(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued February 15, 1994 -- Decided June 8, 1994
GARIBALDI, J., writing for a unanimous Court.
Keith Stewart was charged with three counts of narcotics violations and the disorderly persons
offense of resisting arrest. Pursuant to a plea agreement under N.J.S.A. 2C:35-12 (section 12), Stewart pled
guilty to possession of a controlled dangerous substance with intent to distribute within 1,000 feet of school
property, in violation of N.J.S.A. 2C:35-7 (section 7). As part of the plea agreement, the State dropped other
charges and the court sentenced Stewart on January 21, 1993 to two years probation conditioned on serving
364 days in the county jail.
Shortly after his sentencing, Stewart applied to the Essex County Local Intensive Probation
Supervision Effort (ECLIPSE), an early-release program. On March 25, 1993, over the State's objection, the
court granted Stewart's application to enter ECLIPSE, and he was released from the county jail.
On appeal, the Appellate Division summarily vacated the court's order granting Stewart admission
into ECLIPSE. The Supreme Court granted certification to determine whether a court may divert to
ECLIPSE a defendant who, pursuant to a section 12 plea agreement, pled guilty to a section 7 violation but
who has not yet completed his county-jail sentence.
HELD: The trial court improperly admitted Keith Stewart into the Essex County Local Intensive
Probation Supervision Effort Program because N.J.S.A. 2C:35-12 expressly prohibits a court from
imposing a lesser term of imprisonment than that provided in the plea agreement.
1. A violation under section 7 requires a mandatory minimum term of imprisonment of three years,
with no parole eligibility. Under a section 12 negotiated plea agreement, the mandatory sentence may be
reduced; however, a court cannot impose a lesser term of imprisonment, period of parole ineligibility or fine
than that expressly provided for under the terms of the plea agreement. (pp. 2-4)
2. The ECLIPSE program, which began in 1985, eases overcrowding in the Essex County Jail annex by
placing certain offenders back into the community under intensive probation supervision. The program is
beneficial to Essex County because it saves money, retains jail space for more serious offenders and avoids
the risk of overcrowding. Furthermore, the community service by ECLIPSE participants results in the
completion of necessary work in the public interest. ECLIPSE is modeled after the Intensive Supervision
Program administered by the State Administrative Office of the Courts. Both programs restrict admittance
to non-violent criminals and have similar goals of reducing prison overcrowding, imposing punishment, and
fostering rehabilitation. Despite their advantages, court-administered probation programs may not operate in
a way that conflicts with explicit legislative intent. (pp. 4-6)
3. Section 12 does not differentiate between sentencing proceedings. To allow a court to sentence below the prison term provided in the plea agreement undermines the clear legislative purpose expressed in section 12. Section 12's purpose is achieved only if the defendant receives the sentence required under the plea agreement. A court-administered program that conflicts with the statute exceeds the authority of the judiciary and violates separation of powers principles. When the Legislature mandates a term of imprisonment for a crime, it is intended that the specific sentence of imprisonment be imposed and served. Early release into ECLIPSE would frustrate the legislative intent that defendants actually serve the sentence
imposed pursuant to a plea agreement. A court cannot achieve the legislative goal in encouraging
cooperation between offenders and prosecutors if the court does not enforce the agreement of the parties.
(pp. 6-11)
4. Section 12 is a legislative mandate entitled to enforcement. The ECLIPSE program is a non-legislative-initiated program and the rules for admittance into the program must yield to statutorily-mandated
sentencing. Absent any explicit legislative directive to the contrary, a county may not circumvent the
sentencing mandates of the State, which were originally imposed to foster sentencing uniformity. Once
sentenced to a custodial term, a defendant must serve that term in the absence of a statute to the contrary.
(pp. 11-13)
The Appellate Division's order removing Stewart from the ECLIPSE program is AFFIRMED.
CHIEF JUSTICE WILENTZ and JUSTICES CLIFFORD, HANDLER, POLLOCK, O'HERN and
STEIN join in JUSTICE GARIBALDI's opinion.
SUPREME COURT OF NEW JERSEY
A-
77 September Term l993
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEITH STEWART,
Defendant-Appellant.
_______________________________
Argued February l5, l994 -- Decided June 8, 1994
On certification to the Superior Court,
Appellate Division.
Mordecai Garelick, Assistant Deputy Public
Defender, argued the cause for appellant
(Susan L. Reisner, Acting Public Defender,
attorney).
Debra Cannella, Assistant Prosecutor, argued the
cause for respondent (Clifford J. Minor, Essex
County Prosecutor, attorney; Gary A. Thomas,
Assistant Prosecutor, on the letter brief).
The opinion of the Court was delivered by
GARIBALDI, J.
The State charged defendant, Keith Stewart, with three
counts of narcotics violations and a disorderly persons offense
of resisting arrest. Pursuant to a plea agreement under N.J.S.A.
2C:35-12 (section 12), defendant pled guilty to possession of a
controlled dangerous substance with intent to distribute within
1,000 feet of school property, in violation of N.J.S.A. 2C:35-7
(section 7). As part of that agreement, the State dropped the
other charges, and the court sentenced defendant on January 21,
1993, to two years probation conditioned on serving 364 days in
the county jail.
Shortly thereafter defendant applied to the Essex County
Local Intensive Probation Supervision Effort (ECLIPSE), an early-release program. On March 25, 1993, over the State's vigorous
objection, the court granted defendant's application, and he was
immediately released from the county jail. The sentencing judge,
then acting in his capacity as the judge in charge of that early
release program, granted defendant's application to enter
ECLIPSE.
The Appellate Division summarily vacated the court's order
granting defendant admission into ECLIPSE, citing State v.
Bridges, l3l N.J. 402 (l993). We granted defendant's petition
for certification, l
34 N.J. 479 (l993), to determine whether a
court may divert to ECLIPSE a defendant who, pursuant to a
section l2 plea agreement, pled guilty to a section 7 violation
but who has not yet completed the county-jail sentence.
Section 7 is part of the Comprehensive Drug Reform Act of 1986, N.J.S.A. 2C-35-1 to -23 (Drug Reform Act). The Legislature, in enacting the Drug Reform Act, declared that the public policy of the State provides for "the strict punishment, deterrence and incapacitation of the most culpable and dangerous drug offenders." N.J.S.A. 2C:35-1.1c.
Specifically, defendant pled guilty to violating that
portion of section 7 providing that
[a]ny person [found guilty of] * * *
possessing with intent to distribute a
controlled dangerous substance * * * while on
any school property * * * or within 1,000
feet of such school property * * * is guilty
of a crime of the third degree and shall,
except as provided in N.J.S. 2C:35-12, be
sentenced by the court to a term of
imprisonment. * * * [In cases involving at
least one ounce of marijuana], the term of
imprisonment shall include the imposition of
a minimum term which shall be fixed at * * *
[at least] three years, * * * during which
the defendant shall be ineligible for parole.
A mandatory sentence may be reduced under a negotiated plea
agreement entered pursuant to the terms of section l2. That
section in pertinent part provides that a court
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, a
specified period of parole ineligibility, a
specified fine, or other disposition. In
that event, the court at sentencing shall not
impose a lesser term of imprisonment, period
of parole ineligibility or fine than that
expressly provided for under the terms of the
plea * * * agreement. (Emphasis added.)
The Assembly Judiciary Committee recognized that section l2
permitted waiver of the mandatory terms imposed under the Drug
Reform Act:
The [Drug Reform Act] bill requires the
imposition of mandatory terms of imprisonment
and mandatory terms of parole ineligibility
for the most prolific or repeat offenders.
These mandatory prison terms can only be
waived by a negotiated plea or post-conviction agreement, and where that
agreement expressly so provides, the
defendant cannot receive a lesser term of
imprisonment or fine than that expressly
agreed to. This provision will ensure that
the State, as well as the defendant, receives
the full benefit of a negotiated agreement.
[Judiciary Committee Statement, Assembly Bill
No. 3270 at 3 (Dec. 18, 1986) (emphasis
added) ("Committee Statement").]
By authorizing negotiated plea agreements that waive the
mandatory terms of the Drug Reform Act, the Legislature hoped to
"`encourage offenders to cooperate with law enforcement efforts
to detect, apprehend and successfully prosecute otherwise well-insulated drug traffickers.'" State v. Vazquez, l29 N.J. l89,
204 (l992) (quoting Cannel, New Jersey Criminal Code Annotated,
comment l on N.J.S.A. 2C:35-l (l992)). The Committee emphasized,
however, that if the prosecutor waived the Drug Reform Act's
mandatory terms in the plea agreement, the defendant must then
receive, at a minimum, the agreed-on term in the plea agreement.
Committee Statement, supra, at 3.
Defendant entered into a section l2 plea agreement, pursuant
to which the court sentenced him to two years probation on the
condition that he serve 364 days in county jail. Yet barely more
than two months after defendant had started serving his term of
imprisonment in the county jail, he was admitted into ECLIPSE and
released from jail.
II
The ECLIPSE program, begun in 1985, exists to eliminate
overcrowding at the Essex County Jail Annex by placing selected
offenders back into the community under intensive probation
supervision. Essex County Local Intensive Probation Supervision
Effort Program, Progress Report Covering January through June,
1993, at 4 (1993). The program rests on a belief that probation
is a deterrent to criminal behavior and a rehabilitative tool.
Ibid.
The ECLIPSE program is beneficial to Essex County in a
number of ways. Essex County saves $100.00 per day in
incarceration costs, and by retaining jail space for more serious
offenders, it avoids the risks associated with overcrowding.
Furthermore, community service of ECLIPSE participants results in
the completion of thousands of dollars' worth of necessary work
in court buildings, the sheriff's department, churches,
hospitals, and schools.
ECLIPSE is modeled after the Intensive Supervision Program
(ISP) administered by the State's Administrative Office of the
Courts. In ISP
[a]ll participants must be employed full time, submit
to urine monitoring for alcohol and illegal substance
use; maintain a nightly curfew which is monitored by
ISP officers; perform community service; make regular
payments toward fines, restitution, penalties, support
of dependents, and the cost of being supervised in the
Program; actively participate in treatment programs,
and keep a daily diary and weekly budget of all income
and expenses. They may not collect welfare assistance,
unemployment insurance benefits, or lend or borrow
money.
Both programs restrict admittance to non-violent criminals and
have essentially the same goals of reducing prison overcrowding,
imposing punishment, and fostering rehabilitation.
In spite of their advantages, however, court-administered
probation programs may not be operated in a manner that conflicts
with explicit legislative intent. Id. at 563. Thus, we must
determine whether diversion into ECLIPSE of a defendant who has
pled guilty to a section 7 offense frustrates the Legislature's
intent expressed in section 12.
We hold that the court improperly admitted defendant into the ECLIPSE program because section 12 expressly prohibits a court from imposing a lesser term of imprisonment than that provided in the plea agreement. The language and intent of section l2, which we discussed in Bridges, supra, l3l N.J. at 405-l4, mandates that result.
The defendant in Bridges pled guilty to possession of cocaine with intent to distribute within 1,000 feet of school property in violation of section 12. Bridges' plea agreement, similar to Stewart's, provided for probation conditioned on serving 364 days in county jail. The issue was whether section 12's prohibition against imposing a lesser term of imprisonment than provided for in the plea agreement applied to custodial
terms of less than one year in county jail. l3l N.J. at 414. We
determined that the court was bound to enforce the plea agreement
as written. Ibid.
Stewart argues that Bridges is inapplicable because that
case addressed initial sentencing, whereas ECLIPSE admitted
Stewart in a subsequent proceeding. Section 12, however, does
not differentiate between sentencing proceedings. Its intent is
simply that defendants should receive the sentences to which they
agreed in their negotiated plea agreements. As we observed in
Bridges:
To allow a court to sentence below the prison
term provided in the plea agreement
undermines the clear legislative purpose
expressed in section l2. Prosecutors would
understandably be reluctant to enter into a
section l2 plea agreement knowing that in
addition to the waiver of the mandatory-minimum parole disqualifier, the defendant
could receive only a fraction of the
bargained-for time of incarceration. To
promote cooperation between drug offenders
and law enforcement, therefore, section l2
must be read to limit a court's discretion to
sentence below the agreed-upon term of
imprisonment.
Section 12's purpose, therefore, is achieved only if the defendant receives the sentence required under the plea agreement. If a court initially imposes the sentence required under the plea agreement, only to rescind that sentence a few months later, the court has effectively reduced the sentence
agreed on in the plea agreement. That sentence reduction would
violate section 12.
In Cannon, supra, we considered whether a court could
properly reduce a custodial sentence by releasing a defendant
into the State-run ISP program. Our holding in that case rested
on N.J.S.A. 2C:44-1d and -1f(2), which impose a presumption of
imprisonment for all first- and second-degree offenses, rather
than the section 12 plea-bargaining statute that governs this
case. l28 N.J. at 564-68. Nonetheless, our analysis in Cannon
of separation of powers in sentencing is equally applicable to
this discussion.
Cannon had been convicted of second-degree theft by
deception and sentenced to five years imprisonment. After
serving seven months in prison, she was released from prison and
admitted into ISP. Because ISP exists to permit an inmate's
early release from a custodial term, it is a "sentencing
disposition, albeit a modification of sentence." Id. at 562.
We observed that such a modification of sentence conflicted
with N.J.S.A. 2C:44-1d, which generally requires imprisonment for
all first- and second-degree offenders. It provides that
[t]he court shall deal with a person who has
been convicted of a crime of the first or
second degree by imposing a sentence of
imprisonment unless, having regard to the
character and condition of the defendant, it
is of the opinion that his imprisonment would
be a serious injustice which overrides the
need to deter such conduct by others.
If the sentence of a first- or second-degree offender is
"noncustodial or probationary," then N.J.S.A. 2C:44-1f(2) allows
the prosecutor to appeal the sentence. In resolving the conflict
between the statutes and defendant's early release into ISP, we
deferred to the statutes. That the Legislature has primary power
to determine the punishment for crimes is "simply one of the most
basic understandings of the allocation of governmental powers
among the three branches." Cannon, supra, l28 N.J. at 560.
By enacting N.J.S.A. 2C:44-ld, the Legislature created a
presumption of imprisonment for first- and second-degree
offenders. We held that when the Legislature explicitly mandates
imprisonment, "this Court may not, as an `alternative,' [through
a court-administered program] order release." Id. at 563 n.9.
"[B]y `imprisonment' the Legislature meant not simply the
imposition of a sentence of imprisonment but service of the
statutory sentence, conforming to the statutory mandate." Id. at
565.
That the imprisonment for the second-degree offense was
imposed pursuant to a plea agreement did not affect Cannon's
outcome. A court cannot override the legislative presumption of
imprisonment for all second-degree offenders by admitting a
defendant into ISP, even when imprisonment was imposed pursuant
to a plea agreement, in the absence of a clear legislative
signal.
Both ISP and ECLIPSE are court-administered sentencing
alternatives. Because they affect sentencing, they fall within
an "area over which the Legislature has close to total power:
the power to punish, to deter, to rehabilitate, including the
power to restrict any variations on the methods and options
available for those purposes." Id. at 563. Because of the
Legislature's overriding authority in the area of sentencing,
courts may not apply a non-legislative program in a manner that
conflicts with a statute. Therefore, a court-administered
program that conflicts with a statute exceeds the authority of
the judiciary and violates separation of powers principles.
Furthermore, in Cannon, we determined that when the
Legislature mandates a term of imprisonment for a crime, the
Legislature generally intends not merely the imposition of a
specific sentence of imprisonment but also service of that
sentence. Id. at 565. Thus, we held that release into ISP would
frustrate the legislative intent that first- and second-degree
offenders be imprisoned. Likewise in Stewart's case, release
into ECLIPSE would frustrate the legislative intent that
defendants actually serve the sentence imposed pursuant to a plea
agreement.
Defendant argues that Cannon is distinguishable. N.J.S.A.
2C:44-1d imposes a legislative presumption of imprisonment,
whereas section 12 does not legislatively mandate custody but
instead enables the prosecutor to determine an offender's
custodial sentence. Such prosecutorial discretion, defendant
argues, does not have the force of legislative mandate and
thereby need be followed only at the original sentencing. That
argument fails, however, because the court can achieve the
legislative goal of encouraging cooperation between offenders and
prosecutors only if the court enforces the agreement of the
parties. Reforming a section l2 plea agreement even at a
subsequent stage would frustrate the legislative intent. Section
12 is as much a legislative mandate entitled to enforcement as
N.J.S.A. 2C:44-1(d), the statute central to Cannon.
Defendant also mistakenly relies on Vazquez, supra, to argue
that a court is in fact permitted to "resentence" an offender
after initially abiding by the terms of a plea agreement. The
facts of Vazquez are different. In Vazquez, this Court held that
"resentencing" that involved a change in the offender's custodial
term imposed pursuant to a plea bargain was permissible once the
defendant violated the terms of probation. We determined that
the prosecutor's ability under section 12 to mold the actual
sentence terminates once an offender violates the terms of the
original agreement. l29 N.J. at 20l.
We based our holding in Vazquez, however, on N.J.S.A. 2C:45-3b. That statute provides that a court resentencing a defendant
for a violation of probation "may impose on the defendant any
sentence that might have been imposed originally for the offense
for which he [or she] was convicted." The re-sentencing
determination was within the court's, not the prosecutor's,
discretion, pursuant to a statute requiring the court to weigh
the aggravating and mitigating factors to determine the
appropriate punishment. Our holding that a court could
resentence a defendant after defendant violated the terms of his
or her probation was, therefore, tied to the explicit legislative
intent as expressed in N.J.S.A. 2C:45-3b.
Defendant also argues that when he was admitted to ECLIPSE,
he only had fifty-two more days to serve before he would have
been paroled pursuant to N.J.S.A. 30:4-l23. Parole eligibility
after serving one-third of one's sentence is another statutory
limit on the prosecutor's powers. Such release on parole,
however, "is precisely what the Legislature intended." Cannon,
supra, l28 N.J. at 566. Prosecutors are aware of that statutory
provision and take it into account when negotiating plea
agreements. The ECLIPSE program, in contrast, is a non-legislative-initiated program, and the rules for admittance into
the program must yield to statutorily-mandated sentencing.
In Cannon, we stayed our opinion to give the Legislature the opportunity to amend its statutes to permit the early release of first- and second-degree offenders into ISP. In response, the Legislature passed L. 1993, c. 123, which provided that under certain conditions, second-degree offenders could be eligible for the ISP program. If the Legislature determines that counties
should have the discretion to shorten the custodial term of an
inmate sentenced pursuant to a plea agreement, it can provide for
that as well. Absent such an explicit legislative directive,
however, a county may not circumvent the sentencing mandates of
the State, which were originally imposed to foster uniformity in
punishing criminals.
Once sentenced to a custodial term, a defendant must serve
that term in the absence of a statute to the contrary. See e.g.
N.J.S.A. 30:4-123.51a (permitting parole eligibility after
serving one third of sentence).
The Appellate Division's order removing Stewart from the
ECLIPSE program is hereby affirmed.
Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, and Stein join in this opinion.