STATE OF NEW JERSEY v. TONY O. BRINSON

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION

     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3235-15T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

TONY O. BRINSON, a/k/a
MAPLES GREGORY,

     Defendant-Appellant.
_____________________________

              Argued November 13, 2017 – Decided January 24, 2018

              Before Judges Messano and Vernoia.

              On appeal from Superior Court of New Jersey,
              Law Division, Ocean County, Indictment No. 14-
              02-0450.

              James K. Smith, Jr., Assistant Deputy Public
              Defender, argued the cause for appellant
              (Joseph E. Krakora, Public Defender, attorney;
              James K. Smith, Jr., of counsel and on the
              briefs).

              John C. Tassini, Assistant Prosecutor, argued
              the cause for respondent (Joseph D. Coronato,
              Ocean County Prosecutor, attorney; Samuel
              Marzarella, Chief Appellate Attorney and John
              C. Tassini, on the brief).

PER CURIAM
     Defendant Tony O. Brinson appeals from his sentence following

his conviction for second-degree distribution of cocaine.          We

affirm the court's imposition of an eight-year custodial term,

vacate the court's imposition of a forty-one-month period of parole

ineligibility and remand for resentencing.

                                I.

     Defendant was charged in an indictment with third-degree

possession of a controlled dangerous substance (CDS), cocaine,


N.J.S.A. 2C:35-10(a)(1) (count one);    third-degree distribution

of cocaine, 
N.J.S.A. 2C:35-5(a)(1) and 
N.J.S.A. 2C:35-5(b)(3)

(count two);   third-degree possession of cocaine, 
N.J.S.A. 2C:35-

10(a)(1) (count three); third-degree distribution of cocaine,


N.J.S.A. 2C:35-5(a)(1) and 
N.J.S.A. 2C:35-5(b)(3) (count four);

and second-degree distribution of cocaine, 
N.J.S.A. 2C:5-(a)(1) and


N.J.S.A. 2C:35-5(b)(2) (count five).   The charges were founded on

two alleged sales of cocaine to an undercover police officer.

     Defendant    was   previously   convicted    of   third-degree

distribution of CDS, 
N.J.S.A. 2C:35-5(a)(1).     As a result, if he

was convicted of any of the possession with intent or distribution

charges (counts one, two, four or five) in the indictment, he was

eligible for sentencing, upon application by the State, to a

mandatory extended term sentence and minimum period of parole

ineligibility pursuant to 
N.J.S.A. 2C:43-6(f).

                                 2                          A-3235-15T4
     Defendant negotiated a plea agreement with the State.                   The

agreement required that defendant plead guilty to second-degree

distribution of CDS as charged in count five.                 The State agreed

to recommend an eight-year custodial sentence and forty-one-month

period of parole ineligibility and dismissal of the remaining

charges.     The State also agreed not to request imposition of an

extended term sentence under 
N.J.S.A. 2C:43-6(f).

     The     record    shows      the   parties    understood       defendant's

conviction for distribution exposed him to a mandatory extended

term sentence and period of parole ineligibility under 
N.J.S.A.

2C:43-6(f).       Prior to the entry of defendant's plea, the State

prepared a Plea Negotiation Worksheet in accordance with the

Attorney General guidelines issued pursuant to our Supreme Court's

decision in State v. Brimage, 
153 N.J. 1 (1998).                 The worksheet

showed defendant's "[m]ost serious Brimage-eligible offense" was

for second-degree distribution, and defendant's conviction for the

offense subjected him to a mandatory extended term sentence under


N.J.S.A. 2C:43-6(f).

     Defendant's plea form also shows the parties anticipated

defendant would enter his plea in accordance with the Brimage

guidelines.       The form expressly states "THIS IS A NEGOTIATED PLEA

PURSUANT     TO    BRIMAGE,"   followed     by    the    notation     "(8/41),"

indicating    the    eight-year    custodial     term   and   forty-one   month

                                        3                               A-3235-15T4
period of parole ineligibility the parties agreed would be the

sentence imposed.    The plea form lists the "[s]tatutory [m]aximum"

sentence that could be imposed under "BRIMAGE" was "20/10," an

extended term of twenty years with a ten-year period of parole

ineligibility for a second-degree offense.               In the "Supplemental

Plea Form for Drug Offenses," defendant acknowledged that he "and

the [p]rosecutor entered into an[] agreement to provide for a

lesser sentence or period of parole ineligibility than would

otherwise be required[.]"

      During the plea proceeding, the prosecutor advised the court

that the parties "negotiated a plea pursuant to Brimage," and

defense counsel agreed.      The court explained to defendant that his

maximum    sentencing    exposure   was       twenty-years     with   a    ten-year

period of parole ineligibility, he was "Brimage eligible," and the

State agreed to recommend that he be sentenced to eight years with

a forty-one-month period of parole ineligibility.                         The court

accepted    defendant's     plea    to       second-degree     distribution        in

accordance with the plea agreement.

      At the sentencing proceeding, defense counsel acknowledged

this is a "Brimage case," but asked the court to impose a sentence

less severe than the negotiated sentence.               The prosecutor advised

the   court,   without    objection,     that     the   plea   arrangement       was

"negotiated . . . according to State v. Brimage," and requested

                                         4                                  A-3235-15T4
imposition of the negotiated sentence.        The prosecutor also argued

that the judge could not reduce the negotiated sentence "under the

guidelines of State v. Brimage," and the court agreed.              The court

imposed the negotiated sentence "pursuant to Brimage." This appeal

followed.

     Defendant presents the following argument:

            BECAUSE   BOTH   ATTORNEYS   AND   THE   JUDGE
            INCORRECTLY BELIEVED THAT THE SENTENCE IN THIS
            CASE WAS BEING IMPOSED PURSUANT TO N.J.S.A.
            2C:35-12 and STATE v. BRIMAGE, 
153 N.J. 1,
            (1998), THE MATTER SHOULD BE REMANDED FOR A
            RESENTENCING.

                                   II.

                                    A.

     Prior to addressing defendant's argument, we summarize some

well-established    principles    governing    sentencing     for    offenses

under the Comprehensive Drug Reform Act of 1987 (CDRA), 
N.J.S.A.

2C:35-1 to 36-1.     The CDRA was enacted to "provide for the strict

punishment, deterrence and incapacitation of the most culpable and

dangerous drug offenders."         Brimage, 
153 N.J. at 8 (quoting


N.J.S.A. 2C:35-1.1).    To that end, the CDRA provides for mandatory

sentences    and   periods   of   parole     ineligibility    for    various

offenses.    Ibid.; see, e.g., 
N.J.S.A. 2C:43-6(f) (providing for a

mandatory    extended    term     sentence     and   period     of     parole

ineligibility upon the request of the prosecutor for certain


                                    5                                 A-3235-15T4
second-time drug offenders); see also State v. Bridges, 
252 N.J.

Super. 286, 291 (App. Div. 1991) (summarizing CDRA provisions

establishing ordinary and extended term sentences and periods of

parole ineligibility).

     The CDRA provides an exception to the otherwise mandatory

sentences and periods of parole ineligibility.       
N.J.S.A. 2C:35-12

permits a prosecutor "through a negotiated plea agreement . . .

[to] waive the minimum mandatory sentence specified for any offense

under the CDRA."   Brimage, 
153 N.J. at 3.    The statute "relieve[s]

certain defendants accused of drug crimes from the act's mandatory

prison sentences and periods of parole ineligibility" otherwise

required under the CDRA.      State v. Thomas, 
253 N.J. Super. 368,

373 (App. Div. 1992).

      "[T]he   purpose   of   
N.J.S.A.   2C:35-12   is   to   permit   the

prosecutor to make an agreement 'which provides for a lesser

sentence or [lesser] period of parole ineligibility' within the

'range of ordinary or extended sentences authorized by law" for

violating the [CDRA].'"       Bridges, 
252 N.J. Super. at 290-91.

Permitting the State to negotiate a waiver of the CDRA's mandatory

sentencing requirements provides "incentives for defendants to

cooperate with law enforcement authorities," "encourage[s] plea

bargaining," and promotes "the prompt disposition of drug-related

criminal charges and . . . imposition of punishment."           State v.

                                   6                              A-3235-15T4
Thomas, 
392 N.J. Super. 169, 178 (App. Div. 2007) (citing Brimage,


153 N.J. at 9).

     Plea   agreements   under   
N.J.S.A.   2C:35-12     are   governed     by

Attorney General Guidelines that were mandated by our Supreme

Court in Brimage. 
153 N.J. at 24-25; see Revised Attorney General

Guidelines for Negotiating Cases Under 
N.J.S.A. 2C:35-12 (July 15,

2004).   The guidelines are intended to provide uniform standards

for plea offers for CDRA offenses, and reduce the chance of

disparity   in   sentencing.     Brimage,   
153 N.J.    at   13.     Thus,

negotiated plea agreements under 
N.J.S.A. 2C:35-12 must be made

in accordance with the Brimage guidelines.        Id. at 24-25.

     In pertinent part, 
N.J.S.A. 2C:35-12 provides:

            Whenever an offense defined in this chapter
            specifies a mandatory sentence of imprisonment
            which includes a minimum term during which the
            defendant shall be ineligible for parole, [or]
            a mandatory extended term which includes a
            period of parole ineligibility, . . . the
            court upon conviction shall impose the
            mandatory sentence . . . unless the defendant
            has pleaded guilty pursuant to a negotiated
            agreement . . . which provides for a lesser
            sentence, [or] period of parole ineligibility
            . . . . The negotiated plea . . . agreement
            may   provide   for   a   specified  term   of
            imprisonment within the range of ordinary or
            extended sentences authorized by law, [or] a
            specified period of parole ineligibility . .
            . . In that event, the court at sentencing
            shall   not   impose    a   lesser   term   of
            imprisonment, [or] lesser period of parole
            ineligibility . . . than that expressly


                                   7                                 A-3235-15T4
               provided for under the terms of the plea or
               post-conviction agreement.

               [N.J.S.A. 2C:35-12.]

       The plain language of the statute limits a court's sentencing

discretion where a plea agreement provides for a custodial sentence

or minimum period of parole ineligibility less than otherwise

mandated by the CDRA.              "[A] trial judge who accepts a plea

agreement in which the State recommends a sentence less severe

than the sentence mandated by the [CDRA] may not impose an even

lesser sentence."           Thomas, 
253 N.J. Super. at 373; see also

Brimage, 
153 N.J. at 9 (finding that 
N.J.S.A. 2C:35-12 requires

the    sentencing     court   to     impose       the   negotiated   sentence     "and

prohibits the court from imposing a lesser term of imprisonment

than that specified in the agreement").                      "However, unless the

prosecutor's recommendation is for a 'lesser sentence or period

of    parole    ineligibility'       than    the    [CDRA]    mandates,   [N.J.S.A.

2C:35-12]      does   not    limit   a   judge's        sentencing   discretion     to

accepting or rejecting the recommendation."                     Thomas, 
253 N.J.

Super. at 374.

                                            B.

       Here,     defendant     argues       the    sentencing    court    erred     by

rejecting his request for imposition of a less severe sentence

because it erroneously believed 
N.J.S.A. 2C:35-12 required that


                                            8                               A-3235-15T4
it impose the negotiated sentence. Defendant asserts that 
N.J.S.A.

2C:35-12    applies    only    where   a   negotiated   plea    includes     a

recommendation   for    the    imposition   of   sentence   less    than    an

otherwise mandatory sentence under the CDRA, and that he was

subject to a mandatory sentence and period of parole ineligibility

under 
N.J.S.A. 2C:43-6(f) only if the State requested an enhanced

sentence.   He reasons that because the State agreed not to request

the enhanced sentence, he was not subject to a mandatory CDRA

sentence and therefore the court erred by finding 
N.J.S.A. 2C:35-

12 limited its sentencing discretion.         We are not persuaded.

     Defendant's argument requires a determination of N.J.S.A.

2C:35-12's application to the circumstances presented here.                 We

turn first, as we must, to the statute's plain language because

that is the best indicator of legislative intent.              DiProspero v.

Penn, 
183 N.J. 477, 492 (2005).             We "read and construe[]" a

statute's words and phrases "with their context," giving them

"their generally accepted meaning, according to the approved usage

of the language," "unless inconsistent with the manifest intent

of the legislature or unless another or different meaning is

expressly indicated."         
N.J.S.A. 1:1-1; see also State v. Regis,


208 N.J. 439, 447 (2011).

     
N.J.S.A. 2C:35-12 applies "[w]henever an offense defined in

this chapter specifies a mandatory sentence of imprisonment . . .

                                       9                             A-3235-15T4
[or] period of parole ineligibility . . . ." (emphasis added).

The statute was enacted as part of the CDRA in chapter 106 of the

laws of 1987.      See L. 1987, c. 106, ¶ 1.         The statute therefore

applies where the CDRA "specifies" a mandatory sentence or parole

ineligibility period for an offense.          
N.J.S.A. 2C:35-12.

       Our Supreme Court has found that "'[s]pecify' means to name

in a specific or explicit manner; to state precisely or in detail,

to point out, to particularize, or to designate by words one thing

from another."      Carteret Properties v. Variety Donuts, Inc., 
49 N.J. 116, 124 (1967).        Applying that definition here, we are

satisfied defendant pleaded guilty to an offense for which the

CDRA   specified   a   mandatory   sentence    and   parole   ineligibility

period.

       
N.J.S.A. 2C:43-6(f) is part of the CDRA, State v. Lagares,


127 N.J. 23, 35 (1992), and was enacted in the same chapter of the

laws of 1987 as 
N.J.S.A. 2C:35-12, see L. 1987, c. 106 ¶ 12.


N.J.S.A. 2C:43-6(f) identifies in a specific manner CDRA offenses

for which mandatory sentences and periods of parole ineligibility

shall be imposed on the prosecutor's request.                 See State v.

Patterson, 
435 N.J. Super. 498, 516 (App. Div. 2014) (noting that


N.J.S.A. 2C:43-6(f) includes a "list of offenses eligible for a

mandatory   extended    term");    Cannel,    New    Jersey   Criminal   Code

Annotated, cmt. 6 on 
N.J.S.A. 2C:43-6(f) (2017) ("The sentencing

                                    10                               A-3235-15T4
provision    added     [in    N.J.S.A.     2C:43-6(f)]        requires    mandatory

minimum    or   parole    ineligibility         terms    for    those    previously

convicted of certain offenses . . . .").

      More particularly, 
N.J.S.A. 2C:43-6(f) provides that where,

as here, a defendant with a prior conviction for distribution of

CDS   is   convicted     of   a   second      offense   the    court    "shall   upon

application of the prosecuting attorney be sentenced . . . to an

extended term . . . , notwithstanding that extended terms are

ordinarily discretionary with the court."                     The statute further

provides the custodial term "shall, except as may be provided in


N.J.S.A. 2C:35-12, include . . . a minimum term," "fixed at, or

between, one-third and one-half of the sentence imposed . . . or

three years, whichever is greater . . . ."                
N.J.S.A. 2C:43-6(f).

We are therefore satisfied defendant pleaded to an offense for

which the CDRA specifies a mandatory extended term and parole

ineligibility period.         See 
N.J.S.A. 2C:35-12 and 
N.J.S.A. 2C:43-

6(f).

      Application of 
N.J.S.A. 2C:35-12 is not conditioned upon the

otherwise necessary request by the State under 
N.J.S.A. 2C:43-6(f)

for imposition of a mandatory extended term sentence and parole




                                         11                                 A-3235-15T4
ineligibility period.
1 N.J.S.A. 2C:35-12 applies only where the

State and a defendant enter into a plea agreement involving an

offense for which the CDRA specifies a mandatory sentence or period

of parole ineligibility.    As noted, 
N.J.S.A. 2C:43-6(f) specifies

a mandatory extended term sentence and parole ineligibility period

for second-degree distribution of CDS under the circumstances

presented here.

     We reject defendant's contention he was not subject to the

mandatory sentencing requirements of 
N.J.S.A. 2C:43-6(f) because

the State agreed not to request imposition of the mandatory

sentence.   
N.J.S.A. 2C:35-12 expressly allows the State to bargain

away its right to require imposition of mandatory sentences, and



1
   The Brimage guidelines provide that the State must "formally
apply for an extended term pursuant to 
N.J.S.A. 2C:43-6(f) where
it is necessary to "'structure' the plea agreement to permit
imposition   of  the   sentence   prescribed"   by  the   required
calculations. Revised Attorney General Guidelines, at 10-11 and
35. The prosecutor is required to structure the plea agreement
where "the aggravating circumstances . . . accumulate in a single
case" such that the authorized disposition under the guidelines
"exceed[s] the maximum term of parole ineligibility that could
actually be imposed as a matter of law upon conviction of a single
count."   Id. at 35.    Here, the authorized disposition, which
included a forty-one month period of parole ineligibility, did not
exceed the maximum period of parole ineligibility of five years
that could be imposed as a matter of law for defendant's second-
degree offense.   See 
N.J.S.A. 2C:43-6(b).     Thus, there was no
requirement that the State structure the plea agreement under
Section 3.2 of the guidelines and formally apply for an extended
term under 
N.J.S.A. 2C:43-6(f).


                                 12                         A-3235-15T4
that    the     statute's   purpose    is    to   permit   the   State   to   waive

mandatory sentences for CDRA offenses as an incentive for drug

offenders to cooperate with law enforcement and to permit the

efficient handling of CDRA cases.             See Thomas, 
392 N.J. Super. at
 178; Bridges, 
252 N.J. Super. at 290-91; see also Cannel, New

Jersey Criminal Code Annotated, cmt. 4 on 
N.J.S.A. 2C:35-12 (2017)

(quoting 1987 Legislative Assembly Judiciary Committee Commentary

to the Comprehensive Drug Reform Act).

       Defendant's argument ignores that he pleaded in accordance

with the Brimage guidelines.                The Brimage worksheet, the plea

forms and colloquy show defendant entered into a Brimage plea

subject to the requirements of 
N.J.S.A. 2C:35-12.                   His assertion

that counsel and the court were confused about the applicability

of 
N.J.S.A. 2C:35-12 is a contrivance that is contradicted by the

record.       Indeed, defendant has not sought relief from his plea

agreement based on any purported confusion or misunderstanding

about     its    terms   and   conditions.          The    record    indisputably

establishes he entered into the agreement pursuant to 
N.J.S.A.

2C:35-12 and in accordance with the Brimage guidelines.

       The State's agreement not to request the imposition of an

extended term under 
N.J.S.A. 2C:43-6(f) did not render 
N.J.S.A.

2C:35-12      inapplicable.      The    agreement     simply     constituted    the

State's waiver of a mandatory sentence otherwise specified for

                                        13                                A-3235-15T4
defendant's offense.        The State's agreement to waive a mandatory

CDRA sentence is not inconsistent with 
N.J.S.A. 2C:35-12 and does

not render it inapplicable. To the contrary, the State's agreement

to waive an otherwise mandatory sentence is an essential ingredient

of a negotiated plea agreement under 
N.J.S.A. 2C:35-12.                That is

precisely what occurred here.

     We next consider whether the court sentenced defendant in

accordance with the statute's requirements.            Under 
N.J.S.A. 2C:43-

6(f),     the   mandatory     extended    term    sentence   specified      for

defendant's conviction for second-degree distribution offense is

from ten to twenty years.        See 
N.J.S.A. 2C:43-7(a)(3) and -7(c).

Defendant's      plea   agreement   provided     for   a   lesser   custodial

sentence of eight years.          The court was therefore required to

impose the eight-year sentence pursuant to the plea agreement.


N.J.S.A. 2C:35-12; see also Thomas, 
253 N.J. Super. at 373 (finding

that where the court accepts a plea agreement recommending a

sentence less than that mandated by the CDRA, the court "may not

impose an even lesser sentence").          The court's imposition of the

eight-year custodial term is affirmed.

     Under      
N.J.S.A.    2C:43-6(f),   the    minimum   mandatory    parole

eligibility period for defendant's conviction was one-third of the

minimum mandatory extended term sentence of ten years, or forty

months.    Defendant's plea agreement included a recommended parole

                                     14                                A-3235-15T4
ineligibility period of forty-one months, a term one month greater

than the minimum parole ineligibility period otherwise specified

by 
N.J.S.A. 2C:43-6(f).       Where a plea agreement provides for a

sentence greater than that specified by the CDRA for the offense,


N.J.S.A. 2C:35-12 does not limit the court's sentencing authority,

and the judge retains discretion to impose a lesser term.            Thomas,

253   N.J.   Super.   at   374;   see    also   Revised   Attorney   General

Guidelines, at 12 (stating that where the guidelines "require a

prosecutor to tender a plea offer that is greater than the minimum

term of parole ineligibility that the court is required to impose

by law, then the Brimage offer becomes . . . a non-binding

sentencing recommendation to the court, which the court [is] free

to accept or reject").

      The court erred in concluding it was bound by 
N.J.S.A. 2C:35-

12 to impose the negotiated parole ineligibility period.                    We

therefore    vacate    the    court's      imposition     of   the    parole

ineligibility period and remand for resentencing to permit the

court to consider the parole ineligibility term.               See 
N.J.S.A.

2C:43-6(b) (providing general standard for imposition of a parole

ineligibility term).       We do not offer an opinion on the parole

ineligibility period, if any, that should be imposed.




                                    15                               A-3235-15T4
    Affirmed in part, vacated in part and remanded for further

proceedings consistent with this opinion.   We do not retain

jurisdiction.




                             16                        A-3235-15T4