NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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

3 A-5715-12T3 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,

(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,

(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,

(App.

Div.), certif. denied,

(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."

(emphasis

added); see State v. Ginty,

(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,

(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)."

.

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,

(1992), our Supreme Court

addressed the issue of mandatory sentences:

Mandatory sentences usually allow for no judicial discretion. See, e.g., State v. Jefimowicz,

(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,

(1989) (no judicial discretion in mandatory sentencing structure of Graves Act; State v. Des Marets,

(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,

(1993); see also State v. Thomas,

(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,

(App. Div. 1993), certif. denied,

(1994). In

3 See State v. Brimage,

(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,

(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,

(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,

(1999); State v. Spano,

(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

.

11 A-5715-12T3 The judgments under review in these consolidated cases are

reversed and remanded.

12 A-5715-12T3