offense, explaining that the statute refers only to previous
convictions and makes no exceptions for a conviction that
does not result in a prison term. Upholding the Attorney
General’s Guidelines, the Court rejected as contrary to
the legislative goal the Public Defender’s contention that
the Guidelines should incorporate an “interests of
justice” standard. It noted that the Guidelines
incorporate some of the spirit of that standard in the
“catch-all” clause which authorizes prosecutors to waive
enhanced sentencing based on the existence of
compelling extraordinary circumstances, which did not
exist in this case. But see State v. Irrizary, supra (remanded
because the sentencing court failed to properly articulate
reasons for setting parole ineligibility at one-half of the
presumptive term of 50 years incarceration).
In State v. Jimenez, 266 N.J. Super. 560 (App. Div.
1993), the Appellate Division reversed the trial court’s
grant of the defendant’s post-conviction relief motion on
the ground that the prosecutor abused his discretion in
failing to engage in post-conviction negotiations with
defendant under N.J.S.A. 2C35-12, and held that the
Attorney General’s guidelines were unconstitutional
because they permitted prosecutors to agree to a waiver of
the mandatory sentence only if the defendant cooperated
with law enforcement officials in ferreting out criminal
conduct. The Appellate Division held that the
prosecutor’s guidelines, both facially and as applied, were
constitutional and that the defendant failed to satisfy the
heavy burden of demonstrating that the State’s failure to
offer leniency was an arbitrary and capricious exercise of
discretion. The court further found that the application
of the guidelines does not offend any of the policies that
underlie the ex post facto prohibition.
In State v. Reyes, 325 N.J. Super. 166 (App. Div.
1999), the Appellate Division affirmed defendant’s drug
convictions. The court held that the February 1998
Attorney General Interim Guidelines governing plea offers
in Chapter 35 drug cases applied to January 1998 crimes
defendant had committed, and did not violate the
coextensive ex post facto clauses of the federal and state
constitutions. Those guidelines were to apply to all
pending cases, of which defendant’s was one, without
regard to the date the offenses occurred. Ex post facto
considerations, moreover, are generally directed at
legislative -- not executive -- action, and here the Attorney
General neither enacted any “law” nor was given the
power to increase the penal consequences of defendant’s
actions.
In State v. Brimage, 153 N.J. 1 (1998), the Supreme
Court of New Jersey ruled that the Attorney General’s
Guidelines involving N.J.S.A. 2C:35-12 do not promote
uniformity in sentencing -- one of the Code’s
fundamental goals -- because each county has discretion
to adopt its own standard plea offers and policies. While
recognizing the need for some flexibility among the
different counties due to resources, caseloads, backlogs,
and local concerns, the Court held that the statute’s plea
agreement guidelines must be consistent throughout the
State. The Court required the Attorney General to adopt
within 90 days specific, universal standards that all
prosecutors must follow in waiving mandatory minimum
sentences in Chapter 35 matters, which also must spell
out both permissible ranges of plea offers for particular
crimes and permissible bases for upward and downward
departures. The Guidelines may also take into
consideration resources and backlog, must allow for
individual characteristics of the crime and defendant, and
require prosecutors to state on the record their reasons for
choosing to waive or not to waive the mandatory
minimum period of parole ineligibility and reasons for
departing from the Guidelines, (Attorney General
Directive 1998-1), if they do, to permit effective judicial
review. The Court made its ruling prospective only
except for this case and all cases pending on direct appeal.Finally, the Court held that for all pending school
zone cases disposed of by plea agreements, that version of
the Guidelines in effect when the crime occurred should
be followed. The Attorney General’s recommended plea
standards are to be utilized, not the county’s
standardized plea arrangement.In State v. Castaing, 321 N.J. Super. 292 (App. Div.
1999), the court found that the holding in State v.
Brimage, 153 N.J. 1 (1998), applies to post-conviction
sentencing agreements. Thus defendants convicted after
trial are “entitled to the Brimage goal of statewide
uniformity in post-conviction sentence agreements” even
though here the prosecutor would not engage in any such
negotiations. However, because the record revealed no
information concerning whether or not defendant could
provide substantial cooperation to law enforcement
pursuant to Part X of the Attorney General’s Guidelines for
Negotiating Cases under N.J.S.A. 2C:35-12, the court
vacated defendant’s sentence and remanded the matter so
that the parties could conduct post-conviction
sentencing negotiations.The Appellate Division in State v. Coulter, 326 N.J.
Super. 584 (App. Div. 1999), held that defendant had
waived his right to challenge the prosecutor’s actions for
purposes of the N.J.S.A. 2C:35-12 Plea Negotiation
Guidelines under State v. Brimage, 153 N.J. 1 (1998),