State v. A.T.C. (081201)(Warren County and Statewide) ( 2019 )

SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.
State v. A.T.C. (A-28-18) (081201)
Argued April 23, 2019 -- Decided August 8, 2019
PATTERSON, J., writing for the Court.
In this appeal, the Court considers defendant A.T.C.’s facial constitutional
challenge, premised on separation of powers principles, to the Jessica Lunsford Act
(JLA), L. 2014, c. 7, § 1 (codified at N.J.S.A. 2C:14-2(a), (d)).
Defendant was arrested and charged with possession and distribution of child
pornography. Defendant admitted that his computer files included pornographic videos
of his girlfriend’s daughter, that he had recorded those videos beginning when the child
was ten years old, and that he had digitally penetrated the victim’s vagina. Pursuant to a
plea agreement that the prosecutor offered in accordance with N.J.S.A. 2C:14-2(d),
defendant pled guilty to aggravated sexual assault of a child less than thirteen years of
age. Defendant moved to modify his sentence, contending in relevant part that the JLA
contravenes the separation of powers doctrine by vesting in the prosecutor sentencing
authority constitutionally delegated to the judiciary.
The court denied defendant’s motion. There was no discussion at defendant’s plea
hearing or sentencing hearing as to why the “interests of the victim” warranted a
departure, or the degree of the departure, from the JLA’s mandatory twenty-five-year
term. Consistent with the plea agreement, the court imposed a term of twenty years’
incarceration, with twenty years’ parole ineligibility, for defendant’s conviction of one
count of first-degree aggravated sexual assault of a victim less than thirteen years of age.
The Appellate Division rejected defendant’s separation of powers challenge to the
JLA’s mandatory sentencing provisions, 454 N.J. Super. 235, 250-54 (App. Div. 2018).
The Court granted defendant’s petition for certification, “limited to defendant’s
facial challenge to N.J.S.A. 2C:14-2(d) as unconstitutional for violating the separation of
powers doctrine.” 236 N.J. 112 (2018). The Court stated that in addressing the question,
it “may consider whether the State -- through the sentencing record and the [JLA]
Guidelines -- sufficiently explained its use of discretion to permit effective judicial
review as required in State v. Vasquez, 129 N.J. 189 (1992), such that A.T.C.’s sentence
did not violate the separation of powers doctrine.” Ibid.1
HELD: The JLA does not violate the separation of powers doctrine, provided that the
State presents a statement of reasons explaining its decision to depart from the twenty-
five year mandatory minimum sentence specified in N.J.S.A. 2C:14-2(a), and the court
reviews the prosecutor’s exercise of discretion to determine whether it was arbitrary and
capricious. So that the standard adopted today may be applied in this matter, the Court
remands to the sentencing court for further proceedings in accordance with this opinion.
1. The JLA imposes a term of incarceration of twenty-five years to life, with a period of
parole ineligibility of at least twenty-five years, on an offender convicted of an
aggravated sexual assault in which the victim is less than thirteen years old. N.J.S.A.
2C:14-2(a)(1). It also permits a prosecutor, “in consideration of the interests of the
victim,” to waive the twenty-five-year mandatory minimum and offer the defendant a
negotiated plea agreement in which the term of incarceration and the period of parole
ineligibility may not be less than fifteen years. N.J.S.A. 2C:14-2(d). The sentencing
court may accept that negotiated plea agreement, and if it does so, it must sentence the
defendant in accordance with that agreement. (pp. 12-14)
2. The Attorney General has issued guidelines that govern the exercise of prosecutorial
discretion under the statute. The JLA Guidelines, however, do not require the prosecutor
to provide to the court a statement of reasons justifying the proposed reduction of the
twenty-five-year term of incarceration and period of parole ineligibility imposed by
N.J.S.A. 2C:14-2(a). Accordingly, no statutory provision or Guideline ensures that the
court is informed of the prosecutor’s reasoning when it determines whether to accept or
reject a plea agreement offered pursuant to N.J.S.A. 2C:14-2(a). (pp. 14-17)
3. The Court reviews separation of powers principles and notes that criminal sentencing
is a function that does not fit neatly within a single branch of government. (pp. 17-21)
4. In State v. Lagares, the Court considered a defendant’s separation of powers challenge
to a statute that delegated sentencing discretion to prosecutors in certain drug cases. 127
N.J. 20, 24 (1992). The Court agreed with the defendant that, in the absence of
guidelines or “any avenue for effective judicial review,” the statute at issue would be
unconstitutional. Id. at 31. Noting its obligation “to so construe the statute as to render it
constitutional if it is reasonably susceptible to such interpretation,” the Court imposed
three requirements. Id. at 32. First, it interpreted the statute to require the adoption of
prosecutorial guidelines. Ibid. Second, “to permit effective review of prosecutorial
sentencing decisions,” the Court required prosecutors to “state on the trial court record
the reasons for seeking an extended sentence.” Ibid. Finally, the Court concluded that
“an extended term may be denied or vacated” upon a showing that the prosecutor’s
decision to seek that sentence was arbitrary and capricious. Id. at 33. (pp. 21-23)
5. In Vasquez, the Court considered the separation of powers implications of plea
bargaining under a provision of the Comprehensive Drug Reform Act that substantially
2
expanded prosecutorial discretion in drug prosecution plea agreements. 129 N.J. at 197-
209. The defendant argued that the Legislature’s grant of prosecutorial discretion in the
provision contravened separation of powers principles. Id. at 195. The Court viewed the
separation of powers issue in Vasquez to be “similar to that resolved in Lagares,” and
concluded that “the same interpretation is appropriate.” Id. at 196. It construed the
provision to preserve judicial authority to reject a plea bargain or post-conviction
agreement that waived, or did not waive, the statutory parole disqualifier in the event that
the prosecutor’s discretion was exercised in an arbitrary or capricious manner. In the
wake of Vasquez, the Attorney General issued Guidelines for the drug offense sentencing
statutes that the Court considered in that decision. (pp. 23-26)
6. In State v. Brimage, the Court held that the Guidelines issued in response to Vasquez
fell short of the mark, 153 N.J. 1, 14-15 (1998), and ordered the Attorney General
promulgate “new plea offer guidelines, which all counties must follow,” id. at 24-25. It
directed that the revised guidelines “specify permissible ranges of plea offers for
particular crimes” and that they be “more explicit regarding permissible bases for upward
and downward departures.” Id. at 25. “[T]o permit effective judicial review,” the Court
required that prosecutors “state on the record their reasons for choosing to waive or not to
waive the mandatory minimum period of parole ineligibility specified in the statute,” and
their reasons for any departure from the guidelines. Ibid. (pp. 26-28)
7. The JLA Guidelines that govern plea bargaining pursuant to N.J.S.A. 2C:14-2(d)
satisfy Lagares, Vasquez, and Brimage, with one necessary addition: they should be
amended to instruct prosecutors to provide the sentencing court with a statement of
reasons for a decision to offer a defendant, in a plea agreement, a term of incarceration or
a term of parole ineligibility between fifteen and twenty-five years. Such a statement is
essential to effective judicial review for the arbitrary and capricious exercise of
prosecutorial discretion under N.J.S.A. 2C:14-2(d). The Court recognizes that the
statement of reasons may implicate confidential information regarding the victim and
members of the victim’s immediate family. In the event that a prosecutor concludes that
it is necessary in a given case to reveal such confidential information in a statement of
reasons, the court should hold an in camera hearing to consider that information. In this
case, the prosecutor did not provide the sentencing court with a statement of reasons for
his decision to offer defendant a twenty-year term of incarceration with a twenty-year
period of parole ineligibility. On remand, the prosecutor should provide such a statement
of reasons to the sentencing court. The court should review whether the prosecutor’s
exercise of discretion was arbitrary and capricious. (pp. 28-32)
The matter is remanded to the sentencing court for further proceedings.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-
VINA, SOLOMON, and TIMPONE join in JUSTICE PATTERSON’S opinion.
3
SUPREME COURT OF NEW JERSEY
A-28 September Term 2018
081201
State of New Jersey,
Plaintiff-Respondent,
v.
A.T.C.,
Defendant-Appellant.
On certification to the Superior Court,
Appellate Division, whose opinion is reported at
454 N.J. Super. 235 (App. Div. 2018).
Argued Decided
April 23, 2019 August 8, 2019
John Douard, Assistant Deputy Public Defender, argued
the cause for appellant (Joseph E. Krakora, Public
Defender, attorney; John Douard, of counsel and on the
briefs).
Jennifer E. Kmieciak, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Jennifer E. Kmieciak, of counsel and
on the briefs, and Jana Robinson, Deputy Attorney
General, on the briefs).
JUSTICE PATTERSON delivered the opinion of the Court.
1
The Jessica Lunsford Act (JLA), L. 2014, c. 7, § 1 (codified at N.J.S.A.
2C:14-2(a), (d)) imposes a term of incarceration of twenty-five years to life,
with a period of parole ineligibility of at least twenty-five years, on an
offender convicted of an aggravated sexual assault in which the victim is less
than thirteen years old. N.J.S.A. 2C:14-2(a)(1). The statute permits a
prosecutor, “in consideration of the interests of the victim,” to waive the
twenty-five-year mandatory minimum and offer the defendant a negotiated
plea agreement in which the term of incarceration and the period of parole
ineligibility may not be less than fifteen years. N.J.S.A. 2C:14-2(d). The
sentencing court may accept that negotiated plea agreement, and if it does so,
it must sentence the defendant in accordance with that agreement. The
Attorney General has issued the Uniform Plea Negotiation Guidelines to
Implement the Jessica Lunsford Act, P.L. 2014, c. 7 (May 29, 2014), https://
www.state.nj.us/lps/dcj/agguide/lunsford_act.pdf (JLA Guidelines), which
governs the exercise of prosecutorial discretion under the statute.
In this appeal, we consider defendant A.T.C.’s facial constitutional
challenge, premised on separation of powers principles, to the JLA. Pursuant
to a plea agreement that the prosecutor offered in accordance with N.J.S.A.
2C:14-2(d), which called for a reduced term of twenty years’ incarceration and
2
twenty years’ parole ineligibility, defendant pled guilty to a charge of
aggravated sexual assault of a child less than thirteen years of age.
Prior to sentencing, defendant moved to modify his sentence, arguing
that he should have been sentenced to fifteen years of incarceration rather than
twenty years. He contended that the JLA and the JLA Guidelines violated the
separation of powers doctrine. Defendant asserted that he should be exempt
from sentencing under the JLA, or in the alternative, the JLA should be
construed to authorize the court to sentence him to a term of incarceration as
low as fifteen years. Rejecting that argument, the sentencing court denied the
motion to modify the sentence. The Appellate Division affirmed that
determination. State v. A.T.C., 454 N.J. Super. 235, 250-54 (App. Div. 2018).
We hold that the JLA does not violate separation of powers principles
provided that (1) the State presents a statement of reasons explaining the
departure from the twenty-five year mandatory minimum sentence specified in
N.J.S.A. 2C:14-2(a), and (2) the sentencing court reviews the prosecutor’s
exercise of discretion to “protect against arbitrary and capricious prosecutorial
decisions.” State v. Vasquez, 129 N.J. 189, 196 (1992). We therefore remand
the matter to the sentencing court so that the prosecutor may provide a
statement of reasons for the decision to waive N.J.S.A. 2C:14-2(a)’s twenty-
five-year term of incarceration and parole disqualifier “in consideration of the
3
interests of the victim,” and the court may determine whether that decision was
arbitrary and capricious.
I.
A.
In a 2014 investigation of internet crimes against children, the Passaic
County Internet Crime Task Force concluded that defendant had made
computer files containing child pornography available for other users of file-
sharing services to download. Police officers executed a search warrant at the
home that defendant had shared for seven years with his girlfriend and her
minor daughter and found child pornography on defendant’s computer.
Defendant was arrested and charged with four counts of second-degree
distribution of child pornography, contrary to N.J.S.A. 2C:24-4(b)(5)(a)(i), and
four counts of third-degree possession of child pornography, contrary to
N.J.S.A. 2C:24-4(b)(5)(b). Defendant admitted that his computer files
included pornographic videos of his girlfriend’s daughter and that he had
recorded those videos on a number of occasions beginning when the child was
ten years old.
The victim, then twelve years old, told police that defendant had been
sexually abusing her since she was eight years old. She stated that defendant,
ignoring her objections, had touched her vagina many times. Some of the
4
videos found in defendant’s computer files show defendant touching the
victim’s vagina while she audibly implores him to leave her alone.
Defendant waived his right to indictment and a trial by jury. Pursuant to
a plea agreement with the State, defendant pled guilty to an accusation
charging him with first-degree sexual assault of a child under thirteen, contrary
to N.J.S.A. 2C:14-2(a)(1), an offense subject to the mandatory minimum term
of incarceration set forth in the JLA, as well as second-degree endangering the
welfare of a child by distribution of child pornography, contrary to N.J.S.A.
2C:24-4(b)(5)(a). At his plea hearing, defendant provided a factual basis for
both charges; with respect to the first-degree aggravated sexual assault of a
child under thirteen, defendant admitted that he had digitally penetrated the
victim’s vagina.
At defendant’s plea hearing, the court identified the recommended term
of incarceration for defendant’s aggravated sexual assault conviction pursuant
to the plea agreement between the State and defendant: a twenty-year term of
incarceration, with a twenty-year period of parole ineligibility. The court
confirmed defendant’s understanding that if he were sentenced in accordance
with his plea agreement, he would serve all of his twenty-year prison sentence
and would not be eligible for parole prior to the expiration of that sentence.
The court accepted defendant’s plea of guilty to both charges.
5
After his guilty plea, but prior to the scheduled date of his sentencing,
defendant moved to modify his sentence. His motion was premised in part on
a contention that the JLA contravenes the separation of powers doctrine by
vesting in the prosecutor sentencing authority constitutionally delegated to the
judiciary. 1
The court denied defendant’s motion. It held that because sentencing
courts retain the right to reject plea agreements under the JLA in the interest s
of justice, and the JLA preserves “checks and balances” between the executive
and judicial branches, the statute did not run afoul of the separation of powers
doctrine. The court also found that defendant’s motion to modify his sentence
was premature because the motion was filed prior to sentencing.
At defendant’s sentencing hearing, the court found that the aggravating
factors outweighed the mitigating factors. 2 Defendant argued that he should
1
Defendant also argued before the sentencing court that he should be exempt
from the JLA, or sentenced to a term of incarceration shorter than that required
by the JLA, because a minor amendment to N.J.S.A. 2C:14-2 that shortly
preceded the JLA gave rise to an ambiguity in that statute and restored the pre-
JLA sentencing range for his first-degree offense. See L. 2013, c. 214, § 1; L.
2014, c. 7, § 1. The sentencing court rejected that argument, and the Appellate
Division affirmed. A.T.C., 454 N.J. Super. at 248-50. That argument is not
relevant to this appeal.
2
The court found aggravating factors one (“[t]he nature and circumstances of
the offense”), two (“[t]he gravity and seriousness of harm inflicted on the
victim”), three (“[t]he risk that the defendant will commit another offense”),
and nine (“[t]he need for deterring the defendant and others from violating the
6
not be sentenced pursuant to the JLA, or, in the alternative, that he should be
sentenced under the JLA to a fifteen-year term of incarceration, not the
twenty-year term contemplated by the plea agreement. The prosecutor argued
that the harm to the victim, among other factors, warranted the sentence
recommended by the State.
Although the State advised the sentencing court prior to defendant’s
sentencing that it had “balance[d] the relevant factors set forth by the Attorney
General Guidelines,” it did not present a statement of reasons justifying its
decision to waive the twenty-five-year term of incarceration and period of
parole ineligibility prescribed by N.J.S.A. 2C:14-2(a). There was no
discussion at either defendant’s plea hearing or his sentencing hearing as to
why the “interests of the victim” warranted a departure, or the degree of the
departure, from the JLA’s mandatory twenty-five-year term. See N.J.S.A.
2C:14-2(d).
law”). N.J.S.A. 2C:44-1(a)(1), (2), (3), (9). It also found mitigating factors
six (“[t]he defendant has compensated or will compensate the victim of his
conduct for the damage or injury that [she] sustained, or will participate in a
program of community service”), and seven (“[t]he defendant has no history of
prior delinquency or criminal activity or has led a law-abiding life for a
substantial period of time before the commission of the present offense”).
N.J.S.A. 2C:44-1(b)(6), (7).
7
Consistent with the plea agreement, the court imposed a term of twenty
years’ incarceration, with twenty years’ parole ineligibility, for defendant’s
conviction of one count of first-degree aggravated sexual assault of a victim
less than thirteen years of age. It imposed a concurrent twenty-year term, with
twenty years’ parole ineligibility, for defendant’s conviction of distribution of
child pornography. The court also sentenced defendant to parole supervision
for life, N.J.S.A. 2C:43-6.4; mandated that he comply with the requirements of
Megan’s Law, N.J.S.A. 2C:7-1 to -23; and assessed statutory fines and
penalties, N.J.S.A. 2C:43-3.1 to -3.3, -3.6 to -3.8; N.J.S.A. 2C:14-10.
B.
Defendant appealed his convictions and the court’s order denying his
motion to modify his sentence. He asserted, among other arguments, that the
JLA is facially unconstitutional because it violates the separation of powers
doctrine.
The Appellate Division rejected defendant’s separation of powers
challenge to the JLA’s mandatory sentencing provisions. A.T.C., 454 N.J.
Super. at 250-54. It reaffirmed the Legislature’s sole authority to define what
conduct constitutes a crime and to determine punishment for that conduct,
including the imposition of mandatory sentences. Id. at 251. The Appellate
Division noted, however, that the Legislature “cannot give the prosecuting
8
attorney the authority, after a conviction, to decide what the punishment shall
be. That is a judicial function.” Id. at 251-52 (quoting State v. Todd, 238 N.J.
Super. 445, 455 (App. Div. 1990)). It deemed the allocation of authority in
plea bargaining under N.J.S.A. 2C:14-2(d) to comport with the separation of
powers doctrine because the statute “reserve[s] to the judiciary the power to
approve or reject any agreement between the defendant and the State.” Id. at
252 (alteration in original) (quoting Todd, 238 N.J. Super. at 462).
The Appellate Division vacated defendant’s sentence on grounds
irrelevant to this appeal, 3 and remanded for resentencing. Id. at 258-59.
C.
This Court granted defendant’s petition for certification, “limited to
defendant’s facial challenge to N.J.S.A. 2C:14-2(d) as unconstitutional for
3
The Appellate Division held that the sentencing court did not sufficiently
explain its reasons for finding aggravating factors one and two. A.T.C., 454
N.J. Super. at 254-58. It directed that on remand, the court “fully detail the
factual basis for each aggravating and mitigating factor, . . . consider whether
any impermissible double-counting will result, and . . . perform the required
qualitative weighing and balancing of the factors” pursuant to statutory
guidelines. Id. at 259. In addition, the Appellate Division held -- as the State
conceded -- that the twenty-year term of incarceration that the sentencing court
imposed for defendant’s conviction of second-degree endangering the welfare
of a child by distribution of child pornography, contrary to N.J.S.A. 2C:24-
4(b)(5)(a), was an illegal sentence. Id. at 258-59. The Appellate Division
directed the court on remand to resentence defendant for his endangering
conviction within the range of the ordinary five- to ten-year term of
incarceration for a second-degree offense, with a maximum period of parole
ineligibility of one-half of the prison term. Ibid.
9
violating the separation of powers doctrine.” 236 N.J. 112 (2018). The Court
stated that in addressing the question, it “may consider whether the State --
through the sentencing record and the [JLA] Guidelines -- sufficiently
explained its use of discretion to permit effective judicial review as required in
State v. Vasquez, 129 N.J. 189 (1992), such that A.T.C.’s sentence did not
violate the separation of powers doctrine.” Ibid.II.
A.
Defendant contends that the JLA is facially unconstitutional under
Vasquez, 129 N.J. at 196, and State v. Lagares, 127 N.J. 20, 26-33 (1992),
because it authorizes a prosecutor to negotiate a plea agreement with a
recommended sentence outside the statutory range without presenting a
statement of reasons that would allow for judicial review. Defendant argues
that, in contrast to other sentencing statutes that the Court has upheld against
separation of powers challenges, the JLA affords prosecutors the discretion to
determine the precise number of years, within a range of fifteen to twenty-five
years, that a defendant will serve in prison. In his supplemental brief,
defendant contends that the JLA Guidelines cannot ensure effective judicial
review because they are based not on defendant-specific criteria, but on the
interests of the victim.
10
Defendant urges the Court to hold the JLA unconstitutional unless the
Legislature amends it to confer on sentencing judges the discretion to sentence
defendants to any term of incarceration between fifteen and twenty-five years.
In the alternative, he asks the Court to mandate revised JLA Guidelines
requiring prosecutors to provide to the sentencing court reasons for a reduced
sentence that are amenable to judicial review.
B.
The State contends that the JLA comports with separation of powers
principles, because the JLA Guidelines properly channel prosecutorial
discretion in plea-bargaining pursuant to N.J.S.A. 2C:14-2(d). It
acknowledges that in accord with N.J.S.A. 2C:14-2(d)’s emphasis on the
victim’s interests, the JLA Guidelines differ from the Guidelines promulgated
for certain drug prosecutions pursuant to Vasquez and State v. Brimage, 153
N.J. 1, 22-23 (1998). The State asserts, however, that the JLA Guidelines
provide for effective judicial review when a prosecutor offers a defendant a
plea agreement that departs from the twenty-five-years-to-life term of
incarceration required by N.J.S.A. 2C:14-2(a). It enumerates several
applications of the JLA Guidelines factors that might prompt a prosecutor to
depart from the statutory term and are subject to judicial review.
11
The State objects to any requirement that it disclose certain categories of
sensitive information related to a child victim when it presents a statement of
reasons to the sentencing court.
III.
A.
Pursuant to N.J.S.A. 2C:14-2(a), “[a]n actor is guilty of aggravated
sexual assault if he commits an act of sexual penetration with another person
under any one of the following circumstances.” The statute enumerates seven
circumstances under which an act of sexual penetration constitutes aggravated
sexual assault, one of which is that “[t]he victim is less than 13 years old.”
N.J.S.A. 2C:14-2(a)(1).
Before the Legislature enacted the JLA, defendants convicted of
violations of N.J.S.A. 2C:14-2(a), including those convicted of aggravated
sexual assault against a child less than thirteen years old, contrary to N.J.S.A.
2C:14-2(a)(1), were sentenced within the ten- to twenty-year range set forth in
N.J.S.A. 2C:43-6(a)(1) for first-degree offenses. N.J.S.A. 2C:14-2 (2013).
On May 15, 2014, the Legislature enacted the JLA. L. 2014, c. 7, § 1.4
The JLA significantly enhanced the sentencing exposure of defendants
4
The Legislature based New Jersey’s JLA in part on a Florida statute, the
Jessica Lunsford Act, 2005 Fla. Laws c. 28. A. Judiciary Comm. Statement to
A. 892 (Feb. 24, 2014). The Florida act, named for a nine-year-old Florida girl
12
convicted of the aggravated sexual assault of a child under thirteen years of
age. It provides in part that,
[e]xcept as otherwise provided in subsection d. of this
section, a person convicted under paragraph (1) of this
subsection shall be sentenced to a specific term of years
which shall be fixed by the court and shall be between
25 years and life imprisonment of which the person
shall serve 25 years before being eligible for parole,
unless a longer term of parole ineligibility is otherwise
provided pursuant to this Title.
[N.J.S.A. 2C:14-2(a).]
A second provision of the JLA, authorizing a reduction in N.J.S.A.
2C:14-2(a)’s enhanced mandatory minimum term of incarceration by virtue of
a negotiated plea agreement, was introduced in the Senate Committee
Substitute for Senate Bill No. 215. See S. Law & Pub. Safety Comm.
Statement to S. 215 1 (Jan. 30, 2014). As enacted, that subsection provides:
Notwithstanding the provisions of subsection a. of this
section, where a defendant is charged with a violation
under paragraph (1) of subsection a. of this section, the
prosecutor, in consideration of the interests of the
victim, may offer a negotiated plea agreement in which
the defendant would be sentenced to a specific term of
who was kidnapped, sexually assaulted, and murdered by a registered sex
offender, imposed a twenty-five-year mandatory term of imprisonment on
defendants convicted of certain sexual crimes against children and mandated
“satellite monitoring to track the location of sex offenders after release.” Ibid.
The satellite monitoring provisions of Florida’s Jessica Lunsford Act were
substantially replicated in a statute enacted by the New Jersey Legislature in
2007. Compare Fla. Stat. §§ 947.1405, 948.063, 948.11, 948.30(3), with
N.J.S.A. 30:4-123.89 to -123.99.
13
imprisonment of not less than 15 years, during which
the defendant shall not be eligible for parole. In such
event, the court may accept the negotiated plea
agreement and upon such conviction shall impose the
term of imprisonment and period of parole ineligibility
as provided for in the plea agreement, and may not
impose a lesser term of imprisonment or parole or a
lesser period of parole ineligibility than that expressly
provided in the plea agreement. The Attorney General
shall develop guidelines to ensure the uniform exercise
of discretion in making determinations regarding a
negotiated reduction in the term of imprisonment and
period of parole ineligibility set forth in subsection a.
of this section.
[N.J.S.A. 2C:14-2(d).]
According to the Attorney General, N.J.S.A. 2C:14-2(d) was enacted in
recognition of “the need to provide an incentive for guilty defendants to plead
guilty to spare the victim from having to participate in a trial.” JLA
Guidelines at 1.
B.
As the Legislature directed, the Attorney General issued the JLA
Guidelines to the Division of Criminal Justice, for use in cases prosecuted by
the Division, and to county prosecutors. In the JLA Guidelines, the Attorney
General identified the following “factors and circumstances in consideration of
the interests of the victim”:
a. The degree of physical and emotional harm suffered
by the victim and members of the victim’s immediate
family;
14
b. The interest of the victim and members of the
victim’s immediate family in avoiding the need to
testify at trial or a pretrial hearing;
c. The interest of the victim and members of the
victim’s immediate family in avoiding the need to listen
to testimony recounting the crime and/or its impact;
d. The immediate and long-term interest of the victim
and members of the victim’s immediate family in not
having details of the crime and its impact publicized at
a trial;
e. The interest of the victim and members of the
victim’s immediate family in the swiftest possible
resolution of the criminal matter;
f. The interest of the victim and members of the
victim’s immediate family in the certainty of conviction
resulting from a guilty plea;
g. the position of the victim, where appropriate given
his or her age, and the victim’s parent(s)/legal
guardian(s) regarding the plea agreement; and
h. the prosecutor’s assessment of the likelihood of
obtaining a guilty verdict at a trial, recognizing that an
acquittal on the aggravated sexual assault charge or
adverse rulings in pretrial motions would impact
adversely the interests of the victim and members of the
victim’s immediate family.
[JLA Guidelines at 2-3.]
The Attorney General mandated that prosecutors consider the
enumerated factors when they determine “the amount of the reduction in the
15
stipulated 25-year term of parole ineligibility.” Id. at 3.5 That determination
“is vested in the reasoned discretion of the prosecutor and latitude therefore is
afforded to reduce the stipulated sentence based upon variable factors
considering the interests of the victim.” Ibid.
In accordance with N.J.S.A. 52:4B-36, which identifies the rights of
crime victims in the criminal justice system, the JLA Guidelines require the
prosecutor to consult with the victim’s parents or legal guardians before
offering a defendant a plea agreement that reduces N.J.S.A. 2C:14-2(a)’s
twenty-five-year period of parole ineligibility. JLA Guidelines at 4. Should
the victim’s parents or legal guardians object to such a plea offer, the
Guidelines bar the prosecutor from making that offer “unless the County
Prosecutor, or [the] Director of the Division of Criminal Justice in cases
prosecuted by the Division, determines in writing that the plea offer is
5
To ensure “the greatest possible incentive” for a defendant to plead guilty
early in the proceeding, the Guidelines generally authorize prosecutors to offer
a plea agreement providing for the shortest period of parole ineligibility --
fifteen years -- “only if the defendant agrees to plead guilty before
indictment.” JLA Guidelines at 3. After indictment, a prosecutor may not
offer a plea agreement providing for a term of parole ineligibility less than
eighteen years, unless the county prosecutor, or the Director of the Division of
Criminal Justice in cases prosecuted by the Division, “determines in writing
that there has been a material change in circumstances that, considering the
factors [enumerated in the JLA Guidelines], justifies a post-indictment plea
offer that provides for a term of parole ineligibility between 15 and 18 ye ars.”
Ibid.
16
appropriate and in the best interests of the victim notwithstanding the
objection.” Ibid. The prosecutor must inform the court of any such objection.
Ibid.
The JLA and the Attorney General’s JLA Guidelines recognize the
court’s discretion to accept or reject a plea agreement entered into by the
defendant and the State. See N.J.S.A. 2C:14-2(d) (providing that the court
“may” accept the negotiated plea agreement); JLA Guidelines at 1 (“If the
court accepts the negotiated disposition, . . . .” (emphasis added)). The JLA
Guidelines, however, do not require the prosecutor to provide to the court a
statement of reasons justifying the proposed reduction of the twenty-five-year
term of incarceration and period of parole ineligibility imposed by N.J.S.A.
2C:14-2(a). See N.J.S.A. 2C:14-2(a), (d); JLA Guidelines. Accordingly, no
statutory provision or Guideline ensures that the court is informed of the
prosecutor’s reasoning when it determines whether to accept or reject a plea
agreement offered pursuant to N.J.S.A. 2C:14-2(a).
IV.
A.
Against that backdrop, we consider defendant’s separation of powers
challenge to the JLA.
17
Defendant “must sustain a heavy burden in order to succeed in [his]
assertion of the invalidity of the challenged legislation.” State v. Trump
Hotels & Casino Resorts, 160 N.J. 505, 526 (1999). “We will give, as we
must, deference to any legislative enactment unless it is unmistakably shown
to run afoul of the Constitution.” Lewis v. Harris, 188 N.J. 415, 459 (2006).
The foundation for the presumption of constitutionality that attaches to every
statute
is solid and clear: the challenged law “represents the
considered action of a body composed of popularly
elected representatives,” and, as Justice Oliver Wendell
Holmes admonished, “it must be remembered that
legislatures are ultimate guardians of the liberties and
welfare of the people in quite as great a degree as the
courts.”
[State v. Buckner, 223 N.J. 1, 14 (2015) (quoting N.J.
Sports & Exposition Auth. v. McCrane, 61 N.J. 1, 8-9
(1972)).]
When we conduct appellate review in a constitutional challenge to a
statute, “we owe no deference to either the trial court’s or Appellate Division’s
conclusions of law.” State v. Pomianek, 221 N.J. 66, 80 (2015); see also
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378
(1995). “Our review is therefore de novo.” Pomianek, 221 N.J. at 80.
18
B.
1.
The New Jersey Constitution prescribes the separation of powers among
the three branches of government:
The powers of the government shall be divided among
three distinct branches, the legislative, executive, and
judicial. No person or persons belonging to or
constituting one branch shall exercise any of the powers
properly belonging to either of the others, except as
expressly provided in this Constitution.
[N.J. Const. art. III, ¶ 1.]
New Jersey’s constitutional provision for separation of powers “was
designed to ‘maintain the balance between the three branches of government,
preserve their respective independence and integrity, and prevent the
concentration of unchecked power in the hands of any one branch.’”
Commc’ns Workers of Am., AFL-CIO v. Florio, 130 N.J. 439, 449 (1992)
(quoting David v. Vesta Co., 45 N.J. 301, 326 (1965)). Nonetheless, as the
Court has explained, “the doctrine requires not an absolute division of power
but a cooperative accommodation among the three branches of government.”
Ibid.; see also In re P.L. 2001, Chapter 362, 186 N.J. 368, 379 (2006) (holding
that the separation of powers doctrine exists “not to create three ‘watertight’
governmental compartments, stifling cooperative action among the executive,
legislative and judicial branches,” but “to guarantee a system in which one
19
branch cannot ‘claim[] or receiv[e] an inordinate power’” (alterations in
original) (quoting Commc’ns Workers, 130 N.J. at 450)); Brown v. Heymann,
62 N.J. 1, 11 (1972) (“[T]he doctrine necessarily assumes the branches will
coordinate to the end that government will fulfill its mission.”).
2.
The separation of powers question considered in this appeal arises in the
context of criminal sentencing, a function that “does not fit neatly within a
single branch of government.” Lagares, 127 N.J. at 27.
The Legislature is constitutionally empowered to “define[] crimes and
establish[] the appropriate punishment for their commission,” and that
authority “includes the ability to enact mandatory-sentencing statutes that
eliminate any opportunity for a lesser punishment.” Ibid.; see also State v.
Cannon, 128 N.J. 546, 563 (1992) (noting that the Legislature is empowered to
“mandate imprisonment for certain crimes, leaving no judicial discretion”).
The sentencing prerogatives of the prosecutor, a member of the
executive branch, include “determin[ing] the extent of a defendant’s
sentencing exposure when deciding what charges will be brought.” Lagares,
127 N.J. at 27; see also State v. Moorer, 448 N.J. Super. 94, 104 (App. Div.
2016) (“[T]he selection of the charge rests in the sound discretion of the
20
prosecutor.” (quoting State v. D.V., 348 N.J. Super. 107, 115-16 (App. Div.
2002), aff’d o.b., 176 N.J. 338 (2003))).
Notwithstanding the important roles of the coordinate branches in
sentencing, however, the determination of “[a] criminal sentence is always and
solely committed to the discretion of the trial court to be exercised within the
standards prescribed by the Code of Criminal Justice.” State v. Hess, 207 N.J.
123, 151 (2011) (quoting State v. Warren, 115 N.J. 433, 447 (1989)); see also
Lagares, 127 N.J. at 27-28.
In Lagares, this Court considered a defendant’s separation of powers
challenge to a statute that delegated sentencing discretion to prosecutors in
certain drug cases. 127 N.J. at 24. Because the defendant had previously been
convicted of predicate drug offenses, he was eligible to be sentenced for
subsequent drug convictions to an extended term of incarceration under
N.J.S.A. 2C:43-6(f). Ibid. That statute mandated the imposition of an
extended term “upon application of the prosecuting attorney . . .
notwithstanding that extended terms are ordinarily discretionary with the
court.” Ibid. (emphasis removed) (quoting N.J.S.A. 2C:43-6(f)).
The Court agreed with the defendant in Lagares that, in the absence of
guidelines or “any avenue for effective judicial review,” N.J.S.A. 2C:43-6(f)
would be unconstitutional. Id. at 31. It explained:
21
Where the Legislature has permitted the executive to
select defendants for enhanced punishment or favorable
treatment, this Court has generally required that
decision-making be carried out in a fashion that limits
potential arbitrariness. In addition, we have required
that the judiciary retain the power to review
prosecutorial decisions to avoid abuses of discretion.
[Id. at 28.]
Noting its obligation “to so construe the statute as to render it
constitutional if it is reasonably susceptible to such interpretation,” the Court
imposed three requirements. Id. at 32 (quoting State v. Profaci, 56 N.J. 346,
350 (1970)). First, the Court interpreted N.J.S.A. 2C:43-6(f) “to require that
guidelines be adopted to assist prosecutorial decision-making with respect to
applications for enhanced sentences” pursuant to the statute. Ibid.6 Second,
“to permit effective review of prosecutorial sentencing decisions,” the Court
required prosecutors to “state on the trial court record the reasons for seeking
an extended sentence.” Ibid. Finally, the Court concluded that the Legislature
had not intended “to circumvent the judiciary’s power to protect defendants
from arbitrary application of enhanced sentences” and thus confirmed that “an
6
The Court noted that the guidelines “should reflect the legislative intent [in
N.J.S.A. 2C:43-6(f)] to make extended sentencing of repeat drug offenders the
norm rather than the exception,” but cautioned prosecutors that “the
Legislature did not mandate extended sentences, recognizing that in certain
circumstances enhanced punishment may be unwarranted.” Id. at 32.
22
extended term may be denied or vacated” upon a showing that the prosecutor’s
decision to seek that sentence was arbitrary and capricious. Id. at 33.
Following Lagares, the Attorney General issued to the Director of the
Division of Criminal Justice and all county prosecutors the Directive
Implementing Guidelines for Determining Whether to Apply for an Extended
Term Pursuant to N.J.S.A. 2C:43-6(f) (Apr. 20, 1992), https://
dspace.njstatelib.org/xmlui/bitstream/handle/10929/33900/
njkfn2383.2a35a21992.pdf?sequence=1&isAllowed=y. Those Guidelines
“govern[ed] the exercise of prosecutorial discretion under N.J.S.A. 2C:43 -
6(f).” Brimage, 153 N.J. at 13 n.1.
In contrast to Lagares, in which the defendant’s sentence followed his
conviction at trial, the Court’s decision in Vasquez addressed prosecutorial
discretion in plea bargaining pursuant to Rule 3:9-3, and is thus directly
relevant to this appeal.
Our case law and the governing court rule assign distinct roles to the
prosecutor and the court in plea bargaining. When a prosecutor and defense
counsel consider a plea agreement, they “engage in discussions about [pleas
and sentences] as will promote a fair and expeditious disposition of the case.”
R. 3:9-3. “The prosecutor’s function in this connection is strictly limited to an
agreement to recommend a form of leniency, to which recommendation the
23
court in its discretion after being made aware of the full situation would give
due consideration.” Warren, 115 N.J. at 448 (emphasis removed) (quoting
State v. Taylor, 49 N.J. 440, 455 (1967)). With limited exceptions enumerated
in the court rule, “the judge shall take no part in such discussions.” R. 3:9-3;
see Warren, 115 N.J. at 448 (“Strict limitations on judicial participation in plea
negotiations relate to the concern that judicial neutrality and objectivity must
be preserved.”); State v. Williams, 277 N.J. Super. 40, 48 (App. Div. 1994)
(“[A] judge may not participate in plea negotiations . . . especially over the
objection of the prosecutor.”).
The judge, however, retains the exclusive authority to sentence the
defendant; “[e]ven when the State and a defendant have entered into a plea
agreement, a court in discharging its sentencing duties may not simply accept
the arrangement without reviewing its factual support and the circumstances
surrounding its formation.” Lagares, 127 N.J. at 28.
In Vasquez, the Court considered the separation of powers implications
of plea bargaining under N.J.S.A. 2C:35-12, a provision of the Comprehensive
Drug Reform Act (CDRA), N.J.S.A. 2C:35-1 to 36A-1, that substantially
expanded prosecutorial discretion in drug prosecution plea agreements. 129
N.J. at 197-209. N.J.S.A. 2C:35-12 authorized the prosecutor to waive the
statutory period of parole ineligibility as part of a negotiated plea agreement or
24
post-conviction agreement and barred the sentencing court from imposing “a
lesser term of imprisonment[] [or a lesser] period of parole ineligibility . . .
than that expressly provided for under the terms of the plea or post-conviction
agreement.” Id. at 198 (quoting N.J.S.A. 2C:35-12).
The appeal in Vasquez arose from a plea agreement in which the
prosecutor waived the three-year period of parole ineligibility mandated by
N.J.S.A. 2C:35-7 for certain drug offenses committed in a school zone, with
the stipulation that if the defendant violated probation and appeared before the
court to be sentenced for that offense, the State would not waive the mandatory
sentencing provisions of the statute. Id. at 192. The defendant violated his
probation and was sentenced to a four-year custodial term with three years’
parole ineligibility. Id. at 193. The Appellate Division vacated the sentence,
and the Court granted the State’s petition for certification. Ibid.The defendant argued before this Court that the Legislature’s grant of
prosecutorial discretion in N.J.S.A. 2C:35-12 contravened separation of
powers principles. Id. at 195. The Court viewed the separation of powers
issue in Vasquez to be “similar to that resolved in Lagares,” and concluded
that “the same interpretation is appropriate.” Id. at 196. It construed N.J.S.A.
2C:35-12 to preserve judicial authority to reject a plea bargain or post-
conviction agreement that waived, or did not waive, the statutory parole
25
disqualifier in the event that the prosecutor’s discretion was exercised in an
arbitrary or capricious manner:
Judicial oversight is mandated to protect against
arbitrary and capricious prosecutorial decisions. To
that end, the prosecutor should state on the record the
reasons for the decision to waive or the refusal to waive
the parole disqualifier. A defendant who shows clearly
and convincingly that the exercise of discretion was
arbitrary and capricious would be entitled to relief.
Those standards prevent the legislative goal of
uniformity in sentencing from being undermined by
unreviewable prosecutorial discretion.
So interpreted, the statute does not violate the
doctrine of separation of powers, and we reject
defendant’s contrary contention.
[Id. at 196-97 (citations omitted).]
In the wake of Vasquez, the Attorney General issued plea-bargaining
Guidelines for the drug offense sentencing statutes that the Court considered in
that decision. Brimage, 153 N.J. at 13. In Brimage, the Court held that the
Guidelines issued in response to Vasquez fell short of the mark. Id. at 14-15.
It ruled that although the Attorney General expressly sought “to ensure a
uniform, consistent and predictable sentence for a given offense,” id. at 13(emphasis removed), the Guidelines improperly “direct[ed] each county
prosecutor’s office to adopt and implement its own written policy governing
plea and post-conviction agreements, using the Guidelines as a model,” and
authorized county-specific “standardized plea offers for typical cases and
26
offenders,” id. at 14-15. To the Court, a 1997 Supplemental Directive from
the Attorney General to the county prosecutors similarly “fail[ed] to limit the
discretion authorized” by the prior Guidelines and “thus maintain[ed] the
resulting intercounty disparity.” Id. at 16. In the Court’s view,
[t]he intercounty disparity authorized by the Attorney
General’s Guidelines, both before and after their
amendment, violates the goals of uniformity in
sentencing and, thus, not only fails on statutory
grounds, but also threatens the balance between
prosecutorial and judicial discretion that is required
under Vasquez, 129 N.J. 189. The Guidelines fail to
appropriately channel prosecutorial discretion, thus
leading to arbitrary and unreviewable differences
between different localities.
[Id. at 22-23.]
To correct that sentencing disparity, the Court ordered in Brimage that
the Attorney General promulgate “new plea offer guidelines, which all
counties must follow.” Id. at 24-25. It directed that the revised guidelines
“specify permissible ranges of plea offers for particular crimes” and that they
be “more explicit regarding permissible bases for upward and downward
departures.” Id. at 25. “[T]o permit effective judicial review,” the Court
required that prosecutors “state on the record their reasons for choosing to
waive or not to waive the mandatory minimum period of parole ineligibility
specified in the statute,” and their reasons for any departure from the
guidelines. Ibid.
27
Following the Court’s decision in Brimage, the Attorney General issued
uniform Guidelines -- now known as the “Brimage Guidelines” -- for
prosecutors negotiating plea agreements and post-conviction agreements under
N.J.S.A. 2C:35-12. See Revised Attorney General Guidelines for Negotiating
Cases under N.J.S.A. 2C:35-12 (July 15, 2004), https://www.state.nj.us/lps/
dcj/agguide/directives/brimage_all.pdf. In the Brimage Guidelines, the
Attorney General provided detailed instructions to prosecutors regarding the
exercise of their discretion in tendering plea offers under N.J.S.A. 2C:35 -12
that waive or reduce otherwise mandatory terms of imprisonment and parole
ineligibility for certain drug offenses.
C.
We derive three core principles from the Court’s resolution of separation
of powers challenges to statutes granting sentencing discretion to prosecutors
in Lagares, Vasquez, and Brimage.
First, the Attorney General must promulgate uniform statewide
guidelines designed to channel that discretion and minimize sentencing
disparity between counties, taking into account the legislative objective in the
sentencing statute. Brimage, 153 N.J. at 23; Vasquez, 129 N.J. at 195;
Lagares, 127 N.J. at 31-32.
28
Second, in order to facilitate effective judicial review, the prosecutor
must provide a written statement of reasons for his or her exercise of
prosecutorial discretion. Brimage, 153 N.J. at 25; Vasquez, 129 N.J. at 196;
Lagares, 127 N.J. at 32.
Third, the sentencing court maintains oversight to ensure that
prosecutorial discretion is not exercised in an arbitrary and capricious manner.
Vasquez, 129 N.J. at 195-96; Lagares, 127 N.J. at 33.
Those three procedural safeguards allow for effective judicial review of
the prosecutor’s exercise of discretion granted by the Legislature, thus
satisfying separation of powers principles. As we recently noted in the context
of prosecutorial decisions whether to waive mandatory minimum sentences
pursuant to the Graves Act, N.J.S.A. 2C:43-6.2, courts are in a position to
conduct meaningful judicial review where “prosecutors are guided by
standards, inform defendants of the basis for their decisions, and are subject to
judicial oversight.” State v. Benjamin, 228 N.J. 358, 373 (2017).
D.
The JLA Guidelines that govern plea bargaining pursuant to N.J.S.A.
2C:14-2(d) satisfy Lagares, Vasquez, and Brimage, with one necessary
addition: a requirement that prosecutors provide a statement of reasons for a
29
decision to offer a plea bargain in which the term of incarceration or period of
parole ineligibility is less than that prescribed in N.J.S.A. 2C:14-2(a).
The Guidelines properly apply to all county prosecutors and to the
Division of Criminal Justice when it handles a JLA case; they do not authorize
prosecutors’ offices to develop county-specific standards and procedures, as
did the Guidelines rejected in Brimage, 153 N.J. at 13-16.7 They provide clear
and practical guidance for prosecutors charged with making plea-bargaining
determinations in accordance with N.J.S.A. 2C:14-2(a). Moreover, the victim-
centered factors identified in section 1 of the JLA Guidelines reflect the
Legislature’s focus on “the interests of the victim” in N.J.S.A. 2C:14-2(d).
They are consonant with legislative intent.
The JLA Guidelines should be amended to instruct prosecutors to
provide the sentencing court with a statement of reasons for a decision to offer
a defendant, in a plea agreement, a term of incarceration or a term of parole
7
At oral argument, counsel for defendant expressed concern about the
uniform application of the JLA throughout the State. We decline to address
defendant’s uniformity argument, which was not asserted before the sentencing
court or the Appellate Division, and is not supported by an adequate record.
We also recognize the difficulty of comparing results across vicinages becaus e
the amount of the sentence reduction in a given case depends heavily on the
victim’s situation and interests. That said, the Attorney General is free to
review and enhance section 2 of the JLA Guidelines (“Amount of Reduction”)
to further channel the discretion of prosecutors across the State and avoid
disparate results.
30
ineligibility between fifteen and twenty-five years. Such a statement is
essential to effective judicial review for the arbitrary and capricious exercise
of prosecutorial discretion under N.J.S.A. 2C:14-2(d).
We recognize that in the JLA setting, the statement of reasons may
implicate mental and physical health records and other confidential
information regarding the victim and members of the victim’s immediate
family. See JLA Guidelines § 1 (a)-(f) (identifying factors that may relate to
the mental and physical health of the victim or members of his or her
immediate family). In the statement of reasons, the prosecutor ordinarily need
not disclose confidential, sensitive information about the victim or members of
his or her immediate family including, for example, information relating to
mental or physical health; a general representation as to the potential impact of
a trial should provide the court with an adequate basis for judicial review. In
the event that a prosecutor concludes that it is necessary in a given case to
reveal such confidential information in a statement of reasons, the court should
hold an in camera hearing to consider that information. See Pressler &
Verniero, Current N.J. Court Rules, cmts. 2.1.3 and 2.2 on R. 1:2-1 (2019).
In this case, the prosecutor did not provide the sentencing court with a
statement of reasons for his decision to offer defendant a twenty-year term of
incarceration with a twenty-year period of parole ineligibility. On remand, the
31
prosecutor should provide such a statement of reasons to the sentencing court.
The court should review whether the prosecutor’s exercise of discretion was
arbitrary and capricious. If the sentencing court finds that the prosecutor’s
action was arbitrary and capricious, it should vacate its order denying
defendant’s motion to modify his sentence; the court should then permit
defendant to withdraw his guilty plea as to first-degree aggravated sexual
assault or renegotiate his plea agreement. If the sentencing court does not find
the prosecutor’s action to be arbitrary and capricious, it should resentence
defendant as directed by the Appellate Division’s decision, which we leave
undisturbed aside from the single issue as to which we granted certification.
See A.T.C., 454 N.J. Super. at 259; accord supra note 3.
V.
We hold that the JLA does not violate the separation of powers doctrine,
provided that the State presents a statement of reasons explaining its decision
to depart from the twenty-five year mandatory minimum sentence specified in
N.J.S.A. 2C:14-2(a), and the court reviews the prosecutor’s exercise of
discretion to determine whether it was arbitrary and capricious. So that the
standard we adopt today may be applied in this matter, we remand to the
sentencing court for further proceedings in accordance with this opinion.
32
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE
PATTERSON’S opinion.
33