parole ineligibility, and whether the prosecutor, having
originally waived the parole disqualifier, has the
authority at resentencing to demand the imposition of
the period of parole ineligibility. The Court also
addressed the issue of whether the prosecutor’s exercise of
discretion to waive the period of parole ineligibility,
thereby binding the court’s sentencing power, violates
the separation of powers doctrine.
Defendants each pled guilty to school zone offenses
under N.J.S.A. 2C:35-7, and by virtue of their negotiated
plea agreements pursuant to N.J.S.A. 2C:35-12, the
prosecutor agreed to waive the three-year mandatory
minimum term. They held that a guilty plea did not bar
the right to appeal a sentence imposed at a violation of
probation hearing when the sentence was based on the
court’s understanding that it was bound to impose a
parole disqualifier because the prosecutor would not
again waive the term under section 12. Relying on
Lagares, the Court interpreted § 12 to require guidelines
for channeling the exercise of prosecutorial discretion.
Thus, it reasoned that under the separation of powers
provision of Art. III, para. 1, of the New Jersey
Constitution, N.J.S.A. 2C:35-12 must be interpreted
“to require prosecutors to adopt guidelines to channel the
exercise of prosecutorial discretion” and “to state on the
record the reasons for their decision to waive or not to
waive the parole disqualifier, thereby allowing effective
judicial review of the reason.” Where a defendant shows
clearly and convincingly that the prosecutor’s exercise of
discretion was arbitrary and capricious, he would be
entitled to judicial relief.
Also, the Court held that the sentencing court is not
compelled to impose a mandatory period of parole
ineligibility under section 7 on resentencing because of a
probation violation when the prosecutor has waived the
parole disqualifier at the time of initial sentencing in
conjunction with a plea agreement pursuant to section
- The Court reasoned that once waived, the parole
disqualifier is no longer “mandatory” for purposes of
resentencing for a violation of probation. Furthermore,
the prosecutor retains no sentencing authority on
resentencing with regard to a parole disqualifier. The
Court did note, however, that as a matter of judicial
discretion the sentencing court may impose a period of
parole ineligibility in conjunction with the imposition of
a presumptive custodial term. See also, State v. Gonzalez,
254 N.J. Super. 300 (App. Div. 1992), upholding
N.J.S.A. 2C:35-12 against a separation of powers
challenge, and State v. Perez, 304 N.J. Super. 609 (App.
Div. 1997), remanding to the trial court to determine
whether the prosecutor had arbitrarily refused to
negotiate a sentence recommendation, and to permit the
prosecutor to state reasons for non-waiver of the
mandatory minimum term.In State v. Shaw, 131 N.J. 1 (1993), the Supreme
Court considered the validity of a plea agreement under
which a prosecutor’s waiver of the period of parole
ineligibility mandated by N.J.S.A. 2C:35-7 is
conditioned upon the defendant voluntarily appearing
for sentencing. The Court concluded that such an
agreement is valid because it “fosters ... several law
enforcement purposes set forth in the [Comprehensive
Drug Reform] Act, including facilitation, where feasible,
of the rehabilitation of drug-dependent persons,
minimization of pretrial delay, prompt disposition of
drug-related criminal charges, and swift imposition of
fair and certain punishment.” However, the Court also
concluded that not every violation of the waiver
conditions by an accused defendant will result in
automatic imposition of a mandatory sentence. Instead,
the trial court must consider the explanation for the non-
appearance in the context of all the circumstances, and
whether in light of those circumstances, the breach is
material to the plea and therefore warrants revocation of
the prosecutor’s waiver of mandatory sentence. The
Court concluded that to be valid, guidelines for the
prosecutor’s inclusion of “no appearance/no waiver”
provisions in plea bargain offers must be “integrated
under the Vasquez.
In State v. Gerns, 145 N.J. 216 (1996), the Supreme
Court held that it was neither arbitrary nor capricious for
the prosecutor to base his or her decision to recommend
a waiver of the mandatory sentence required by N.J.S.A.
2C:35-7 on the value of the cooperation received from a
defendant. However, the Court requested the Attorney
General to review statewide sentencing practices and
experience under the Attorney General Guidelines
promulgated pursuant to State v. Vasquez, 129 N.J. 189
(1992), because the Court was concerned that allowing
the counties to adopt their own guidelines in conjunction
with significant prosecutorial discretion could lead to
disparity in sentencing.In State v. Kirk, 145 N.J. 159 (1996), the New Jersey
Supreme Court held that the Warren County Prosecutor
did not abuse his discretion or contravene the Attorney
General’s Guidelines pursuant to Lagares in refusing to
waive an extended term sentence for a repeat drug
offender. The Court rejected the Appellate Division’s
conclusion that defendant was entitled to waiver because
he had not served a prison term for two prior New York
drug convictions and was simply passing through New
Jersey on an interstate highway at the time of the present