(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 March 26, 2001 -- Decided June 26, 2001
LaVecchia, J., writing for the Court.
On July 27, 1998, Shawn Fowlkes pled guilty to third-degree possession of heroin with intent to distribute it
at the Seth Boyden Housing Projects in Newark, a location that was within 1,000 feet of a school. The offense occurred
on February 2, 1997. In exchange for Fowlkes' plea, the State agreed to dismiss other charges and to recommend a
seven-year sentence with a parole ineligibility term of forty-two months. The State's recommendation was consistent
with the Guidelines established by the Attorney General in response to this Court's decision in State v. Brimage
153 N.J. 1 (1998).
Fowlkes appealed his sentence, arguing to the Appellate Division that the application of the Brimage Guidelines
to his offense, which occurred prior to the decision in Brimage, amounted to a violation of the ex post facto clauses of
the federal and State constitutions. The Appellate Division affirmed the sentence, and this Court granted Fowlkes'
petition for certification.
HELD: Although the Court generally agrees with the Attorney General's conclusion that the Brimage Guidelines should
apply to all pending cases, an exception is necessary when application of the post-Brimage guidelines would result in
a harsher minimum period of parole ineligibility for a defendant whose criminal act occurred prior to the Court's decision
in State v. Brimage.
1. In a series of decisions over ten years, the Court has sought to implement a mandate to avoid the imposition of
arbitrary and inconsistent guilty-plea generated sentences under the Comprehensive Drug Reform Act of 1987(CRDA).
(pp. 5-8)
2. In State v. Brimage, the Court directed the Attorney General to develop new statewide guidelines governing drug
offenses under the CRDA. The Court ruling in Brimage was made prospective, except in respect of cases on direct
appeal. (Brimage himself was given the option of vacating or renegotiating his plea.) The Attorney General issued
Brimage Guidelines that included a Table of Authorized Plea Offers. The Table sets forth presumptive plea offers based
on a defendant's offense, prior criminal history, and the timing of the plea offer. (pp. 8-11)
3. Although the Brimage Guidelines generally should be applied prospectively to all pending cases, a limited exception
is necessary when application of the post-Brimage guidelines at sentencing would result in a harsher minimum parole
ineligibility term for a defendant whose offense predated the Brimage decision. (pp. 12-13)
4. The Court views this matter as a clarification of Brimage. As such, the Court has based its conclusion on grounds
of fairness and equity. It therefore declines to address the constitutional arguments raised by Fowkles. (pp. 13-16)
5. Under the facts of this case, the State's argument that applying the pre-Brimage guidelines to Fowkles will violate
that decision's goal of eliminating intercounty disparities in plea sentences carries insufficient force. (pp. 16-17)
The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the Law
Division for further proceedings consistent with the opinion.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LONG, and ZAZZALI join in
JUSTICE LaVECCHIA's opinion. JUSTICE VERNIERO did not participate.
SUPREME COURT OF NEW JERSEY
A-
31 September Term 2000
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHAWN FOWLKES a/k/a SHAWN
WARD, ALI BURGER and WAND-
SHAWN BURGER,
Defendant-Appellant.
___________________________
Argued March 26, 2001 -- Decided June 26, 2001
On certification to the Superior Court,
Appellate Division.
Diane Toscano, Assistant Deputy Public
Defender, argued the cause for appellant
(Peter A. Garcia, Acting Public Defender,
attorney).
Gerard C. Sims, Jr., Deputy Attorney General,
argued the cause for respondent (John J.
Farmer, Jr., Attorney General of New Jersey,
attorney).
The opinion of the Court was delivered by
LaVECCHIA, J.
This appeal involves a defendant's plea of guilty to a school-
zone drug offense under the Comprehensive Drug Reform Act of 1987
(CDRA), N.J.S.A. 2C:35-1 to 36A-1. To satisfy constitutional
requirements, in 1992 the Attorney General promulgated two plea-
agreement directives to govern prosecutorial discretion in
structuring plea offers under the CDRA. Directive Implementing
Guidelines Governing Plea-Bargaining and Discretionary Decisions in
Drug Prosecutions Involving Mandatory Terms, from Robert J. Del
Tufo, Attorney General, to the Director, Division of Criminal
Justice and All County Prosecutors (Sept. 15, 1992) (Mandatory Term
Guidelines); Directive Implementing Guidelines for Determining
Whether to Apply for an Extended Term Pursuant to N.J.S.A. 2C:43-
6(f), from Robert J. Del Tufo, Attorney General, to Director,
Division of Criminal Justice and All County Prosecutors (Apr. 20,
1992) (Extended Term Guidelines). Those plea-bargaining guidelines
were in effect when defendant committed his drug offense in
February 1997.
One year later, this Court decided State v. Brimage, in which
we held that plea-bargaining guidelines for offenses then in place
were not consistent throughout the State and must be made uniform.
153 N.J. 1, 23 (1998). In response to Brimage, the Attorney
General promulgated new guidelines effective May 20, 1998.
Attorney General Guidelines for Negotiating Cases Under N.J.S.A.
2C:35-12 (May 20, 1998) (Brimage Guidelines). Also, the Attorney
General directed that the Brimage Guidelines “shall apply to all
pending cases.” Attorney General Directive No. 1998-1 Prosecuting
Cases Under the Comprehensive Drug Reform Act (May 20, 1998).See footnote 11
Approximately two months after the promulgation of the new
guidelines, the State extended a plea offer to defendant. Although
the plea offer was consistent with the Brimage Guidelines, it
included a longer period of parole ineligibility than that
available to defendant under the Extended Term Guidelines in effect
at the time of his offense. Prior to sentencing, defendant
objected to the use of the Brimage Guidelines in calculating the
State's plea offer, maintaining that plea negotiations should have
proceeded in accordance with those plea-bargaining guidelines in
effect at the time of his offense. The issue here is whether the
Brimage Guidelines should have been applied to defendant's offense.
In an unpublished opinion, the Appellate Division affirmed
defendant's sentence.
Defendant appeared for sentencing in September 1998, at which time defense counsel stated that “while we stand by the plea agreement, . . . we just wanted to express our dissatisfaction with the process.” The court imposed the agreed-on sentence of seven years with forty-two months parole ineligibility in addition to appropriate penalties and fees.
Defendant appealed. At oral argument before the Appellate Division, defendant claimed for the first time that application of the Brimage Guidelines to his case violated constitutional prohibitions on ex post facto laws. The Appellate Division disagreed, holding (1) that application of the Brimage Guidelines to defendant was not inconsistent with this Court's decision in Brimage, and (2) that application of the Brimage Guidelines to defendant's case did not violate the ex post facto clauses of the United States or New Jersey Constitutions. We granted defendant's petition for certification, 165 N.J. 606 (2000).
A mandate to avoid arbitrariness resonates in our cases concerning the guidelines. That principle fosters the goals of the Code of Criminal Justice, N.J.S.A. 2C:1-1 to 104-9 (Code). The Legislature lists among the purposes of the sentencing provisions of the Code the intent “[t]o safeguard offenders against excessive, disproportionate or arbitrary punishment,” and “[t]o give fair warning of the nature of the sentences that may be imposed on conviction of an offense.” N.J.S.A. 2C:1-2. In our earliest decision addressing in detail the standards that would guide sentencing under the Code, this Court noted that “[t]he central theme of the Code's sentencing reforms is the replacement of the unfettered sentencing discretion of prior law with a structured discretion designed to foster less arbitrary and more equal sentences.” State v. Roth, 95 N.J. 334, 345 (1984).
Later, in Lagares, we first considered a constitutional challenge to the prosecutor's power to invoke the extended sentence requirement of N.J.S.A. 2C:43-6(f). 127 N.J. at 23. That statutory provision requires a court to impose an extended term with a period of parole ineligibility for a repeat drug offender, but only upon the application of the prosecutor. Ibid. The infirmity that Lagares identified in Section 6(f) was the prosecutor's unilateral discretion to select, without being subject to judicial review and without standards, which defendants will be subject to an extended term. Id. at 28. The Court considered that infirmity within a broader perspective:
Where the Legislature has permitted the executive to select defendants for enhanced punishment or favorable treatment, this Court has generally required that decision-making be carried out in a fashion that limits potential arbitrariness. In addition, we have required that the judiciary retain the power to review prosecutorial decisions to avoid abuses of discretion. We continue that approach today.
It was against that backdrop of statutory and decisional law concerned with the prevention of arbitrariness in sentencing that the Court in Brimage, supra, re-examined the Attorney General's plea-bargaining guidelines. The guidelines at issue in Brimage permitted each county to adopt its own standard plea offers for cases under CDRA so long as statewide minimums were not transgressed. 153 N.J. at 4. The Lagares/Vasquez line of cases, which was concerned with the absence of guidelines, resulted in the adoption of guidelines that reduced capriciousness with regard to decision-making among individual prosecutors within a county. Those guidelines, however, allowed intercounty differences. We concluded in Brimage that, although the guidelines adopted within each county avoided “arbitrariness with respect to decision-making among individual prosecutors,” those guidelines impermissibly allowed disparities between counties. Id. at 22. The guidelines, therefore, “fail[ed] to appropriately channel prosecutorial discretion, thus leading to arbitrary and unreviewable differences between different localities.” Id. at 23. The premise supporting the constitutionality of the sentencing scheme collapsed “'when the scheme itself promote[d] or formalize[d] the potential arbitrariness by permitting deviation from county to county.'” Ibid. (quoting State v. Press, 278 N.J. Super. 589, 603 (App. Div.) (Stern, J., dissenting), certif. denied, 140 N.J. 329 (1995), appeal dismissed, 144 N.J. 373 (1996)).
We ordered the Attorney General to promulgate new, uniform plea-agreement guidelines for application statewide, holding further that our decision would have limited retroactive effect:
[W]e hold that our ruling today is prospective, except with respect to this case and all cases on direct appeal. . . .
The State, the counties, and numerous defendants have relied on the previous versions of the Attorney General's Guidelines. Moreover, although it is impossible to forecast the exact number of defendants who might be affected if this ruling were applied retroactively, estimates are that more than a thousand defendants are sentenced annually under [N.J.S.A.] Section 12. Accordingly, such an application would require the review of numerous sentences, resulting in a great number of sentencing hearings, and would impose a very substantial burden on the court system and the administration of justice.
We have, however, chosen to apply a limited retroactive effect to this case and those cases pending final appeal on the date this opinion is issued. The cases pending final appeal will have the same options . . . as defendant in this case.
The defendant in Brimage was given the option of either “vacating his plea or renegotiating his plea. If he chooses the latter option, his plea shall be determined under the Attorney General's Guidelines as they stood at the time of his sentencing.” Id. at 27. The defendant argued that the Attorney General's guidelines that were in effect at the time of the defendant's sentencing included standard plea offers that were less stringent than that prescribed by the county. Ibid.
In response to Brimage, the Attorney General issued the Brimage Guidelines that superceded all previous guidelines. Under the Brimage Guidelines a “Table of Authorized Plea Offers” governs prosecutors' decisions concerning waiver and/or length of the mandatory minimum sentence under the CDRA. The Table sets forth presumptive plea offers based on a defendant's offense, his prior criminal history, and the timing of the plea offer. The central issue in this appeal is the legality of the Attorney General's implementing directive that the Brimage Guidelines apply to all pending cases, even when that results in a plea offer that visits a harsher period of parole ineligibility on a specific defendant. That question was not addressed in Brimage. When we determined that Brimage was to be given only limited retrospective application, we were referring to the rule of the case, that is, the invalidity of the Attorney General's plea-bargaining guidelines because of the intercounty disparity that they permitted. When the Court announced in Brimage that the decision would have limited retroactive application to Brimage himself, and all cases pending final appeal where obviously the pleas had been entered and sentencing accomplished, our fundamental goal was to prevent a flood of litigants who already had been sentenced from seeking relief on the ground that the prior set of guidelines under which they pled guilty had been declared unlawful. Cf. State v. Reyes, 325 N.J. Super. 166, 169-70 n.2 (App. Div. 1999) (“It is obvious from the context of the Court's decision [in Brimage] that the prospective aspect of the Court's holding was directed to sentences imposed under county guidelines before Brimage was decided, and for which no appeal was taken.”). We did not address the question whether revised guidelines adopted in response to Brimage should be applied uniformly to all pending cases.
We do not hold, however, that that exception is necessary because of the prohibitions of the ex post facto clauses of the Federal and State Constitutions. We regard the issue presented here as merely a question of clarification of our requirement in Brimage that the Attorney General develop new guidelines for use statewide. Thus, we decline to reach that constitutional question. Donadio v. Cunningham, 58 N.J. 309, 325-26 (1971) (noting rule that “a court should not reach and determine a constitutional issue unless absolutely imperative in the disposition of the litigation”).See footnote 22 But see Reyes, supra, 325 N.J. Super. at 172 (holding that application of new statewide guidelines governing prosecutor's authority to waive mandatory minimum period of incarceration not violative of ex post facto clauses of New Jersey and United States Constitutions); State v. Jimenez, 266 N.J. Super. 560, 572 (App. Div. 1993) (holding that guidelines that cured constitutionally defective Code provision governing mandatory penalties under CDRA did not violate ex post facto prohibitions).
Defendant committed his crime in February 1997, but his guilty plea did not occur until July 1998 and sentencing followed in September 1998. In pleading guilty, defendant accepted a plea offer tendered by the prosecutor pursuant to the Brimage Guidelines, which went into effect in May 1998. Thus, the structure of defendant's plea offer was controlled by the guidelines that were not effective until more than fifteen months after he committed his offense. Use of the Brimage Guidelines to govern defendant's plea bargain negatively affected defendant's sentence; those guidelines increased the punishment for defendant's crime relative to the plea-bargaining guidelines in place at the time of the offense. The presumptive plea offer for defendant under the Brimage Guidelines is forty-two months of parole ineligibility, with a thirty-six-month minimum, while the Extended Term Guidelines provided a twenty-month minimum parole disqualifier. Defendant, therefore, could have received a plea offer comprised of a minimum of twenty months of parole ineligibility under the Extended Term Guidelines, but could receive no less than thirty-six months of parole ineligibility under the Brimage Guidelines. Application of the Brimage Guidelines to defendant therefore increased his minimum term of imprisonment under the plea offer. But cf. State v. Mercedes, 165 N.J. 131, 131 (2000) (remanding matter for re-sentencing of defendant under more favorable Brimage Guidelines where offense and plea of guilty preceded Brimage, and sentencing occurred post-Brimage); State v. Castaing, 321 N.J. Super. 292, 297 (App. Div. 1999) (holding that defendant who was tried and convicted pre-Brimage, but sentenced post-Brimage, entitled to post-conviction waiver agreement negotiated pursuant to Brimage Guidelines).
We cannot countenance that result. As noted, we acknowledge the correctness of the Attorney General's approach that post- Brimage guidelines should apply generally to all pending cases irrespective of the date of the offense. That approach has much to commend it. It provides maximum protection to defendants from the potential arbitrariness in sentencing that could occur under the prior guidelines and provides for maximum uniformity in sentencing. However, those goals, although laudable, do not justify subjecting any defendant whose offense predates Brimage to a harsher penalty. As a matter of fairness and equity, defendants who committed offenses pre-Brimage and who would fare worse under post-Brimage guidelines should be sentenced in accordance with the guidelines in effect prior to Brimage. The holding in Brimage that was intended to ameliorate inequitable, arbitrary, and unfair treatment of defendants in sentencing cannot be permitted itself to become a vehicle for disadvantaging the limited universe of interstitial defendants with pre-Brimage offenses but post-Brimage sentences who are subjected to harsher plea offers under the Brimage Guidelines.
The State argues that application of pre-Brimage guidelines to defendant's plea bargain would result in the prosecutor applying guidelines this Court had found deficient in Brimage because they allowed for intercounty disparity. The State contends that such a result fails to comport with the Court's goal in Brimage of eliminating intercounty plea-offer disparities. Under the facts of this case, however, those arguments carry insufficient force. Essex County, in which defendant was sentenced, had issued its own set of guidelines on February 26, 1997. Implementation of Attorney General's Supplemental Directive for Prosecuting Cases Under the Comprehensive Drug Reform Act, from Clifford Minor, Essex County Prosecutor, to All Assistant Prosecutors, Essex County Prosecutor's Office (Feb. 26, 1997) (Essex County Guidelines). The Essex County Guidelines deferred to the Attorney General's Extended Term Guidelines establishing statewide minimum plea offers in cases, such as defendant's, in which extended terms were sought. Accordingly, any concern about uniformity already is diminished. Furthermore, our ruling in Brimage implicitly contemplated that the pre-Brimage Extended Term Guidelines, despite their flaws, would continue to find application in certain cases while the Brimage Guidelines worked their way into comprehensive application. Pursuit of the salutary goal of uniformity should not be rushed at the expense of the arbitrary imposition on defendant of a harsher plea offer under the Brimage Guidelines than that available under the Extended Term Guidelines in effect at the time of his offense.
In conclusion, we create only a limited exception to the Attorney General's pronouncement that the Brimage Guidelines be applied to all pending cases. Only where such application would disadvantage a defendant whose criminal act occurred prior to the Brimage decision, and where a lesser sentence to a plea would result from the application of pre-Brimage guidelines, is an exception to be allowed to the otherwise uniform rule. That exception, of its very nature, will not be a longstanding one.
case is remanded to the Law Division for further proceedings
consistent with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LONG, and
ZAZZALI join in JUSTICE LaVECCHIA's opinion. JUSTICE VERNIERO did
not participate.
NO. A-31 SEPTEMBER TERM 2000
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHAWN FOWLKES a/k/a SHAWN
WARD, ALI BURGER and WAND-
SHAWN BURGER,
Defendant-Appellant.
DECIDED June 26, 2001
Chief Justice Poritz PRESIDING
OPINION BY Justice LaVecchia
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1 1 The Brimage Guidelines superceded Interim Guidelines that were promulgated on February 26, 1998. Prosecution of Drug Cases Following State v. Brimage, from Peter Verniero, Attorney General, to All County Prosecutors (Feb. 26, 1998). The Interim Guidelines included the directive, later essentially carried forward in the Brimage Guidelines, that they “shall apply to all pending cases without regard to the date when the offense occurred.” Footnote: 2 2 In a different setting involving federal sentencing guidelines, the Third Circuit Court of Appeals in United States v. Barel, 939 F.2d 26, 43 (3d Cir. 1991), similarly declined to reach the defendant's ex post facto arguments concerning the applicability of guidelines revised after the date of offense. In Barel, it was not necessary for the court to decide the issue in respect of the federal government's policy position that the more lenient earlier guidelines in effect at the time of offense would govern, insulating the defendant from prejudice. Ibid.