. Super. at 238 ("A defendant who pleads guilty in reliance on a promise or agreement of the State has the right to expect that the bargain will be fulfilled. Terms of a plea agreement must be meticulously adhered to . . . .") (citation omitted).

The matter is remanded for resentencing. We do not retain jurisdiction.

 

We note that defendant filed a separate appeal in connection with Indictment Nos. 02-06-813 and 02-06-815 (App. Div. Docket No. A-4064-04T4). On September 19, 2005, we ordered that the two appeals should be calendared back-to-back.

(continued)

(continued)

7

A-1296-02T4

October 27, 2006