State v. Bridges , 131 N.J. 402 ( 1993 )

HANDLER, J.,

dissenting.

This case deals with the unique sentencing scheme applicable to school-zone drug offenses under N.J.S.A. 2C:35-12. The Court holds today that a county-jail sentence imposed pursuant to a negotiated plea as a condition of probation is not to be treated as a probationary sentence. Rather, it holds that such a probationary jail sentence is simply a “term of imprisonment.” As a result, although a sentencing court retains discretion under section 12 to modify a probationary sentence, it has no discretion to reduce the term of the county-jail sentence notwithstanding its imposition as a probationary condition. That result, I submit, is anomalous and not demanded by a sensible and unconstrained reading of the statute.

Section 12 anticipates the imposition of mandatory prison sentences with minimum terms of parole ineligibility for certain school-zone drug offenses. It provides that when such a mandatory sentence of imprisonment is specified, the court must impose that sentence “unless the defendant has pleaded guilty pursuant to a negotiated agreement.” N.J.S.A. 2C:35-12. The statute also specifically provides:

The negotiated piea or post-conviction agreement may provide for a specified term of imprisonment within the range of ordinary or extended sentences authorized by law, a specified period of parole ineligibility, a specified fine, or other disposition. In that event, the court at sentencing shall not impose a lesser term of imprisonment, period of parole ineligibility or fine than that expressly provided for under the terms of the plea or post-conviction agreement. [Ibid]

Thus, section 12 permits four possible sentencing alternatives as part of a negotiated plea. Those are “a specified term of imprisonment within the range of ordinary or extended sentences authorized by law, a specified period of parole ineligibility, a specified fine, or other disposition.” Ibid. A so-called split sentence — that is, a county-jail term imposed as a condition of probation — cannot be categorized as any of the first three sentencing alternatives. It is not “a specified term of imprisonment within the range of ordinary or extended sentences”; it does not constitute a “period of parole ineligibility”; nor is it a “fine.” It therefore is a sentence that falls within the catchall category, namely, “other disposition.”

The Court in its opinion agrees with the conclusion that a probationary county-jail term is not an “ordinary” term of imprisonment. Ante at 406, 621 A.2d at 3. The statute’s initial and basic reference to the phrase “term of imprisonment” includes the qualification that it be “within the range of ordinary or extended sentences authorized by law.” The Code meticulously prescribes the ranges of prison terms for particular offenses. E.g., N.J.S.A. 2C:43-6a(1) (range of term for first-degree crimes is ten to twenty years); N.J.S.A. 2C:43-6a(2) (range of term for second-degree crimes is five to ten years). Such terms, which involve more than one year in custody, must be served in state prison. N.J.S.A. 2C:43-10. A straight county-jail term — that is, one not split with a probationary sentence — would also constitute a term “within the range of ordinary ... sentences authorized by law.” E.g., N.J.S.A. 2C:43-2b(3); see State v. Hartye, 105 N.J. 411, 522 A.2d 418 (1987); State v. Kreidler, 211 N.J.Super. 276, 511 A.2d 733 (App.Div.1986).

The prohibition of section 12 that restrains a court from sentencing a defendant to “a lesser term of imprisonment, period of parole ineligibility or fine” than that provided for by the negotiated plea agreement thus would not appear to apply to a probationary county-jail term. The prohibition repeats only the first three of the four plea bargain sentencing alternatives contemplated by section 12. The repetition of the phrase “term of imprisonment” in the prohibition against the modification of negotiated sentences would as a matter of linguistic similarity, proximity, syntax, and structure indicate that it is the same term of imprisonment referred to in the preceding section, which would authorize the plea negotiation of a state prison term or a straight non-probationary county-jail term. The proximity of these two lists of sentencing alternatives — one authorizing the plea negotiation of particular sentences, the other prohibiting changes with respect to all of those negotiated sentences except one — strongly, if not inescapably, implies that the exception was not an oversight. That exception, as noted, refers to sentences that constitute “other dispositions.” Thus, the inference to be drawn from the statutory text is that the Legislature deliberately permitted a sentence that is an “other disposition” to be modified. Because a probationary sentence with a county-jail sentence imposed as a probationary term is an “other disposition,” the Legislature clearly intended to permit the judicial modification of such a sentence when it has been recommended by the prosecutor as part of the plea bargain.

In rejecting the common sense and logic of the statutory interpretation that recognizes a modicum of judicial discretion with respect to split-county jail terms, the Court follows a convoluted epistemological course. Although it acknowledges that the “term of imprisonment” that is authorized as a negotiated sentence under section 12 is qualified to mean only a state prison or straight county-jail term, the court disregards that express qualification when it assigns a meaning to “term of imprisonment” when next used four lines later in the statute. It thus discounts the parallel structure of the two provisions of section 12 and the obvious common meaning to be ascribed to the common phrase “term of imprisonment,” used in both statutory passages.

The Court’s understanding of “term of imprisonment” as used in the second part of section 12 would equate with a sentence that puts a defendant behind bars. Our penal laws have never adopted so broad and simplistic an understanding of what is meant by “term of imprisonment.” In State v. O'Connor, 105 N.J. 399, 522 A.2d 423 (1987), and Hartye, supra, 105 N.J. at 411, 522 A.2d 418, the Court repeatedly and painstakingly explained the differences between a “sentence of imprisonment” and “imprisonment for a term as a condition of probation.” A term of incarceration as a condition of probation must be served in a county jail, whereas a sentence of imprisonment is usually served in a state prison. See Hartye, supra, 105 N.J. at 419, 522 A.2d 418; O’Connor, supra, 105 N.J. at 409, 522 A.2d 423. Probationary incarceration must be no more than 364 days. N.J.S.A. 2C:43-2b(2); see O’Connor, supra, 105 N.J. at 409, 522 A.2d 423. A defendant sentenced to probationary incarceration may not be exposed to the parole-ineligibility term authorized by N.J.S.A. 2C:43-6b. See Hartye, supra, 105 N.J. at 419, 522 A.2d 418. Unlike a state prison term, the custodial element of a probationary sentence may begin at any time' during the probationary period and may be reduced any time before the probationary period has expired. Ibid.

Perhaps one of the most significant differences between a term of imprisonment and probationary incarceration is the nature of the correctional facility to which the defendant is sentenced: a county jail for the probationer and a state prison for the defendant sentenced under N.J.S.A. 2C:43-2b(3). In a pre-Code case, Bonilla v. Heil, 126 N.J.Super. 538, 315 A.2d 720 (App.Div.1974), the court held that denial of parole eligibility to an inmate of a county penitentiary, while extending parole to those confined in a state prison, did not deprive the county jail inmate of equal protection. The court found that there were valid reasons to provide later parole eligibility to a county inmate than to a state prison inmate with a longer term, among them the substantial advantages of serving a sentence • in ,a county jail. For instance, most county inmates serve their sentence in a jail near their former residence, whereas state prisoners may be incarcerated far from home. Id. at 551, 315 A.2d 720. County inmates may qualify for a work-release , program that would allow them to hold on to their job. while serving their sentence. Ibid. Under N.J.S.A. 30:4-123.12 (repealed by A. 1979, c. 441), a sentence to a county jail, did not constitute a prior offense, and thus if a defendant was . later sentenced to a state prison, he or she could still qualify for parole release as a first offender. Ibid. Finally, and .perhaps most important, a county-jail sentence does not bear the stigma of a state-prison sentence. Ibid.

The Code has carried forward this-philosophy of-treating county-jail terms and state-prison terms- distinctively. For example, county-jail inmates as a distinct, class from state-prison inmates are accorded different periods of parole ineligibility. N.J.S.A. 30:4-123.51a. See State v. Rosado, 131 N.J. 423, 621 A.2d 12 (1993).

Our courts have consistently acknowledged the distinction between probationers serving a county-jail sentence and state prisoners and have read that distinction into the sentencing provisions of the Code. In Kreidler, supra, 211 N.J.Super. at 276, 511 A.2d 733, the court held that the N.J.S.A. 2C:44-ld presumption of imprisonment for persons convicted of first- and second-degree crimes refers to “straight sentences of imprisonment authorized by N.J.S.A. 2C:43-2(b)(3) and not to split sentences of imprisonment to be served as a condition of probation authorized by N.J.S.A. 2C:43-2(b)(2).” Id. at 279, 511 A.2d 733. See also O’Connor, supra, 105 N.J. at 414, 522 A.2d 423 (a split sentence cannot be imposed on a defendant who pleads guilty to an offense that carries a presumption of imprisonment). In Hartye, we “reject[ed] defendant’s contention that the term of imprisonment in N.J.S.A. 2C:44-1e means any imprisonment, and that the presumption against incarceration therefore bars imposition of a split sentence.” 105 N.J. at 419-20, 522 A.2d 418.

In enacting the sentencing provisions of the Code, the Legislature did not reject or abandon the longstanding distinction between county-jail sentences and state-prison terms. Further, it enacted section 12 after we had decided O’Connor and Hartye, which recognized and discussed at length the importance of those distinctions and especially the distinctiveness of a split county-jail sentence. We must assume that the Legislature was aware that a probationary county-jail term was not understood to mean a term of imprisonment as such. We must assume as well that it was conversant with the legal traditions and consistent penal practices that have uniformly recognized the significance of the distinction between a state-prison term and a county-jail term that is imposed as a condition of probation.

The Court’s extremely strained interpretation of “term of imprisonment” to include a probationary county-jail sentence would appear to be unprecedented and idiosyncratic. It claims support for its interpretation in the legislative history of section 12 and the Drug Reform Act. The Court says that the Legislature’s intent was “ ‘to limit courts’ sentencing discretion, and [to] ensure more uniform, consistent, and predictable sentencing practices.’ ” Ante at 408, 621 A.2d at 4 (citing Assembly Judiciary Committee Statement No. A.3270 at 1 (Dec. 18, 1986). However, to encourage uniformity, consistency, and predictability does not require that judges may not exercise discretion with respect to probationary terms. Nor does it justify the leap from an intent to limit judicial sentencing discretion to the absolute denial of such discretion with respect to those county-jail terms that are a functional part of a probationary sentence. As the Court stated in Hartye, “the Code’s sentencing framework replaces ‘the unfettered discretion of prior law with a structured discretion designed to foster less arbitrary and more equal sentences.’ ” 105 N.J. at 418, 522 A.2d 418 (quoting State v. Roth, 95 N.J. 334, 345, 471 A.2d 370 (1986)). The allowance of judicial discretion over probationary sentences hardly destroys the “structured discretion” that serves generally to produce uniform and fair sentences. The Legislature itself acknowledges that the commendable goal of uniformity in sentencing, which may, for example, be furthered by delegating some sentencing responsibility to county prosecutors, should not be accomplished by removing all sentencing authority from judges. See, e.g., State v. Shaw, 131 N.J. 1, 618 A.2d 294 (1992) (recognizing that Code contemplates a “shared exercise of sentencing power” by court and prosecutor with respect to sentencing for certain drug offenses); State v. Santiago, 131 N.J. 1, 618 A.2d 294 (1992) (same); State v. Peters, 129 N.J. 210, 609 A.2d 40 (1992) (same); State v. Vasquez, 129 N.J. 189, 609 A.2d 29 (1992) (same); State v. Legares, 127 N.J. 20, 601 A.2d 698 (1992) (recognizing shared responsibility over extended-term sentencing).

Moreover, the Court does not acknowledge the equally important legislative goal of facilitating the “rehabilitation of drug dependent persons,” mentioned in the Reform Drug Act’s “Declaration of Policy and Legislative Findings,” N.J.S.A. 2C:35-1.1. Rehabilitation, a goal to which probation is especially well suited, reflects a more flexible approach toward sentencing than the Court is willing to impute to, the Legislature. As a ■ result, the Court remains oblivious to. the fact that a split sentence, a county-jail term imposed as a condition of probation, is in the larger framework of corrections to be viewed as a probationary sentence designed to further the ends of rehabilitation.

Within that framework, the role of judicial sentencing discretion acquires greater importance. Trial courts have traditionally exercised broad discretion when sentencing defendants to a probationary term. Probation encompasses numerous standards and special conditions such as jail, fines, restitution, community service, alcohol and drug treatment, child-support payments, and Drug Enforcement and Demand Reduction penalties. A court may mold a probationary sentence to suit the nature of the crime committed, the defendant’s particular history, and the goals to be attained. For instance, if the goal of probation is rehabilitation, the court may impose such conditions as counseling and treatment. If the goal includes an element of punishment, the conditions may be a county-jail term and a fine. ' Other conditions may serve reparative and utilitarian goals. See Administrative Office of the Courts, A Model for Enhancing Probation Supervision: Purpose, Priorities, Practices 6 (1992).

Through imposing conditions of probation and monitoring the probationer’s compliance with those conditions, “[t]he court plays a significant role in determining the work of probation.” Id. at 43. The. court’s continuing jurisdiction over the probationer underscores the importance of judicial discretion at the initial stage, when the court determines and imposes the conditions of probation.

Only judges can add, modify, or delete conditions of probation; only judges can ' extend the probation term or terminate supervision early; and only judges can revoke probation and -impose another sentence on a probationer who fails to comply with the original order. [Ibid.]

Those considerations surely bear on the nature and extent of the discretion reserved to judges with respect to the modification of a probationary sentence encompassed in a negotiated sentence for specified drug offenses.

The Attorney General has also recognized (at least partially) the distinction between a state-prison term and a probationary county-jail term:

A “term of incarceration” for the purpose of this Directive means a state prison term and shall not include a county jail term imposed as a condition of probation in accordance with N.J.S.A. 2C:44-lc, ...

Robert Del Tufo, Directive Implementing Guidelines Governing Plea-Bargaining and Discretionary Decisions in Drug Prosecutions Involving Mandatory Terms 5 (September 15, 1992). However, the Attorney General apparently believes that the Legislature intended to abandon that distinction with respect to a plea bargain involving school-zone drug offenses. Thus, while he acknowledges that a probationary county-jail term is not to be equated with a state-prison term, ibid., he recognizes this qualification: “except in a case of a defendant who pleads guilty to a violation of the third degree crime defined in N.J.S.A. 2C:35-7 (drug free school zone offense).” Ibid. However, the fundamental distinction between a state-prison term and a probationary county-jail term that is recognized by the Attorney General in the Guidelines, in my opinion, is totally inconsistent with the conclusion that under section 12 there is no distinction between a probationary county-jail term and a state-prison term and, because under no circumstances can the latter term be modified by a sentencing court, the former can never be modified.

The Court overreaches when it claims to find support for its position in the legislative history of section 12. The Legislature’s goal of uniformity in sentencing is in no way disserved by allowing a court to retain some discretion in an area especially well suited to judicial supervision. Nor are the fearful consequences that the Court posits likely to come to pass if trial courts retain discretion over probationary sentences that in-elude county-jail terms. One can hardly imagine that our state’s trial courts are poised to begin sentencing convicted drug offenders to nominal jail terms. They did not do so before today’s decision, and would not do so tomorrow if given the opportunity.

In sum, section 12 simply cannot be construed to equate probationary county-jail terms with state-prison terms to prohibit the exercise of judicial discretion when sentencing a defendant to a probationary term. Nor can such a rendition of section 12 be fairly drawn from the history of its enactment or the objectives of public policy it seeks to effectuate.

The Court by its opinion shifts the delicate balance in the shared exercise of sentencing authority from courts over to prosecutors. I can only wonder why the Court has strained to extend prosecutorial discretion at the expense of judicial discretion when section 12 does not demand it.

For affirmance — Chief Justice WILENTZ, and Justices CLIFFORD, POLLOCK, O’HERN, GARIBALDI and STEIN— 6.

For reversal — Justice HANDLER — 1.