where defendant never disputed the State’s designation
of the applicable aggravating factors or the absence of any
mitigating factors at the time of plea or at sentencing.
The existing record failed to establish plain error in
determining the relevant plea negotiation factors, and the
prosecutor’s conclusions involved no patent and gross
abuse of discretion.
In State v. Veney, 327 N.J. Super. 458 (App. Div.
2000), the Appellate Division dismissed the State’s
appeal, concluding that the State had no statutory right
to appeal the sentence. The State had appealed from the
denial of a motion to vacate a plea offer after it realized its
sentence recommendation was based on a miscalculation
under the Attorney General’s Guidelines as required in
State v. Brimage, 153 N.J. 1 (1998), and which would
have increased the base sentence and mandatory
minimum term. The appellate court did note in dictum,
however, that because mistakes in applying the Brimage
Guidelines do not promote the goal of uniformity, the
State should be permitted to withdraw the offer where
the mistake is “honest” and the application is made prior
to sentencing. The court also rejected the State’s
argument that defendant’s sentence was illegal.
In State v. Rolex, 329 N.J. Super. 220 (App. Div.),
certif. granted, 165 N.J.486 (2000), the court addressed
the issue of the impact Brimage had upon the “no
appearance/no waiver” plea agreement approved in State
v. Shaw, 131 N.J. 1 (1993). Defendant argued that the
guidelines set forth in Attorney General Directive No.
1998-1 violate Brimage by allowing for similarly situated
defendants in different counties to receive disparate
sentences. He argued that it would be “impossible” to
formulate guidelines concerning “no appearance/no
waiver” plea offers that would comply with Brimage, and
that Brimage implicitly overruled Shaw and conse-
quently, a prosecutor may no longer insist upon a “no
appearance/no waiver” provision in a plea agreement that
is subject to the Attorney General guidelines. While
noting that the “vague” guidelines under this directive do
give an individual county prosecutor wide discretion to
determine the circumstances under which to include a
“no appearance/no waiver” provision in a plea offer, the
Appellate Division stopped short of declaring it invalid.
Instead, the court remanded the case to the trial court to
afford the Attorney General an opportunity to participate
in the appeal, to address the question whether it is feasible
to devise more specific guidelines than are set forth in the
directive, and assuming “no appearance/no waiver” plea
agreements remain valid after Brimage to consider
whether there is a need for statewide guidelines regarding
no waiver provisions, and if so whether those guidelines
should provide that, under some circumstances, a
defendant’s failure to appear may result in a sentence
which includes a period of parole ineligibility that is
longer than the period provided in the plea agreement,
but shorter than the full three years mandated by
N.J.S.A. 2C:35-7.C. Merger
State v. Dillihay, 127 N.J. 42 (1992); State v. Brana,
127 N.J. 64 (1992) - In these companion cases, the
Supreme Court considered the validity of the anti-merger
provision of N.J.S.A. 2C:35-7, which prohibits
distribution of controlled dangerous substances within a
school zone, as applied to a defendant who has
committed first- and second-degree violations of
N.J.S.A. 2C:35-5, the provision that prohibits the
manufacturing, distribution, or dispensing of controlled
dangerous substances. The Court held that based on
principles of double jeopardy, convictions for school-
zone offenses must merge into convictions for related
first- or second-degree Section 5 offenses. However, in
order to fulfill the legislative intent, the mandatory
minimum required by the school-zone statute “survives”
the merger of these offenses.State v. Blow, 123 N.J. 472 (1991); State v. Gonzalez,
123 N.J. 462 (1991) - In these companion cases, the
Supreme Court considered the anti-merger provision of
N.J.S.A. 2C:35-7, distribution within a school zone, as
applied to a defendant who has committed third- and
fourth-degree violations of N.J.S.A. 2C:35-5, prohibit-
ing the manufacturing, distribution, or dispensing of
controlled dangerous substances. Relying on the dissent
of Judge Skill man, J.A.D., the Court held that based on
general principles of merger, Section 5 convictions merge
into convictions for related third- and fourth-degree
Section 7 offenses.In State v. Milligan, 71 N.J. 373 (1976), the Court
explained that the Legislature intended each of certain
specified components of a transaction leading to and
including the distribution of a controlled dangerous
substance to be a distinct and separate offense. Thus, the
offense of possession with intent to distribute and
distribution of a controlled dangerous substance do not
merge.State v. Davis, 68 N.J. 69 (1975), held that
distribution and possession are distinct criminal offenses,
not only in terms of the length of each lasts, but also in
terms of what particular stage of drug trafficking each
represents. Simple possession of drugs looks to