State of New Jersey v. Mwanza Fitzpatrick ( 2015 )


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  •                    NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NOS. A-2477-14T3
    A-2478-14T3
    STATE OF NEW JERSEY,
    Plaintiff-Appellant,               APPROVED FOR PUBLICATION
    v.                                         December 28, 2015
    APPELLATE DIVISION
    MWANZA FITZPATRICK,
    Defendant-Respondent.
    __________________________
    STATE OF NEW JERSEY,
    Plaintiff-Appellant,
    v.
    KEEYAN BRISTER,
    Defendant-Respondent.
    __________________________
    Argued September 30, 2015 – Decided December 28, 2015
    Before Judges Fuentes, Koblitz and Gilson.
    On appeal from Superior Court of New Jersey,
    Law Division, Middlesex County, Indictment
    Nos. 14-02-00175 (A-2477-14) and 14-05-00620
    (A-2478-14).
    Christopher   Dize, Assistant         Prosecutor,
    argued the cause for appellant        (Andrew C.
    Carey,    Middlesex   County          Prosecutor,
    attorney; Mr. Dize, of counsel        and on the
    briefs).
    Stephen P. Hunter, Assistant Deputy Public
    Defender, argued the cause for respondents
    (Joseph   E.   Krakora,   Public   Defender,
    attorney; Mr. Hunter, of counsel and on the
    briefs).
    The opinion of the court was delivered by
    GILSON, J.S.C. (temporarily assigned).
    These appeals, consolidated for purposes of this opinion,
    present the jurisdictional question of what is the time within
    which   the    State   can      appeal   the     denial       of    a   drug    offender
    restraining order sought in connection with a sentence.                         We hold
    that the governing statute, N.J.S.A. 2C:35-5.7(k), requires such
    appeals to be filed within ten days of the date of sentencing.
    Our   holding    follows     from   a    reading        of    the   language     of    the
    statute, the legislative purpose in enacting the statute, and
    the relevant legislative history.                 Because the State failed to
    file its notices of appeal in these matters within the ten-day
    period, we dismiss both appeals for lack of jurisdiction.
    I.
    The   relevant    facts     and    procedural          histories    are    not    in
    dispute and are established by the record.                          Defendants Mwanza
    Fitzpatrick     and    Keeyan    Brister       were     separately       indicted      for
    separate    incidents      of    alleged       second    and    third     degree      drug
    offenses.       Both    defendants       applied        for    special    drug     court
    probation pursuant to N.J.S.A. 2C:35-14, were found clinically
    2                                    A-2477-14T3
    and legally eligible, and were recommended for acceptance into
    the program.          Both defendants then pled guilty to third degree
    distribution of heroin within 1000 feet of school property in
    violations of N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a)(1).
    As     part    of    the       plea    agreements,        the       State    agreed      to
    recommend that defendants be sentenced to five years of special
    drug court probation as an alternative sentence to five years in
    prison with thirty months of parole ineligibility.                               Because both
    defendants       were      subject       to    mandatory        extended         terms,     those
    alternative          sentences        were     in      accordance      with      the     Brimage
    Guidelines1 and N.J.S.A. 2C:43-6(f).
    At sentencing, the State for the first time informed the
    court and counsel that the State would request a drug offender
    restraining      order          (DORO)   in        accordance       with    N.J.S.A.       2C:35-
    5.7(h).       The State had not stated in the plea agreements that a
    DORO would be a condition of the sentences.                           Defendants objected
    and the judge adjourned sentencing and directed the State and
    defense     counsel        to    brief       the    issue.      Thereafter,         defendants
    moved    to    preclude         the    imposition        of   DOROs,       and     all    parties
    submitted briefs and certifications.
    On December 2, 2014, the trial court heard oral arguments
    and    denied    the       State's       application          for    DOROs       against     both
    1
    State v. Brimage, 
    153 N.J. 1
     (1998).
    3                                     A-2477-14T3
    defendants.       That same day, the trial court sentenced defendants
    to five years of special drug court probation as an alternative
    sentence to a prison term.          On December 9, 2014, the trial court
    entered two orders granting defendants' motions to preclude the
    imposition of DOROs.           On December 23, 2014, the State filed
    notices to appeal the denials of the DOROs.
    The State seeks to appeal the trial court's denial of the
    DOROs arguing that the trial court erred by using the wrong
    standard.     Defendants counter that the State filed its notices
    of appeal late and that this court lacks jurisdiction to hear
    either appeal.          Defendants also argue, in the alternative, that
    (1) the Drug Offender Restraining Order Act is unconstitutional,
    (2) the imposition of DOROs would violate the plea agreements,
    and (3) the trial court properly denied the applications for
    DOROs   using     the    correct   legal    standard.     Because     the   State
    failed to file its notices of appeal within the governing ten-
    day period, we dismiss both appeals for lack of jurisdiction,
    and we do not reach the substance of any party's arguments.
    II.
    To place the jurisdictional issue in context, we briefly
    describe    the    Drug     Offender   Restraining      Order   Act   of    1999,
    N.J.S.A. 2C:35-5.4 to -5.10 (the Act).              The Act is designed to
    enhance the quality of life and protect the public in areas
    4                               A-2477-14T3
    plagued by illegal drug activity.                  N.J.S.A. 2C:35-5.5(b).           It
    fulfills    its     purpose      by   restraining       drug     offenders        from
    returning to locations where they had engaged in illegal drug
    manufacturing      or    distribution        activities.         N.J.S.A.    2C:35-
    5.5(d).    Accordingly, the Act established procedures for issuing
    restraining orders against persons charged with or convicted of
    certain    drug-related        offenses.        N.J.S.A.       2C:35-5.6,      -5.7.
    Specifically,      the   Act     empowers    law    enforcement      officers     and
    prosecutors to apply for a restraining order at two different
    times: (1) when the person, including a juvenile, is charged
    with drug offenses, N.J.S.A. 2C:35-5.7(a)-(d), and (2) when a
    drug offender is convicted or adjudicated delinquent, N.J.S.A.
    2C:35-5.7(h).       The Act also spells out the grounds on which
    defendants can apply for an exception to such restraining orders
    and the basis for the court to grant such exceptions.                       N.J.S.A.
    2C:35-5.7(e).      In that regard, the Act provides that the "court
    may   forego   issuing     a     restraining    order    .   .   .   only    if    the
    defendant establishes" certain legitimate needs to be in the
    place from which the drug offender is sought to be restrained.
    
    Ibid.
          Those restriction exemptions are limited and must be
    established       "by    clear     and   convincing        evidence."          
    Ibid.
    Furthermore, the Act gives the court the discretion to craft
    5                                  A-2477-14T3
    "modifications to permit the person to enter the area during
    specified times for specified purposes."                    N.J.S.A. 2C:35-5.7(f).
    The Act also provides procedures for a defendant to modify
    a DORO, and for the State to appeal the denial of a DORO sought
    in connection with the sentencing of a drug offender.                          N.J.S.A.
    2C:35-5.7(k).
    III.
    The question of when the State can appeal the denial of a
    DORO sought in connection with the sentencing of a drug offender
    is an issue of first impression.                   The language authorizing such
    appeals is set forth in subsection k of N.J.S.A. 2C:35-5.7: "If
    the   court    does   not   issue       a    restraining      order,     the   sentence
    imposed   by    the   court   for       a    criminal       offense   as   defined       in
    subsection b. of this section shall not become final for ten
    days in order to permit the appeal of the court's findings by
    the prosecution."        A plain reading of this language limits the
    State's   right   to     appeal    to       ten    days    from   imposition     of     the
    sentence.       See   State   v.    Olivero,         
    221 N.J. 632
    ,   639    (2015)
    ("[T]he goal of statutory interpretation is to ascertain and
    effectuate     the      Legislature's            intent."     (quoting     Murray        v.
    Plainfield     Rescue    Squad,     
    210 N.J. 581
    ,     592   (2012)));      In    re
    Registrant N.B., 
    222 N.J. 87
    , 98 (2015) ("[T]he best indicator
    of that intent is the plain language chosen by the Legislature."
    6                                   A-2477-14T3
    (alteration in original) (quoting State v. Gandhi, 
    201 N.J. 161
    ,
    176 (2010))).
    The State argues that the phrase "a criminal offense as
    defined in subsection b. of this section" limits N.J.S.A. 2C:35-
    5.7(k) to apply only to appeals pertaining to N.J.S.A. 2C:35-
    5.7(b).    Thus, the State argues the ten-day period in subsection
    k does not apply to an appeal filed in connection with the
    denial    of    a    DORO     sought    under    subsection    h,    which    is   the
    provision authorizing a DORO after a conviction.                      See N.J.S.A.
    2C:35-5.7(h).         There are several flaws with the State's proposed
    interpretation.
    First,          such   an   interpretation      is   inconsistent      with    the
    language       of    the    Act.       Subsection   b    of   N.J.S.A.     2C:35-5.7
    addresses the procedure for the State to seek a DORO after a
    person     is       charged     with     a   drug   offense     on     a     summons.
    Consequently, subsection b does not deal with a DORO sought
    after conviction.             Subsection b, moreover, does not define "a
    criminal offense."            That definition is found in N.J.S.A. 2C:35-
    5.6(c).
    Second, if subsection k does not apply, then the State
    would have no right to appeal at all.                    "Sentencing appeals by
    the State implicate the prohibitions against multiple punishment
    incorporated in the double jeopardy provisions of the Federal
    7                               A-2477-14T3
    and State Constitutions."               State v. Johnson, 
    376 N.J. Super. 163
    , 171 (App. Div.) (citing State v. Roth, 
    95 N.J. 334
    , 342-43
    (1984)), certif. denied, 
    183 N.J. 592
     (2005).                   Consequently, the
    State can appeal the sentence of a criminal defendant only in
    two circumstances: (1) if a statute expressly authorizes such an
    appeal, and (2) if the sentence is illegal.                      Roth, 
    supra,
     
    95 N.J. at 342-43
    .         In Roth, our Supreme Court traced the history
    of the government's right to appeal criminal sentences, and held
    that because of constitutional double jeopardy concerns, "the
    government     cannot     take   an     appeal    in    a   criminal   case    absent
    express statutory authority."              
    Id. at 341-43
    ; see also United
    States v. DiFrancesco, 
    449 U.S. 117
    , 131-32, 
    101 S. Ct. 426
    ,
    434-35,   
    66 L. Ed. 2d 328
    ,    342-43       (1980)   (holding   that      the
    government could appeal a criminal sentence without violating
    the Double Jeopardy Clause when Congress expressly authorized
    such an appeal); State v. Veney, 
    327 N.J. Super. 458
    , 461 (App.
    Div. 2000) ("[R]estrictions of the State's right to appeal rest
    upon   the   principle      that      appeals    of    sentences   implicate        the
    Double Jeopardy Clauses of the federal and state constitutions
    . . . ."); R. 2:3-1 (identifying the limited grounds when the
    State can appeal in a criminal action).
    Here we are not dealing with an illegal sentence.                  Thus, we
    return to the language of subsection k, which expressly allows
    8                                   A-2477-14T3
    the State to appeal.               Without the phrase "for a criminal offense
    as defined in subsection b. of this section," the meaning of the
    language       of    subsection         k   is   clear:        the       ten-day   restriction
    applies to the denial of a DORO sought in connection with a
    sentence.           Accordingly, the question is what does the phrase
    mean.      The       only    logical        interpretation            is    that       the    phrase
    references the provision of the Act that defines a criminal
    offense    covered          by    the    Act.        As    already         pointed       out,      the
    definition of the crimes covered by the Act is found in N.J.S.A.
    2C:35-5.6(c).          That interpretation is also consistent with the
    plain    reading       of        the    phrase    as      it       references      a    "criminal
    offense."        Such an interpretation is also consistent with the
    intent    of    the    statute.             Subsection         k    of    N.J.S.A.      2C:35-5.7
    clearly authorizes the State to appeal, within ten days, the
    denial of a DORO sought in connection with the sentence of a
    drug offender.
    The        Legislature         clearly       wanted        to    give    prosecutors           the
    right to appeal.             Indeed, in the Senate Judiciary Committee's
    statement to the original bill, the Committee noted: "The bill
    also expressly authorizes the prosecuting agency to appeal any
    determination by a court not to issue a 'stay-away' order."
    Senate Judiciary Comm., Statement to S. 1697, 208th Leg., 2d
    Sess., at 1-2 (Feb. 18, 1999).                       Accordingly, our interpretation
    9                                           A-2477-14T3
    of the Act is consistent with the State's right to appeal.                                That
    appeal, however, must be filed within ten days to avoid double
    jeopardy concerns.
    Counsel         for    defendants        suggests      that      the     reference       to
    subsection      b    is   in    fact    a    reference     to       N.J.S.A.      2C:35-5.6.
    Counsel    arrives        at   that    interpretation         by     pointing      out    that
    subsection b of N.J.S.A. 2C:35-5.7 has within it a reference to
    subsection b of N.J.S.A. 2C:35-5.6.                      See N.J.S.A. 2C:35-5.7(b)
    ("[T]he court . . . shall . . . issue an order prohibiting the
    person    from      entering     any     place     defined      by    subsection        b.    of
    section 3 of P.L.1999, c. 334 ([N.J.S.A. 2C:35-5.6]) . . . .").
    The reference to subsection b of N.J.S.A. 2C:35-5.6 is to the
    definition of "place."                 Accordingly, we again                return to the
    plain    and     logical       meaning      of     the   Act,       which    is    that      the
    reference      to    "a    criminal         offense"     is     a    reference       to      the
    definition of the crimes covered by the Act found in N.J.S.A.
    2C:35-5.6(c).
    Our        interpretation          of     N.J.S.A.        2C:35-5.7(k)         is     also
    consistent with the legislative history of the Act.                               As already
    noted, the Act has always provided the State with a ten-day
    right to appeal the denial of a DORO at sentencing.                                  See L.
    1999, c. 334, § 4.             The Act was amended in 2001, 2004, 2006 and
    2011.     See L. 2001, c. 365, § 2; L. 2004, c. 130, § 14; L. 2006,
    10                                    A-2477-14T3
    c. 47, § 27; L. 2011, c. 44, § 1.                     All of those amendments
    included   the   relevant    language       concerning     an   appeal      of    the
    denial of a DORO.          See ibid.        The 2001 amendment moved the
    language concerning the time to appeal from subsection h to a
    new subsection k.     L. 2001, c. 365, § 2 (codified as amended at
    N.J.S.A.   2C:35-5.7(k)).       The    2001      amendment      also    moved     the
    original   language   in    subsection       b   to    subsection      h.      Ibid.
    (codified as amended at N.J.S.A 2C:35-5.7(h)).                      Further, the
    2001 amendment added new provisions to address the procedures
    for applying for a restraining order when the person was first
    charged with a drug offense.                Ibid. (codified as amended at
    N.J.S.A.   2C:35-5.7(a)-(d)).         The     amendment,     however,       did   not
    update the language to incorporate the subsection change within
    the paragraph regarding the State's right to appeal.                           Ibid.
    (codified as amended at N.J.S.A. 2C:35-5.7(k)).                        Thus, while
    N.J.S.A.   2C:35-5.7(k)     still   refers       to    subsection      b,   we    are
    satisfied the Legislature intended that the statute be edited in
    conformity with the other revisions to refer to subsection h.
    Finally, we address whether the ten-day period should be
    strictly enforced.     The precedent concerning an analogous ten-
    day appeal period from a criminal sentence, coupled with double
    jeopardy principles, mandates strict enforcement.                      Pursuant to
    N.J.S.A. 2C:44-1(f)(2), the State is authorized to appeal the
    11                                   A-2477-14T3
    downgrade or non-custodial sentence regarding convictions for
    first or second degree crimes.                  The language of N.J.S.A. 2C:44-
    1(f)(2)      authorizing         the    State's       right      of    appeal    is     nearly
    identical to the language in the DORO Act.                               Compare N.J.S.A.
    2C:35-5.7(k) ("[T]he sentence . . . shall not become final for
    ten days in order to permit the appeal of the court's findings
    by    the    prosecution.")            with    N.J.S.A.         2C:44-1(f)(2)         ("[S]uch
    sentence shall not become final for 10 days in order to permit
    the    appeal       of    such    sentence          by    the     prosecution.").            In
    construing         that    language,      our       Supreme      Court    has    held     that
    "[s]trict compliance with the terms of the statute is required;
    failure to perfect an appeal within the ten-day period will
    result in dismissal of the State's appeal."                             State v. Sanders,
    
    107 N.J. 609
    , 616 (1987); see also State v. Gould, 
    352 N.J. Super. 313
    ,    318-19    (App.      Div.       2002)   (dismissing         the   State's
    appeal of a probationary sentence that was not filed within ten
    days as mandated by N.J.S.A. 2C:44-1(f)(2)).
    Here, both defendants were sentenced on December 2, 2014.
    The State filed its notices of appeal on December 23, 2014.
    Thus, both notices were filed beyond the ten-day period.
    The notices of appeal filed by the State reference the
    December      9,    2014     orders.          Those      orders       granted   defendants'
    cross-motions to preclude the imposition of a DORO.                                   Because
    12                                     A-2477-14T3
    double jeopardy would otherwise begin to attach at the time of
    sentencing, N.J.S.A. 2C:35-5.7(k) specifically provides that the
    sentence imposed by the court "shall not become final for ten
    days in order to permit the appeal of the court's findings by
    the prosecution."       Here, the State's time to appeal began to run
    the day after the sentence; that is, December 3, 2014.                       See
    Johnson, 
    supra,
     
    376 N.J. Super. at 173
     ("[T]he ten-day period
    commences on the day after sentence is pronounced . . . .").
    The State also argues that its notices were actually mailed
    on December 17, 2014.        The mailing of a notice of appeal is not
    the controlling date; rather, the controlling date is the date
    of filing.        See State v. One 1986 Subaru, 
    230 N.J. Super. 451
    ,
    458 (App. Div. 1989), aff’d in part, rev’d in part, 
    120 N.J. 310
    (1990); Pressler & Verniero, Current N.J. Court Rules, comment 2
    on   R.   1:5-6    (2016)   ("[F]iling    can   only   be   effected   by    the
    receipt of the filed paper by the designated office.").                Indeed,
    the State conceded this point at oral argument.
    In summary, because the DORO Act requires an appeal from
    the denial of a DORO sought at sentencing to be filed within ten
    days, and because the State did not file within that time, both
    appeals must be dismissed for lack of jurisdiction.
    Dismissed.
    13                                A-2477-14T3
    

Document Info

Docket Number: A-2477-14T3 A-2478-14T3

Filed Date: 12/28/2015

Precedential Status: Precedential

Modified Date: 12/28/2015