State of New Jersey v. Shaquille A. Nance , 442 N.J. Super. 268 ( 2015 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5715-12T3
A-0479-13T3
A-0715-13T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v. APPROVED FOR PUBLICATION
SHAQUILLE A. NANCE a/k/a September 8, 2015
NANCE SHAQUILLE A, a/k/a
APPELLATE DIVISION
NANCE SHAQUILLE,
Defendant-Appellant.
______________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TAJA L. WILLIS-BOLTON a/k/a
TAJA BOLTON, a/k/a TAJA WILLIS,
a/k/a TAJ BOLTON, a/k/a TAJ
WILLIS, a/k/a TAJ WILLISBOLTON,
a/k/a TAJA WILLISBOLTON,
Defendant-Appellant.
_______________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALVIN D. WILLIAMS,
Defendant-Appellant.
________________________________
Argued February 3, 2015 – Decided September 8, 2015
Before Judges Fisher, Accurso and Manahan.
On appeal from the Superior Court of New
Jersey, Law Division, Mercer County,
Indictment No. 12-11-0195 in A-5715-12;
Monmouth County, Indictment No. 12-02-0380
in A-0479-13; and Union County, Indictment
No. 11-04-0471 in A-0715-13.
Ruth E. Hunter, Designated Counsel, argued
the cause for appellant Shaquille A. Nance
(Joseph E. Krakora, Public Defender,
attorney; Ms. Hunter, on the brief).
Daniel I. Bornstein, Deputy Attorney
General, argued the cause for respondent in
A-5715-12 (John J. Hoffman, Acting Attorney
General, attorney; Mr. Bornstein, of counsel
and on the brief).
Ruth E. Hunter, Designated Counsel, argued
the cause for appellant Taja L. Willis-
Bolton (Joseph E. Krakora, Public Defender,
attorney; Ms. Hunter, on the brief).
Paul H. Heinzel, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent in A-0479-13
(Christopher J. Gramiccioni, Acting Monmouth
County Prosecutor, attorney; Mr. Heinzel, of
counsel and on the brief).
Brian P. Keenan, Assistant Deputy Public
Defender argued the cause for appellant
Alvin D. Williams (Joseph E. Krakora, Public
Defender, attorney; Mr. Keenan, of counsel
and on the brief).
Sara B. Liebman, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent in A-0715-13 (Grace
H. Park, Acting Union County Prosecutor,
attorney; Ms. Liebman, of counsel and on the
brief).
2 A-5715-12T3
The opinion of the court was delivered by
MANAHAN, J.S.C. (temporarily assigned).
In these consolidated Graves Act cases, we consider
whether, after a motion for waiver by the State, the sentencing
judge had the discretion to impose a probationary term or was
mandated to impose a one-year parole disqualifier pursuant to
the plea agreement. As we have determined that N.J.S.A. 2C:43-
6.2 (the "escape valve" statute) provides for judicial
discretion, we reverse and remand for resentencing.
Defendant Shaquille A. Nance appeals from his sentence to a
three-year prison term with a period of parole ineligibility for
one year. On March 6, 2012, Nance possessed a sawed-off 12-
guage Winchester shotgun inside his Trenton home. A State Grand
Jury charged Nance with third-degree conspiracy to possess and
dispose of prohibited weapons, N.J.S.A. 2C:5-2 (count one);
third-degree unlawful possession of a sawed-off shotgun,
N.J.S.A. 2C:39-3b (count two); third-degree unlawful possession
of a weapon, N.J.S.A. 2C:39-5c(1) (count three); and third-
degree unlawful disposition of a weapon, N.J.S.A. 2C:39-9b
(count four).
Nance pled guilty to third-degree possession of a sawed-off
shotgun. The prosecutor recommended five years with one-year
mandatory parole ineligibility. At the plea, the court held the
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sentence was subject to approval by the Presiding Judge.
Thereafter, the Presiding Judge approved the plea and returned
the case to the trial judge whose calendar the case was assigned
for the sentence. During the sentence, defense counsel asked
the sentencing judge to consider sentencing Nance below the
State's recommendation. When the sentencing judge inquired
whether he could modify the sentence in favor of the defendant,
the prosecutor responded that the judge did not have the
authority to impose a lesser sentence.1
Defendant Taja L. Willis-Bolton appeals from his sentence
to a three-year prison term with a period of parole
ineligibility for one year. On December 13, 2011 Willis-Bolton
possessed a .25 caliber handgun without a license. A Monmouth
County Grand Jury charged Willis-Bolton with second-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5b. At the
plea, the judge told Willis-Bolton he "would have to serve one
year prior to being eligible to be released on parole[.]"
Willis-Bolton entered a guilty plea and was sentenced in
1
At the sentence, defense counsel asked the judge "to consider
modifying the sentence[.]" The judge asked the prosecutor,
"[D]o you believe I have the authority to do that under the
Graves Act?" The prosecutor responded "I don't believe you do.
It's my understanding that the State modified it from a five
with a three to a five with a one, and the [Presiding Judge]
signed off on that. I don't believe that your Honor can modify
it any further."
4 A-5715-12T3
accordance with the plea to a three-year prison term with one
year of parole ineligibility.
Defendant Alvin D. Williams appeals from his sentence to a
three-year prison term with a period of parole ineligibility for
one year. On January 9, 2011, Williams possessed a firearm
without a permit. A Union County Grand Jury charged Williams
with third-degree terroristic threats, N.J.S.A. 2C:12-3b (count
one); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4)
(count two); second-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4a (count three); and second-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b
(counts four and five). Pursuant to a plea agreement, Williams
pled guilty to count four. The matter was not referred to the
assignment judge with the option of imposing either the one-year
minimum term of parole ineligibility or probation. Williams was
sentenced to a three-year prison term with one year of parole
ineligibility.2
2
In a Memorandum dated November 21, 2008, the Acting
Administrative Director of the Courts, at the direction of the
Chief Justice, clarified that while statutory language indicates
that motions for waiver of, or reductions to, the otherwise
mandatory minimum terms of imprisonment or parole ineligibility
required pursuant to the Graves Act are to be made by the
Prosecutor to the Assignment Judge, that responsibility is
delegable by the Assignment Judge to the criminal presiding
judge, pursuant to inherent authority and the Rules of Court.
(continued)
5 A-5715-12T3
On appeal, each defendant raises the same arguments:
POINT I
PURSUANT TO THE PLAIN LANGUAGE OF N.J.S.A.
2C:43-6.2, AND THIS COURT'S OPINION IN STATE
V. GINTY, 243 N.J. SUPER. 39, 42-43 (APP.
DIV. 1990), THE JUDGE HAD DISCRETION TO
SENTENCE DEFENDANT TO PROBATION AFTER THE
PROSECUTOR CONSENTED TO REFER THE MATTER FOR
A REDUCTION OF THE GRAVES ACT MANDATORY
MINIMUM TERM.
POINT II
DEFENDANT IS ENTITLED TO A REMAND UNDER
STATE V. KOVACK, 91 N.J. 476 (1982), BECAUSE
HE WAS MISINFORMED THAT THERE WAS A
MANDATORY MINIMUM PAROLE INELIGIBILITY TERM
OF ONE YEAR.
Pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), any person
convicted of the unlawful possession of a firearm, N.J.S.A.
2C:39-5(b), "shall be sentenced to a term of imprisonment . . . ."
At all times relevant to the facts in this case, the Graves Act
further required that "[t]he term of imprisonment shall include
the imposition of a minimum term[,] . . . fixed at, or between,
one-third and one-half of the sentence imposed by the court or
three years, whichever is greater . . . during which the
defendant shall be ineligible for parole." N.J.S.A. 2C:43-6(c).
(continued)
Although not specifically referenced in the Memorandum, we
presume that the responsibility for sentencing may also be
delegated to the criminal presiding judge. R. 1:33-6(a). We
are uncertain whether the delegation extends to other judges
assigned to the Criminal Division.
6 A-5715-12T3
In 1989, the Legislature enacted N.J.S.A. 2C:43-6.2. The
purpose of the amendment was to allow the trial courts to
exercise greater discretion sentencing first-time firearms
offenders, where the imposition of the mandatory minimum terms
required by the Graves Act were deemed to be "unnecessarily and
unproductively harsh." Cannel, New Jersey Criminal Code
Annotated, comment 2 on N.J.S.A. 2:43-6.2 (2014).
In State v. Alvarez, 246 N.J. Super. 137, 142 (App. Div.
1991), we held that the assignment judge is to make the
sentencing "in-out" decision, i.e., "whether probation or a one-
year ineligibility term is to be imposed" under N.J.S.A. 2C:43-
6.2. See State v. Mastapeter, 290 N.J. Super. 56, 64 (App.
Div.), certif. denied, 146 N.J. 569 (1996). In Alvarez, we
concluded the Graves Act escape valve "was constitutional
because the assignment judge has the ultimate authority to
decide whether the prosecutor arbitrarily or unconstitutionally
discriminated against a defendant in determining whether the
'interests of justice' warrant reference to the assignment
judge." Alvarez, supra, 246 N.J. Super. at 147 (emphasis
added); see State v. Ginty, 243 N.J. Super. 39, 41 (App. Div.
1990); see also Cannel, New Jersey Criminal Code Annotated,
comment 2 on N.J.S.A. 2C:43-6.2 (2014) ("[A] prosecutor's
decision not to pursue or endorse an application . . . will not
7 A-5715-12T3
be disturbed on appeal unless arbitrary, capricious, or unduly
discriminatory.").
In State v. Watson, 346 N.J. Super. 521 (App. Div. 2002), a
Graves Act case, we referenced the sentence options when a
prosecutorial waiver is granted: "a reduced mandatory minimum
term of one year, or to place the defendant on probation with
the condition of a jail term pursuant to N.J.S.A. 2C:43-2b(2)."
Id. at 535.
Predicated upon our review of the record, each judge
sentenced the respective defendant as though they had no
discretion to sentence other than to that stated in the plea
agreement. To the contrary, we conclude, as we did in Alvarez
and Watson, the escape valve statute vests discretion with the
sentencing judge to impose either a one-year minimum term of
parole ineligibility or probation conditioned on a custodial
term upon the motion for a waiver or after a prosecutor approved
referral. Therefore, to the extent the State argues the
sentencing judge was specifically bound by the plea agreement's
terms, we disagree.
In State v. Vasquez, 129 N.J. 189 (1992), our Supreme Court
addressed the issue of mandatory sentences:
Mandatory sentences usually allow for
no judicial discretion. See, e.g., State v.
Jefimowicz, 119 N.J. 152, 162 (1990)
(sentencing standards applicable to
8 A-5715-12T3
discretionary extended terms do not apply to
Graves Act because "[t]here is nothing
discretionary about this determination");
State v. Towey, 114 N.J. 69, 80, 82 (1989)
(no judicial discretion in mandatory
sentencing structure of Graves Act; State v.
Des Marets, 92 N.J. 62, 80 (1983)
(Legislature can limit the judiciary's
discretion to sentence by prescribing
mandatory minimum terms for offenses
committed with firearms).
[Id. at 199.]
However, as noted, these were not "mandatory sentences"
notwithstanding that the bounds of the judge's authority was
limited to two sentence options. Further, the plea agreements
were not "contract pleas." See State v. Bridges, 131 N.J. 402,
414 (1993); see also State v. Thomas, 392 N.J. Super. 169, 174
(App. Div. 2007) ("[T]he trial court erred by imposing a lower
sentence than that negotiated between the State and defendant
pursuant to the Brimage Guidelines3 and N.J.S.A. 2C:35-12[.]").
Unlike N.J.S.A. 2C:35-12, the escape valve statute does not
expressly or implicitly limit the sentencing judge's ability to
sentence a defendant to a lesser sentence provided for under the
plea agreement, nor does it require the judge to reject the
bargain should the judge conclude the plea is not in the
interest of justice. See State v. Leslie, 269 N.J. Super. 78,
84 (App. Div. 1993), certif. denied, 136 N.J. 29 (1994). In
3
See State v. Brimage, 153 N.J. 1 (1998).
9 A-5715-12T3
criminal matters not subject to a "contract plea" the "parties
can agree only on a sentence that the prosecutor will
'recommend' to the court; they are not empowered to negotiate a
sentence that can have any binding effect." State v. Warren,
115 N.J. 433, 442 (1989).
We recognize the role of the prosecutor in making charging
decisions and in extending plea offers. We also recognize that
the Attorney General may adopt policies relating to those
charging decisions. Indeed, in 2008, after the Legislature
amended the Graves Act to expand its scope, the Attorney General
issued a "Directive to Ensure Uniform Enforcement of the Graves
Act," ("Directive") published on October 23, 2008 and corrected
on November 25, 2008. Among other things, the Directive
addressed the policy of the Attorney General in the prosecutor's
waiver determinations. The Directive, though binding on
prosecutors' charging decisions, did not bind the court in the
exercise of its discretionary sentencing in waiver cases.
Our decision does not alter the prosecutor's role as an
advocate for the State at sentence. In that role, the
prosecutor is free to argue, after waiver or referral, for the
imposition of the mandatory minimum term of one year and the
base term of the custodial sentence within the authorized range
10 A-5715-12T3
for the offense, and defense counsel is free to argue for the
imposition of probation.4
Nor does our decision alter the judge's role at
sentencing. In the determination of which sentence option to
impose, the judge is required to state the reasons for the
sentence. In doing so, the judge must, among other
considerations, reference "the mitigating and aggravating
factors . . . to bring rationality to the process and minimize
disparate sentencing." State v. Natale, 184 N.J. 458, 488
(2005).
Finally, we are not concerned that our decision today may
result in a "revised" plea policy by the State that reduces
prosecutorial waiver motions or approvals to a referral. As we
have often noted, in different contexts, the prosecutor's role
is "to see that justice is done." State v. Frost, 158 N.J. 76,
83 (1999); State v. Spano, 64 N.J. 566, 568 (1974). We remain
confident that in carrying out that role, the State would employ
a plea policy on Graves Act escape valve cases that reflects
both the statute's legislative intent and the public interest of
securing a just outcome.
4
We note that if a probationary term is imposed, there must be a
custodial aspect to the sentence. See Watson, supra, 346 N.J.
Super. at 535.
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The judgments under review in these consolidated cases are
reversed and remanded.
12 A-5715-12T3