Opinion
DOCKET NO. A-6083-10T3
03-18-2013
STATE OF NEW JERSEY, Plaintiff-Respondent v. MARK POPE, Defendant-Appellant.
Joseph J. Bell, IV, argued the cause for appellant (The Bell Law Group, PC, attorneys; Mr. Bell, on the brief). Jennifer E. Kmieciak, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Ms. Kmieciak, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Hoffman.
On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 11-05-0172.
Joseph J. Bell, IV, argued the cause for appellant (The Bell Law Group, PC, attorneys; Mr. Bell, on the brief).
Jennifer E. Kmieciak, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Ms. Kmieciak, of counsel and on the brief). PER CURIAM
Defendant Mark Pope appeals from a conviction for third-degree distribution of a controlled dangerous substance within a school zone, contrary to N.J.S.A. 2C:35-7. Specifically, defendant challenges the Law Division judge's decision to deny him admission into Drug Court based upon the judge's determination that defendant was categorically excluded from Drug Court because he committed his offense on school property. Because we agree that defendant was eligible for Drug Court, we reverse and remand.
I.
Pursuant to a negotiated plea agreement with the State, defendant Mark Pope pled guilty to third-degree distribution of marijuana in a school zone, contrary to N.J.S.A. 2C:45-7. In providing the factual basis for his guilty plea, defendant admitted that on October 27, 2010, he distributed less than one ounce of marijuana while actually on school property, specifically, the parking lot of Vernon High School. In exchange for his guilty plea, the State agreed to recommend a three-year term of imprisonment with one year of parole ineligibility. The plea agreement also contemplated, however, that defendant would seek admission into Drug Court.
On July 21, 2011, defendant formally moved pursuant to N.J.S.A. 2C:35-14 for admission into Drug Court, and submitted numerous letters and reports in support of his application. N.J.S.A. 2C:35-14 authorizes a court to impose "special probation" on offenders who are "ineligible for probation due to a conviction for a crime which is subject to a presumption of incarceration or a mandatory minimum period of parole ineligibility[.]" N.J.S.A. 2C:34-14(b)(3) specifically permits special probation for individuals such as defendant, who have committed crimes defined under N.J.S.A. 2C:35-7.
The Sussex County prosecutor opposed plaintiff's application, arguing that his conviction for violating N.J.S.A. 2C:35-7 automatically barred his admission to Drug Court. N.J.S.A. 2C:35-7 generally addresses the disposition of offenders who commit offenses on or within 1000 feet of school property. In 2009, the Legislature added section (b), effective January 12, 2010. L. 2009, c. 192, § 1. That section authorizes a sentencing court to "waive or reduce the minimum term of parole ineligibility[,]" N.J.S.A. 2C:35-7b, based on certain enumerated criteria, but states that the court
shall not waive or reduce the minimum term of parole ineligibility or sentence the defendant to probation if it finds that:
(a) the offense took place while on any school property used for school purposes . . . ; or
(b) the defendant in the course of committing the offense used or threatened violence or was in possession of a firearm.
[N.J.S.A. 2C:35-7b(2).]
The court agreed with the prosecutor that the recent amendments to N.J.S.A. 2C:35-7 contained "strong and clear" language that impliedly revised the eligibility requirements of N.J.S.A. 2C:35-14. Because defendant's offense occurred on school property, the court found that he was categorically excluded from participating in Drug Court. The court therefore denied defendant's application on that basis, without considering the application on its merits, and sentenced him to three-years imprisonment, with one year of parole ineligibility, by order dated August 5, 2011.
On August 17, 2011, defendant appealed the judgment of conviction, arguing that the court had erred in concluding that his N.J.S.A. 2C:35-7 conviction automatically disqualified him from Drug Court admission.
On December 6, 2011, the New Jersey Attorney General submitted a brief on behalf of the State agreeing with defendant that the court did not properly construe the applicable statutes, and requesting that the matter be remanded. In light of this development, on December 22, 2011, defendant was released on bail.
According to the State's brief, the Attorney General has superseded the county prosecutor on this case solely for purposes of this appeal to address "the issue raised by defendant . . . to ensure the uniform and efficient enforcement of the criminal law pursuant to N.J.S.A. 52:17B-98 et seq."
II.
"Our standard of review on legal issues is de novo and we owe no deference to the trial court's 'interpretation of the law and the legal consequences that flow from established facts [.]'" State v. Bradley, 420 N.J. Super. 138, 141 (App. Div. 2011) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). We begin our analysis by distinguishing between regular probation and special probation. Regular probation has long been an authorized disposition under the New Jersey Code of Criminal Justice (Code), N.J.S.A. 2C:1-1 to 2C:104-9. See N.J.S.A. 2C:43-2(b)(2). Regular probation is a non-state prison sentence, although it can be conditioned upon serving not more than 364 days in a county jail. Ibid.
In general terms, a regular probationary sentence is typically imposed for third or fourth-degree offenses which do not contain a specific provision requiring a state prison sentence. For such offenders with no prior criminal record, there is a presumption against incarceration, and for such offenders with a prior record, there is no presumption either for or against a custodial sentence. N.J.S.A. 2C:44-1(e); State v. Meyer, 192 N.J. 421, 433 n.5 (2007). Where there is no presumption either for or against incarceration, the court must weigh the aggravating and mitigating factors enumerated in N.J.S.A. 2C:44-1(a) and (b) in making the "in-out" decision, that is, whether to impose a state prison sentence or a probationary sentence. State v. Clarke, 203 N.J. 166, 176 (2010); Meyer, supra, 192 N.J. at 433 n.5.
For crimes of the first or second degree, there is a presumption of imprisonment, N.J.S.A. 2C:44-1d, which is rarely overcome. State v. Soricelli, 156 N.J. 525, 532-34 (1999). Thus, for such offenders, a regular probationary sentence is almost never appropriate under the Code's general sentencing provisions.
Special probation is another authorized disposition under the Code. It is not contained in N.J.S.A. 2C:43-2b(2), but in N.J.S.A. 2C:35-14. The term "special probation" first appeared in that section when it was amended in 1999. Meyer, supra, 192 N.J. at 434. . . . "[T]hat amendment, together with subsequent amendments, set special probation apart from regular probation, rendering each a separate and distinct sentencing disposition authorized by the Code."
Special probation is designed to divert otherwise prison-bound offenders into an intensive and highly specialized form of probation designed to "address in a new and innovative way the problem of drug-dependent offenders caught in a never-ending cycle of involvement in the criminal justice system[.]" Id. at 434-35. Thus, the Legislature created special probation as a disposition aimed specifically at prison-bound offenders, who would not be eligible for regular probation.
[State v. Bishop, ______ N.J. Super. ______, ______ (App. Div. 2013) (slip op. at 8).]
The term "Drug Court" does not appear anywhere in the plain text of N.J.S.A. 2C:35-14; however, as the Supreme Court has explained, "that statute and Drug Courts serve complementary purposes[.]" Meyer, supra, 192 N.J. at 424.
III.
Defendant argues that the court's categorical denial of his request for Drug Court admission was contrary to the clear language of N.J.S.A. 2C:35-14. Defendant also contends that there was no basis for the court to hold that the Legislature intended to amend the eligibility requirements of N.J.S.A. 2C:35-14 when it revised N.J.S.A. 2C:35-7.
The procedures for admission into the Drug Court are set forth in the Administrative Office of the Courts, Manual for Operation of Adult Drug Courts in New Jersey (Manual), (July 2002), available at http://www.judiciary.state.nj.us/drugcourt/ dctman.pdf. "Drug Courts are a creature of the judiciary[,] and the practices and procedures of that court are set forth in the Drug Court Manual." Clarke, supra, 203 N.J. at 174 (internal quotation marks and citation omitted) (alteration in original). Consideration for admission to Drug Court is clearly defined.
The Drug Court Manual outlines two separate tracks for admission into Drug Court. The applicant must either meet the requirements for special probation pursuant to N.J.S.A. 2C:35-14, track one, or otherwise be
eligible under other sections of the Code of Criminal Justice[,] track two.
Under the first track, to meet the requirements for special probation, the applicant must have committed a crime that is subject to a presumption of incarceration or a mandatory prison term, and the judge must find that the applicant satisfies nine separate factors. A presumption of imprisonment applies to an applicant who is charged with a first or second-degree offense. If the applicant is successful in meeting the requirements for admission under track one, the judge will then impose a five-year period of special probation. Admission under this track is generally obtained with the prosecutor's consent. If the prosecutor does not consent, the trial judge may only admit the applicant under track one if the judge finds a gross and patent abuse of prosecutorial discretion.
The second track permits applicants to be admitted into Drug Court under the general sentencing provisions of the Code of Criminal Justice. An applicant is eligible for Drug Court sentencing under this track if:
a. the person has a drug or alcohol dependence, as determined by a diagnostic assessment and substance abuse treatment and monitoring is likely to benefit the person; and
b. the person has not been previously convicted or adjudicated delinquent for, and does not have a pending charge of murder, aggravated manslaughter, manslaughter, robbery, kidnapping, aggravated assault, aggravated sexual assault or sexual assault, or a similar crime under the laws
of any other state or the United States; and[Id. at 174-76 (internal quotation marks and citations omitted).]
c. the person did not possess a firearm at the time of the present offense and has no history of possession of a firearm during an offense; and
d. no danger to the community is likely to result from the person being placed on probation.
In this case we address two statutory provisions, which on their face contain conflicting language about whether a certain group of drug offenders is eligible for probation. Our review of the relevant statutes leads us to conclude that the recent amendments to N.J.S.A. 2C:35-7 were not intended to exclude certain groups of offenders who otherwise would be eligible for the special probation provisions of N.J.S.A. 2C:35-14. Specifically, we conclude the Legislature's use of the term "probation" in N.J.S.A. 2C:35-7 was not intended to be inclusive of the term "special probation" in N.J.S.A. 2C:35-14.
N.J.S.A. 2C:35-7b(2) provides in relevant part that: "The court shall not waive or reduce the minimum term of parole ineligibility or sentence the defendant to probation if it finds that . . . the offense took place while on any school property used for school purposes . . ." N.J.S.A. 2C:35-7b(2)(a). The trial court relied on this provision to preclude any form of probation, including the "special probation" authorized by N.J.S.A. 2C:35-14, which specifically authorizes a court to impose drug treatment in lieu of imprisonment and undergirds the Drug Court Program.
It is the State's position, through the Attorney General, that the trial court incorrectly interpreted the relevant law. The State agrees with defendant that he is not automatically ineligible for admission to Drug Court simply because the instant offense occurred on school property. While that circumstance is a relevant aggravating factor for the court to consider in deciding whether defendant should ultimately be admitted to Drug Court, it does not in and of itself establish an automatic and categorical bar to Drug Court participation.
The eligibility criteria for "special probation" under N.J.S.A. 2C:35-14, and thus for admission to Drug Court, are comprehensively set forth in that statute. The trial court found that the recent enactment of N.J.S.A. 2C:35-7(b) impliedly amended N.J.S.A. 2C:35-14 by expanding the list of circumstances under which a defendant would be ineligible for special probation. Although there is authority for the proposition that a criminal statute can impliedly amend or even repeal another statute, in this instance, such a construction of the interaction between these two provisions in Chapter 35 is unwarranted, since it is clear from the literal text of N.J.S.A. 2C:35-7b that it only addresses when a court may or may not impose ordinary probation under N.J.S.A. 2C:43-2b.
The trial court's statutory construction was thus erroneous because it failed to distinguish between ordinary probation, which is not at issue in this case, and special probation under N.J.S.A. 2C:35-14, which is the statutory tool by which school-zone defendants, facing an otherwise "mandatory" State Prison term, are sentenced instead to Drug Court. See Clarke, supra, 203 N.J. at 174. N.J.S.A. 2C:35-7b(2)(a) refers only to a defendant's eligibility for ordinary probation when the offense takes place on school property. Specifically, that provision limits the court's ability to sentence a defendant to probation pursuant to subsection b(1), which refers expressly to ordinary probation under N.J.S.A. 2C:43-2b(2). It does not make any references to special probation under N.J.S.A. 2C:35-14.
The statute that defines "special probation," moreover, is comprehensive and exhaustive, establishing very different eligibility criteria, terms and conditions that must be imposed, and revocation and re-sentencing provisions from ordinary probation. It is especially noteworthy that N.J.S.A. 2C:35-14b specifies the circumstances when a defendant is categorically ineligible for special probation. Specifically exempted from that list is the school zone statute. Moreover, the only subset of school zone cases that are automatically disqualified are those involving sales to juveniles:
b. A person shall not be eligible for special probation pursuant to this section if the person is convicted of or adjudicated delinquent for:Therefore, under the plain language of the statute, when there is no juvenile involved, a person convicted of a school zone offense, even one occurring on school property, is not automatically ineligible for special probation. As with any school zone offense, however, the prosecutor is afforded the right to object to the defendant's admission.
. . . .
(3) a crime, other than that defined in section 1 of []L. 1987, c. 101 (C. 2C:35-7) for which a mandatory minimum period of incarceration is prescribed under chapter 35 of this Title or other law; or
(4) an offense that involved the distribution or the conspiracy or attempt to distribute a controlled dangerous analog to a juvenile near or on school property.
[N.J.S.A. 2C:35-14b (emphasis added).]
In this case, there is no indication that the person to whom defendant sold the marijuana while on school property was a juvenile.
On January 19, 2012, the Legislature repealed section (c) of N.J.S.A. 2C:35-15, thereby eliminating the requirement of the court to uphold a prosecutor's objection to a defendant being sentenced to special probation absent a gross and patent abuse of prosecutorial discretion. See L. 2012, c. 23.
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In summary, the special probation statute, N.J.S.A. 2C:35-14, is the controlling provision that governs defendant's eligibility for Drug Court. Applying the plain language of the statute, defendant is not automatically ineligible for treatment in lieu of imprisonment by virtue of the fact that his offense occurred on school property.
Based on our review of the record in light of the arguments advanced on appeal, as well as the recent legislation governing the Drug Court Program, we reverse and vacate defendant's sentence, and remand for resentencing, including consideration of defendant's Drug Court application on the merits. We do not retain jurisdiction.
Reversed and remanded.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION