(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).
STATE OF NEW JERSEY V. OSCAR LEE KIRK (A-130-95)
Argued March 26, 1996 -- Decided July 10, 1996
COLEMAN, J., writing for a unanimous court.
The issue before the Court is whether the trial court properly exercised its discretion in finding that
a prosecutor did not act arbitrarily in declining to waive imposition of an extended term sentence under the
guidelines promulgated pursuant to State v. Lagares.
N.J.S.A. 2C:43-6f (section 6f) is the mandatory extended term statute for repeat drug offenders.
Under section 6f, one who has been previously convicted of manufacturing, distributing, dispensing or
possessing with intent to distribute a controlled dangerous substance may, on application of the prosecutor,
be sentenced by the court to an extended term. Conviction in another state of an offense that is substantially
equivalent to an offense covered by this statute satisfies the definition of prior conviction.
State v. Lagares addressed the constitutionality of section 6f. Section 6f was considered
constitutionally infirm because it vested unfair discretion in the prosecutor in violation of the separation of
powers doctrine. To cure that constitutional defect, the Court interpreted the statute to require that
guidelines be adopted to assist prosecutorial decision-making with respect to applications for enhanced
sentences. In order to provide for effective judicial review, Lagares requires that prosecutors state on the
record their reasons for seeking an enhanced sentence. Moreover, pursuant to Lagares, an extended term
may be denied or vacated where a defendant has established that the prosecutor's decision to seek the
enhanced sentence was an arbitrary and capricious exercise of prosecutorial discretion.
On April 20, 1992, in response to the holding in Lagares, the Attorney General issued statewide
guidelines governing the State's decision to apply for enhanced sentencing under section 6f. The guidelines
require prosecutors to: establish the existence of the defendant's prior drug offense; provide written
notification to both the court and the defendant of the State's intention to apply for an extended term; and
state on the record their reasons for refusing to waive an extended term. In addition, the guidelines outline
the factors on which a prosecutor may rely as a basis for waiving an enhanced sentence.
Oscar Lee Kirk and Linette Barber were travelling with Barber's two children on Route 80 when
their car was stopped by a state trooper because Kirk was driving erratically. A consent search of the car
revealed three wrapped packages containing a total of six and one-half pounds of cocaine, and a locked
briefcase containing $8,000 in cash. In August 1990, a jury convicted Kirk of third-degree possession of
cocaine and first-degree possession of six and one-half pounds of cocaine with the intent to distribute. The
State's motion for an extended term pursuant to section 6f was granted. Kirk was sentenced to an extended
term of fifty years of imprisonment with twenty-five years of parole ineligibility.
On appeal, the Appellate Division affirmed Kirk's conviction but remanded for reconsideration of the sentence because Kirk had been sentenced before the promulgation of the guidelines required by the Court in Lagares. On remand, the sentencing court reimposed the identical sentence and Kirk again appealed. The Appellate Division reversed, finding that the trial court abused its discretion by not overruling the prosecutor's refusal to waive the imposition of an enhanced sentence. The Court's reversal was based on
the fact that Kirk did not serve a prison term for either of his two prior New York drug offenses and that he
was passing through New Jersey on an interstate highway at the time of the present offense.
The Supreme Court granted the State's petition for certification.
HELD: Oscar Lee Kirk failed to establish by clear and convincing evidence that he was entitled to a waiver
of an extended term sentence; therefore, the trial court properly exercised its discretion in finding
that the prosecutor did not act arbitrarily in declining to waive imposition of an extended term
sentence.
1. Kirk's 1988 conviction in New York of third-degree attempted sale of cocaine to an undercover police
officer satisfies the section 6f requirement of a prior drug conviction. Therefore, Kirk qualifies for an
extended term sentence. Moreover, the prosecutor sufficiently explained his reasoning on the record and
cited ample evidence to support his interpretation of the guidelines. Thus, Kirk failed to meet the heavy
burden that a defendant must bear to prove that the State's decision to deny leniency was arbitrary and
capricious. (pp. 7-10)
2. The Appellate Division erred in considering the lack of prior imprisonment as a basis for concluding that
the trial court abused its discretion in failing to overrule the prosecutor's refusal to waive the enhanced
sentence. The language of section 6f refers only to previous convictions and makes no exceptions for a
conviction that does not result in a prison term. (pp. 10-11)
3. The Attorney General Guidelines cure the constitutional infirmity found in Lagares in respect of section
6f. Those guidelines vest the judiciary with the authority to make the ultimate determination of the sentence
to be imposed. The legislative objective of section 6f is to impose lengthy prison term on repeat drug
offenders. Widening the latitude of prosecutorial waiver discretion by incorporation an "interest of justice"
standard, as urged by Kirk, would contravene that legislative goal. Nonetheless, the Attorney General
Guidelines to some extent have incorporated some of the spirit of the "interests of justice" standard. The
"catch-all" provision authorizes prosecutors to waive enhanced sentencing based on the existence of
compelling extraordinary circumstances. That provision operates in much the same way as the "interests of
justice" standard in that it provides prosecutors and reviewing courts with a basis for safeguarding the
defendant from an imposition of an extended term where principles of justice would not be served.
Ultimately, the prosecutor's application of the guidelines is reviewed by the sentencing court under an
arbitrary and capricious standard. That judicial review protects defendants against prosecutorial abuse of
discretion in the application of enhanced sentencing. It also preserves the delicate balance of powers
mandated by the New Jersey Constitution, thereby remedying the constitutional defect inherent in section 6f.
(pp. 11-15)
4. Kirk's sentence violates some basic sentencing guidelines under the Code. Although the trial court
exercised its discretion and imposed the presumptive base term of fifty years, it imposed the maximum term
of parole ineligibility as though a life term had been imposed. Ordinarily, a severe parole ineligibility term
should be imposed in conjunction with base terms that exceed the presumptive term. The trial court offered
no explanation to justify the absence of any balance between the presumptive base term and the maximum
twenty-five year period of parole ineligibility. Therefore, a remand is required to properly determine the
term of parole ineligibility. (pp. 15-21)
Judgment of the Appellate Division is REVERSED and the case is REMANDED to the Law Division
to redetermine the term of parole ineligibility in accordance with this opinion.
JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN join in JUSTICE
COLEMAN's opinion. CHIEF JUSTICE WILENTZ did not participate.
SUPREME COURT OF NEW JERSEY
A-
130 September Term 1995
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
OSCAR LEE KIRK,
Defendant-Respondent.
Argued March 26, 1996 -- Decided July 10, 1996
On certification to the Superior Court,
Appellate Division.
Janet Flanagan, Deputy Attorney
General, argued the cause for appellant
(Deborah T. Poritz, Attorney General of New
Jersey, attorney).
Ruth Bove Carlucci, Assistant Deputy Public
Defender, argued the cause for respondent
(Susan L. Reisner, Public Defender,
attorney).
The opinion of the Court was delivered by
COLEMAN, J.
The critical issue raised in this appeal is whether the
trial court properly exercised its discretion in finding that a
prosecutor did not act arbitrarily in declining to waive
imposition of an extended term sentence under the guidelines
promulgated pursuant to State v. Lagares,
127 N.J. 20 (1992).
The Appellate Division, hearing the case on its Excessive
Sentencing Oral Argument calendar, found that "the trial court
abused its discretion in not overruling the [prosecutor's]
refusal to waive the extended term." We granted certification,
143 N.J. 323 (1995), and now reverse.
Defendant, Oscar Lee Kirk, co-defendant, Linette Barber, and
her two children were travelling on Route 80 when their car was
stopped by a state trooper because defendant was driving
erratically. Defendant disclaimed any possessory interest in the
car, and at the trooper's request, co-defendant Barber consented
to a search of the car. That search revealed three wrapped
packages containing a total of six and one-half pounds of
cocaine, and a locked briefcase containing $8,000 in cash. In
August 1990, a jury convicted defendant of third-degree
possession of cocaine, a violation of N.J.S.A. 2C:35-10a(1); and
first-degree possession of six and one-half pounds of cocaine
with the intent to distribute, a violation of N.J.S.A. 2C:35-5a(1) and -5b(1). The State's motion for an extended term
sentence pursuant to N.J.S.A. 2C:43-6f was granted. Defendant
was sentenced to an extended term of fifty years of imprisonment
with twenty five years of parole ineligibility.
On appeal, the Appellate Division affirmed defendant's
conviction but remanded for reconsideration of the sentence
because defendant had been sentenced before the promulgation of
the guidelines required by this Court in Lagares. The Appellate
Division ruled that if that extended term sentence had been
properly imposed under the guidelines, it was not manifestly
excessive.
At the reconsideration hearing, the prosecutor complied with
the Attorney General Guidelines required by Lagares by stating
his reasons for refusing to waive the extended term. The
sentencing court re-imposed the identical sentence, and defendant
again appealed. The Appellate Division reversed, finding that
the trial court abused its discretion by not overruling the
prosecutor's refusal to waive the imposition of an enhanced
sentence.
The State argues that the Appellate Division misinterpreted
N.J.S.A. 2C:43-6f and improperly construed the Lagares
guidelines. The Appellate Division based its reversal on the
following. Defendant did not serve a prison term for either of
his two prior New York drug offenses. Second, defendant was
simply passing through New Jersey on an interstate highway at the
time of the present offense.
The mandatory extended term statute for repeat drug offenders involved in this case is N.J.S.A. 2C:43-6f. It was enacted as part of the Comprehensive Drug Reform Act of 1987 (Act). N.J.S.A. 2C:35-1 to -23 and N.J.S.A. 2C:36-1 to -9. The articulated objectives of the Act, set forth in the Legislature's
"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:35-1.1a. The Act focuses on
the punishment and deterrence of serious and dangerous offenders.
Ibid. Accordingly, it "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:35-1.1c. By providing
strict punishment for those offenders, the Legislature sought to
reduce the demand for illegal drugs and the incidence of drug-related crime. Ibid.
The statute, in relevant part, provides:
A person convicted of manufacturing, distributing,
dispensing or possessing with intent to distribute any
dangerous substance or controlled substance analog
under N.J.S. 2C:35-5, of maintaining or operating a
controlled dangerous substance production facility
under N.J.S. 2C:35-4, of employing a juvenile in a drug
distribution scheme under N.J.S. 2C:35-6, leader of a
narcotics trafficking network under N.J.S. 2C:35-3, or
of distributing, dispensing or possessing with intent
to distribute on or near school property or buses under
section 1 of P.L. 1987, c. 101 (C.2C:35-7), who has
been previously convicted of manufacturing,
distributing, dispensing or possessing with intent to
distribute a controlled dangerous substance or
controlled dangerous substance analog, shall upon
application of the prosecuting attorney be sentenced by
the court to an extended term as authorized by
subsection c. of N.J.S. 2C:43-7, notwithstanding that
extended terms are ordinarily discretionary with the
court.
. . . .
For the purpose of this subsection, a previous
conviction exists where the actor has at any time been
convicted under chapter 35 of this title or Title 24 of
the Revised Statutes or under any similar statute of
the United States, this State, or any other state for
an offense that is substantially equivalent to N.J.S.
2C:35-3, N.J.S. 2C:35-4, N.J.S. 2C:35-5, N.J.S. 2C:35-6
or section 1 of P.L. 1987, c. 101 (C.2C:35-7).
[N.J.S.A. 2C:43-6f.]
While N.J.S.A. 2C:43-6f defines which drug offenders are
eligible to receive a mandatory extended term at the option of
"the prosecuting attorney," N.J.S.A. 2C:43-7c prescribes the
range of those extended terms a court may or must impose.
In Lagares, this Court examined whether section 6f
impermissibly delegated judicial sentencing authority to the
prosecutor. Lagares, supra, 127 N.J. at 27-31. The Court
concluded that vesting unfettered discretion in the prosecutor
"exceeds the permitted `prosecutorial influence on the sentencing
determination.'" Id. at 31 (quoting State v. Warren,
115 N.J. 433, 448 (1989)). The Court acknowledged that "[a]s currently
written . . . Section 6f . . . would be unconstitutional." Ibid.
"The infirmity in Section 6f is the prosecutor's sole discretion
to select, without standards and without being subject to the
court's review, which defendants will receive an increased
sentence or enjoy favorable treatment." Id. at 28.
To cure that constitutional defect, the Court "interpret[ed]
the statute to require that guidelines be adopted to assist
prosecutorial decision-making with respect to applications for
enhanced sentences under N.J.S.A. 2C:43-6f." Id. at 32. The
Court also ensured that effective judicial review would exist to
protect defendants from abusive prosecutorial sentencing
decisions, by requiring prosecutors to state on the trial court
record their reasons for seeking an enhanced sentence. Ibid.
Further, the Court held that "an extended term may be denied or
vacated where defendant has established that the prosecutor's
decision to seek the enhanced sentence was an arbitrary and
capricious exercise of prosecutorial discretion." Id. at 33. So
construed, N.J.S.A. 2C:43-6f was found to comport with the
principles of the separation of powers doctrine.
On April 20, 1992, the Attorney General, in consultation
with county prosecutors, issued statewide guidelines governing
the State's decision to apply for enhanced sentencing under
section 6f. Directive Implementing Guidelines for Determining
Whether to Apply for an Extended Term Pursuant to N.J.S.A. 2C:43-6f from Robert J. Del Tufo, Attorney General, to the Director,
Division of Criminal Justice and all County Prosecutors (Apr. 20,
1992) (Attorney General Guidelines). To begin with, the
guidelines require prosecutors to establish the existence of the
defendant's predicate drug offense and to provide written
notification to both the court and the defendant of the State's
intention to apply for an extended term. Id. § II.1, 3. In
addition, the guidelines outline the factors on which a
prosecutor may rely as a basis for waiving an enhanced sentence.
Id. § II.5. They include: (a) the State is unable to prove the
grounds for defendant's eligibility for an extended term by a
preponderance of the evidence; (b) defendant lacked counsel at
the trial or plea that constituted the predicate offense; (c)
defendant pleads guilty under enumerated circumstances; (d) the
State determines that waiver is essential to secure defendant's
cooperation with the prosecution; (e) the State questions whether
the proofs available to prove the present offense are sufficient
to sustain the conviction; (f) defendant's prior record includes
only convictions that are extremely remote, and the State
determines that there is no reason to believe that defendant
derived a substantial source of income from criminal activity at
any time; and (g) the State determines that waiver is appropriate
based upon the existence of compelling extraordinary
circumstances, including an assessment of the seriousness of both
the present and predicate offenses, and the nature and amount of
the controlled dangerous substance involved. Ibid.
Consistent with this Court's decision in Lagares, the
Attorney General Guidelines also require prosecutors to state on
the record their reasons for refusing to waive an extended term.
Id. § II.4. This provision is designed to provide a foundation
upon which a reviewing court can assess the prosecutor's exercise
of discretion. As previously noted, a defendant challenging a
prosecutor's application for an extended term must establish that
the decision constituted an abuse of prosecutorial discretion.
The Lagares Court made clear the substantial burden that a
defendant has in establishing arbitrariness:
We emphasize that the burden on defendant
to prove that a prosecutor's decision to deny
leniency constituted an arbitrary and
capricious exercise of discretion is heavy.
Defendants will have to do more than merely
make general conclusory statements that a
prosecutorial determination was abusive.
Instead, they must show clearly and
convincingly their entitlement to relief
under the standard established herein.
Application of that standard is consistent
with the legislative determination to make an
extended sentence for repeat offenders the
norm.
[Lagares, supra, 127 N.J. at 33.]
Defendant qualified for an extended term sentence under
section 6f because in 1988, he was convicted in New York of
third-degree attempted sale of cocaine to an undercover police
officer, a violation of section 220.39 of New York's Penal Code.
See N.Y. Penal Law § 220.39 (McKinney 1996). That offense was
substantially similar to a violation of N.J.S.A. 2C:35-5 and
therefore satisfied the requirements of a prior drug conviction
under N.J.S.A. 2C:43-6f and N.J.S.A. 2C:44-4c. In 1982,
defendant had also been convicted in New York for introducing
contraband and marijuana into a prison, a violation of section
70.15 of New York's Penal Code. See N.Y. Penal Law § 70.15
(McKinney 1995).
At the remand hearing to reconsider the sentence in light of
the Attorney General Guidelines, the State first focused on
section II.5, which defines the standard for waiving an enhanced
sentence. The prosecutor noted that at the time of his New York
convictions, defendant was represented by counsel. With regard
to defendant's New Jersey conviction, the prosecutor pointed out
that defendant had not pled guilty or cooperated with the State,
and was on probation at the time he committed the present
offense. The State asserted that those factors demonstrated
defendant's disrespect for the law and his unwillingness to
rehabilitate himself.
The prosecutor also emphasized the underlying facts of
defendant's offense. Defendant had possessed six and one-half
pounds of high quality cocaine, more than twenty-one times the
amount that constitutes a first-degree offense. According to the
State, that amount of cocaine reflected what an expert had
described as the markings of a cocaine cartel, thereby indicating
that defendant had connections with members of the upper echelon
of the cocaine trafficking network. The State further noted that
defendant possessed $8,000 in cash at the time of his arrest,
negating any contention that defendant did not "derive a
substantial source of income from criminal activity."
Last, the State argued that section II.5g of the Attorney
General Guidelines, the so-called "catch-all" provision, did not
provide a basis for waiving extended term sentencing in this
case. According to the State, the sheer quantity of the cocaine
involved, and defendant's use of two infants as shields for his
illegal activity, militated against finding that "compelling
extraordinary circumstances" made waiver appropriate. Defendant
contends that the prosecutor should have waived the extended term
under the catch-all provision because of the remoteness of his
prior convictions. We find defendant's argument to be
unpersuasive. Defendant was still on probation for the 1988
allegedly remote offense when he committed the 1990 drug offense
in New Jersey.
Defendant further argues that the prosecutor's application
for enhanced sentencing was an arbitrary and capricious abuse of
prosecutorial discretion. We conclude, however, that the State
sufficiently explained its reasoning on the record, and cited
ample evidence to support its interpretation of the guidelines.
As the State asserts, the prosecutor might even have been remiss
in his responsibilities had he not sought an extended term for
this defendant who demonstrated an escalating pattern of drug
activity. Defendant has failed to meet the heavy burden that a
defendant must bear to prove that the State's decision to deny
leniency was arbitrary and capricious; he simply failed to
establish by clear and convincing evidence that he was entitled
to a waiver. Lagares, supra, 127 N.J. at 33. Accordingly, the
trial court properly concluded that there was no basis to deny
the prosecutor's application for an extended term sentence.
We agree with the State that the Appellate Division erred in
considering the lack of prior imprisonment as a basis for
concluding that the trial court abused its discretion in failing
to overrule the prosecutor's refusal to waive the enhanced
sentence. The language of section 6f refers only to previous
convictions and makes no exception for a conviction that does not
result in a prison term. On the contrary, section 6f mandates
the imposition of an extended sentence for defendants previously
convicted of third or fourth degree offenses pursuant to N.J.S.A.
2C:35-5b(3), (5), (9), (11), (12), (13), (14), but who were not
incarcerated because of the presumption of nonincarceration
contained in N.J.S.A. 2C:44-1e. See, e.g., State v. DeJesus,
252 N.J. Super. 456, 458 (Law Div. 1991) (denying defendant's motion
for reconsideration of sentence where defendant was serving
extended term on underlying offense in violation of N.J.S.A.
2C:35-5a, 5b(3)). Similarly, a conviction in another
jurisdiction need not involve incarceration, only that "a
sentence of imprisonment in excess of 6 months was authorized
under the law of the other jurisdiction." N.J.S.A. 2C:44-4c.
Next, defendant contends that the Attorney General Guidelines fail to cure the separation of powers infirmity that this Court recognized in Lagares because they do not permit the prosecutor to waive an extended term based on an "interest of justice" standard. According to defendant, a prosecutor might believe that a defendant's background, work history, and rehabilitative efforts make the defendant an inappropriate candidate for an extended term sentence. The Attorney General Guidelines, however, do not empower the State to waive the imposition of enhanced sentencing on those grounds. Similarly, the sentencing court is precluded from considering such factors because its authority to review the prosecutor's decision is
limited to an evaluation of whether the State properly applied
the guidelines. Because the guidelines do not incorporate those
"interest of justice" factors, defendant maintains, they are
unfairly weighted against defendants and therefore fail to cure
the constitutional defect in section 6f.
The New Jersey Constitution provides:
The powers of the government shall be divided
among three distinct branches, the
legislative, executive, and judicial. No
person or persons belonging to or
constituting one branch shall exercise any of
the powers properly belonging to either of
the others, except as expressly provided in
this Constitution.
[N.J. Const. art. III, ¶ 1.]
"Although sentencing discretion is shared to some extent among
the three branches of government, the determination of the
sentence is committed to the discretion of the judiciary."
Lagares, supra, 127 N.J. at 27-28. This Court has stressed that
the "`[p]ronouncement of judgment of sentence is among the most
solemn and serious responsibilities of a trial court.'" Warren,
supra, 115 N.J. at 449 (quoting State v. Roth,
95 N.J. 334, 365
(1984)).
For a sentencing statute to be constitutional under the
separation of powers clause, it must, expressly or by
construction, be interpreted to vest ultimate authority in the
judiciary. State v. Alvarez,
246 N.J. Super. 137, 144 (App. Div.
1991). "`As long as a statute does not take from the courts the
final discretion to impose sentence, it does not infringe upon
the constitutional division of responsibilities.'" Id. at 145
(quoting Eldridge v. State,
418 So.2d 203, 207 (Ala. Crim. App.
1982). In Lagares, this Court held that section 6f violated the
separation of powers doctrine because it furnished the prosecutor
with "sole discretion to select, without standards and without
being subject to the court's review, which defendants will
receive an increased sentence or enjoy favorable treatment."
Lagares, supra, 127 N.J. at 28. To correct that statutory
defect, the Court instructed the State to adopt guidelines to
channel prosecutorial discretion and provide for adequate
judicial review.
We are entirely satisfied that the Attorney General
Guidelines cure the constitutional infirmity Lagares found to
exist with respect to section 6f. Those guidelines vest the
judiciary with the authority to make the ultimate determination
of the sentence to be imposed. Section I of the guidelines
states that "the judiciary retains the power to review decisions
pursuant to N.J.S.A. 2C:43-6f to avoid prosecutorial abuses."
Attorney General Guidelines, supra, § I. The guidelines
reinforce this Court's holding in Lagares that the imposition of
an extended term "may be denied or vacated [by the sentencing
court] where defendant has established that the prosecutor's
decision to seek the enhanced sentencing was an arbitrary and
capricious exercise of prosecutorial discretion." Lagares,
supra, 127 N.J. at 33.
Accordingly, we reject defendant's assertion that the
guidelines should include an "interest of justice" factor. The
legislative objective of section 6f is to impose lengthy prison
terms on repeat drug offenders as "the norm rather than the
exception." Id. at 32. To achieve that objective, there is no
need to widen the latitude of prosecutorial waiver discretion by
incorporating an "interest of justice" factor as defendant urges.
To do so would contravene the Legislature's aim.
The Legislature adopted the Code to replace "the unfettered
sentencing discretion of prior law with a structured discretion
designed to foster less arbitrary and more equal sentences."
Roth, supra, 95 N.J. at 345. Under the pre-Code criminal law,
judges were free to mete out widely differing sentences to
defendants convicted of virtually identical crimes. Id. at 348.
The Code seeks to make sentencing more rational and uniform "by
emphasizing the severity of the crime, rather than the
defendant's capacity for rehabilitation." State v. Jabbour,
118 N.J. 1, 6 (1990). Thus, focusing on "interest of justice"
factors, such as a defendant's work history or upbringing,
undermines that very goal.
Furthermore, the Attorney General Guidelines have, to some
extent, incorporated some of the spirit of the "interest of
justice" standard. Section II.5g, the catch-all provision,
provides defendants with an analogous escape valve. It
authorizes prosecutors to waive enhanced sentencing "based upon
the existence of compelling extraordinary circumstances,
including an assessment of the seriousness of the present offense
and the predicate offense(s), and consideration of the nature and
amount of C.D.S. involved." Attorney General Guidelines, supra,
§ II.5g. This catch-all provision operates in much the same way
as an "interest of justice" standard in that it provides
prosecutors and reviewing courts with a basis for safeguarding
defendants from the imposition of an extended term where
principles of justice would not be served. The word "including"
is intended to be a term of enlargement that "conveys the
conclusion that there are other items includable, though not
specifically enumerated." Zorba Contractors, Inc. v. Housing
Auth.,
282 N.J. Super. 430, 434 (App. Div. 1995); 2A Norman J.
Singer, Sutherland Statutory Construction § 47.07 (5th ed. 1992).
Ultimately, of course, the prosecutor's application of the
guidelines is reviewed by the sentencing court under an arbitrary
and capricious standard. Lagares, supra, 127 N.J. at 33. That
judicial review protects defendants against prosecutorial abuse
of discretion in the application of enhanced sentencing. It also
preserves the delicate balance of powers mandated by the New
Jersey Constitution, thereby remedying the constitutional defect
inherent in section 6f. State v. Gonzalez,
254 N.J. Super. 300,
308-09 (App. Div. 1992).
Appellate courts must undertake a careful and vigorous review of any claim that a trial court abused its sentencing discretion. State v. Jarbath, 114 N.J. 394, 401 (1989). An appellate court should not, however, simply substitute its own
judgment for that of the sentencing court when disagreeing with
the sentence imposed. Ibid. This Court has further cautioned
that appellate courts should exercise sparingly their power of
review of a trial court's sentencing discretion. State v.
Ghertler,
114 N.J. 383, 388 (1989).
In Roth, this Court delineated an appellate court's role in
reviewing sentencing decisions. Roth, supra, 95 N.J. at 364-66.
The Court stated that appellate courts may:
(a) review sentences to determine if the
legislative policies, here the sentencing
guidelines, were violated; (b) review the
aggravating and mitigating factors found
below to determine whether those factors were
based upon competent credible evidence in the
record; and (c) determine whether, even
though the court sentenced in accordance with
the guidelines, nevertheless the application
of the guidelines to the facts of [the] case
makes the sentence clearly unreasonable so as
to shock the judicial conscience.
[Id. at 364-65.]
Viewing defendant's sentence of fifty years with twenty-five
years of parole ineligibility in light of the Roth standard leads
us to conclude that his sentence violates some basic sentencing
guidelines under the Code. A mandatory extended term required by
section 6f shall be fixed in accordance with N.J.S.A. 2C:43-7 and
shall include a term of parole ineligibility "fixed at, or
between, one-third and one-half" of the base term, but not less
than three years for a third-degree offense. N.J.S.A. 2C:43-6f.
A review of the controlling statutory provisions indicates
that although the trial court was obligated to impose an enhanced
sentence based on the prosecutor's refusal to waive sentence
enhancement, it still possessed a reservoir of discretion. Under
N.J.S.A. 2C:43-7c, the extended term sentence for a first-degree
offense under N.J.S.A. 2C:35-5b(1) is determined by N.J.S.A.
2C:43-7a(2) that prescribes a range of between "20 years and life
imprisonment." N.J.S.A. 2C:43-7c further directs that a term of
parole ineligibility, [unless waived by the prosecutor], must be
"fixed at or between one-third and one-half" of the base term, or
a minimum of twenty-five years if the base term imposed is life.
Because N.J.S.A. 2C:43-6f does not define what constitutes a
presumptive term, N.J.S.A. 2C:44-1f must be referenced. That
statute provides that an extended term imposed pursuant to
N.J.S.A. 2C:43-7a(2) has a presumptive term of fifty years.
N.J.S.A. 2C:44-1f(1). The aggravating and mitigating factors
must be balanced to determine whether to impose a base term above
or below the presumptive term. Ibid. Here, the trial court
imposed the presumptive base term after concluding that the
following six aggravating factors were present: the quantity of
cocaine possessed, N.J.S.A. 2C:44-1a(1); the likelihood that
defendant would become a repeat offender, N.J.S.A. 2C:44-1a(3);
the substantial likelihood that defendant is involved in
organized drug trafficking, N.J.S.A. 2C:44-1a(5); defendant's
prior criminal record, N.J.S.A. 2C:44-1a(6); defendant was on
probation at the time he committed the present offense, N.J.S.A.
2C:44-1a(6); payment to commit the present offense, N.J.S.A.
2C:44-1a(7); and the need for deterrence, N.J.S.A. 2C:44-1a(9).
The trial court found no mitigating factors.
Although the trial court exercised its discretion and
imposed the presumptive base term of fifty-years, it imposed the
maximum term of parole ineligibility as though a life term had
been imposed. It is difficult to imagine what relevant
sentencing consideration may have existed to support the maximum
parole disqualifier.
Unlike the procedure involved under N.J.S.A. 2C:35-12, in
which the prosecutor negotiates the sentence and the trial court
has the option of accepting the negotiated sentence or rejecting
the agreement in its entirety, State v. Bridges,
131 N.J. 402,
409-11 (1993); N.J.S.A. 2C:43-6f does not authorize the
prosecutor to fix the terms of the mandatory enhanced sentence.
In a section 6f case, the role of the prosecutor is to waive or
refuse to waive the mandatory extended term. Lagares, supra, 127
N.J. at 28. Once the prosecutor refuses to waive the mandatory
extended sentence, in a case that does not involve a plea
agreement or a post-verdict agreement pursuant to N.J.S.A. 2C:35-12, the role of the prosecutor is limited to making a
recommendation to the sentencing court regarding the base term
and the parole disqualifier.
In State v. Jefimowicz,
119 N.J. 152 (1990), this Court held
that the guidelines for discretionary extended term sentencing
prescribed in State v. Dunbar,
108 N.J. 80, 89-91 (1987) should
be applied to narrowly defined areas within mandatory extended
term sentencing. Jefimowicz, supra, 119 N.J. at 162. One
recognized area in which the Dunbar guidelines apply is the
utilization of aggravating and mitigating factors in "determining
the base term[] as well as the period of parole ineligibility"
because of the discretion that reposes with the sentencing court.
Id. at 163; State v. Towey,
114 N.J. 69, 82 (1989). The Court in
Jefimowicz reaffirmed that sentencing courts must be cognizant of
their flexibility in determining the duration of parole
ineligibility even where a mandatory extended term is involved.
Jefimowicz, supra, 119 N.J. at 163. That flexibility should be
applied so that ordinarily the longest permitted term of parole
ineligibility would "be imposed only on base terms at or near the
top of the range for that degree of crime." Towey, supra, 114
N.J. at 81.
In the present case, the trial court failed to explain the
apparent inconsistency between the presumptive base term and the
maximum term of parole ineligibility. Ordinarily, "the most
severe parole ineligibility terms [should] be imposed in
conjunction with base terms that exceed the presumptive term."
Id. at 84. Under the facts of this case, it is self-evident that
once the trial court found six aggravating factors and no
mitigating factors but nonetheless imposed the presumptive base
term, it did not appreciate its corresponding obligation to
impose a term of parole ineligibility that was not at or near the
top of the range. The same aggravating factors are used to
determine both the appropriate base term and the period of parole
ineligibility. Ghertler, supra, 114 N.J. at 389.
The trial court offered no explanation to justify the
absence of any balance between the presumptive base term and the
maximum twenty-five-year period of parole ineligibility. The
statute simply required the trial court to set the minimum term
"at, or between, one-third and one-half of the sentence imposed
by the court or three years, whichever is greater . . . ."
N.J.S.A. 2C:43-6f. When a trial court fails to adhere to the
guidelines in this limited area of mandatory extended term
sentencing, the Code's restraint on the discretion of judges is
violated, and the Code's pursuit of "greater uniformity" is
reduced rather than enhanced. See Dunbar, supra, 108 N.J. at 97;
State v. Hartye,
105 N.J. 411, 417 (1987); Roth, supra, 95 N.J.
at 369.
Both the Code, N.J.S.A. 2C:43-2e, and the Rule of Court,
Rule 3:21-4(e), require the sentencing court to state on the
record the reasons supporting the base term and any term of
parole ineligibility not mandated by statute. Based on the
presumptive base term imposed in the present case, the trial
court failed to explain the eight and one-third years of parole
ineligibility that exceeded the statutory required minimum of
sixteen and two-third years. The trial court may have labored
under the erroneous impression that section 6f obligated it to
fix the term of parole ineligibility at one-half of the base
term. When defendant was sentenced initially on October 12,
1990, the trial court noted that the presumptive term was fifty
years and that the court "could sentence defendant to 50 years
with one-third dash [sic] one-half of the sentence [as] parole
ineligibility." A remand is required to properly determine the
term of parole ineligibility.
The judgment of the Appellate Division is reversed. The
case is remanded to the Law Division to redetermine the term of
parole ineligibility in accordance with this opinion.
JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN join
in JUSTICE COLEMAN's opinion. CHIEF JUSTICE WILENTZ did not
participate.
NO. A-130 SEPTEMBER TERM 1995
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
OSCAR LEE KIRK,
Defendant-Respondent.
DECIDED July 10, 1996
Justice Handler PRESIDING
OPINION BY Justice Coleman
CONCURRING OPINION BY
DISSENTING OPINION BY