State v. Darryl Bishop State V.wilberto Torres(072395)

SYLLABUS
(This syllabus is not part of the opinion of the Court. 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 Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. Darryl Bishop and State v. Wilberto Torres (A-26/27-13) (072395)
(NOTE: The Court did not write a plenary opinion in this case. Instead, the Court affirms the judgment of
the Appellate Division substantially for the reasons expressed in Judge Lisa’s written opinion, which is
published at 429 N.J. Super. 533 (App. Div. 2013).)
Argued October 7, 2015 – Decided October 21, 2015
PER CURIAM
The issue in this appeal is whether the prosecutor, by consenting to defendants’ special probation sentences
pursuant to N.J.S.A. 2C:35-14, irrevocably waived the right to seek an extended term sentence with a parole
disqualifier – the initial sentencing alternative – upon permanent revocation of each defendant’s special probation.
Pursuant to a plea agreement, defendants Darryl Bishop and Wilberto Torres pled guilty to possession with
intent to distribute heroin within one thousand feet of school property, in violation of N.J.S.A. 2C:35-7. Pursuant to
N.J.S.A. 2C:43-6f, defendants were eligible for mandatory extended terms based on their prior convictions for drug
offenses. The prosecutor consented to defendants being sentenced to Drug Court, specifically special probation
pursuant to N.J.S.A. 2C:35-14a. Although the State recommended special probation, each plea agreement provided
for an “alternate sentence” of seven years’ imprisonment with a forty-two-month period of parole ineligibility,
which constituted an extended term sentence.
After serving a portion of their special probation term, each defendant pled guilty to violating probation and
their probation was permanently revoked. At their violation of probation (VOP) sentencing hearings, the prosecutor
sought to have the court impose the alternative sentences considered at defendants’ initial sentencing hearings, and
provided for in their respective plea agreements (i.e., seven-year prison terms with forty-two-month parole
disqualifiers). In each case, the sentencing court found the same three aggravating factors found at initial sentencing
(risk of re-offense, prior record, and the need for deterrence) and no mitigating factors. The court sentenced Bishop
to a seven-year prison term with a forty-two-month parole disqualifier and Torres to a seven-year prison term with a
thirty-six-month parole disqualifier.
Defendants appealed to the Appellate Division, arguing that by consenting to special probation, the
prosecutor had irrevocably waived the right to pursue the alternative sentences contemplated when they were
initially sentenced. Defendants asserted that the new sentences were in violation of State v. Baylass, 114 N.J. 169
(1989), State v. Lagares, 127 N.J. 20 (1992), State v. Vasquez, 129 N.J. 189 (1992), and State v. Peters, 129 N.J.
210 (1992), all of which involved defendants whose “regular” probation pursuant to N.J.S.A. 2C:45-3b had been
revoked. Defendants maintained that pursuant to the sentencing principles established in those cases, their exposure
should have been no more than four-year terms with no period of parole ineligibility. They argued that because they
chose special probation over the alternative sentencing option, a VOP could not trigger the alternative sentences
upon revocation of special probation.
On February 27, 2013, in a published decision, the Appellate Division affirmed defendants’ sentences. 429
N.J. Super. 533 (App. Div. 2013). The appellate panel distinguished special probation from regular probation,
noting that generally, in the case of regular probation, which typically involves third and fourth-degree offenses,
there is a presumption against state prison for defendants without a prior criminal record. If the defendant has a
record, the court engages in a balancing of aggravating and mitigating factors to determine eligibility for regular
probation. The Appellate Division observed, however, that special probation was tailored for those convicted of
first or second-degree crimes that carry a presumption of incarceration and are thus not eligible for regular
probation. The Appellate Division recognized, however, that in the case of special probation the court does not
engage in a weighing of aggravating and mitigating factors to determine eligibility, but is guided by statutory
requirements pursuant to N.J.S.A. 2C:35-14. The Appellate Division concluded that it was entirely logical that,
given the different criteria for eligibility into either regular probation or special probation, different consequences
would flow should probation be permanently revoked.
The Appellate Division reviewed the cases relied on by defendants and determined that these cases,
decided between 1989 and 1992, pre-dated N.J.S.A. 2C:35-14f(4), which provides, in pertinent part:
(4) If the court permanently revokes the person’s special probation pursuant to this subsection, the court
shall impose any sentence that might have been imposed, or that would have been required to be imposed,
originally for the offense for which the person was convicted or adjudicated delinquent. The court shall
conduct a de novo review of any aggravating and mitigating factors present at the time of both original
sentencing and resentencing.
The Appellate Division noted that this provision was a “marked departure from the regular probation
standard and provides express statutory direction preserving all sentencing provisions available at the original
sentencing in the event of revocation of special probation.” 429 N.J. Super. at 547. The Appellate Division
observed that this was a particularly important development as it created for special probationers a strong incentive
to stay on course towards rehabilitation, knowing that should their special probation be permanently revoked, they
would face the substantial alternative sentence that would otherwise have been imposed. The Appellate Division
concluded that the defendants in this case were fully informed of the consequences should they violate special
probation and that the sentences imposed upon revocation were appropriate.
HELD: The judgment of the Appellate Division is affirmed substantially for the reasons expressed in the Appellate
Division’s opinion, reported at 429 N.J. Super. 533 (App. Div. 2013).
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, and SOLOMON
join in this opinion. JUSTICE FERNANDEZ-VINA and JUDGE CUFF (temporarily assigned) did not
participate.
2
SUPREME COURT OF NEW JERSEY
A-26/27 September Term 2013
072395
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DARRYL BISHOP,
Defendant-Appellant.
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILBERTO TORRES,
Defendant-Appellant.
Argued October 7, 2015 – Decided October 21, 2015
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 429 N.J. Super. 533 (App. Div.
2013).
John W. Douard, Assistant Deputy Public
Defender, argued the cause for appellants
(Joseph E. Krakora, Public Defender,
attorney).
Joie D. Piderit, Assistant Prosecutor,
argued the cause for respondent (Andrew C.
Carey, Middlesex County Prosecutor,
attorney).
1
Jennifer E. Kmieciak, Assistant Attorney
General, argued the cause for amicus curiae
Attorney General of New Jersey (John H.
Hoffman, Acting Attorney General, attorney).
Jeffrey S. Mandel submitted a letter in lieu
of brief on behalf of amicus curiae
Association of Criminal Defense Lawyers of
New Jersey (Cutolo Mandel, attorneys).
PER CURIAM
The judgment of the Appellate Division is affirmed,
substantially for the reasons expressed in Judge Lisa’s
opinion reported at 429 N.J. Super. 533 (App. Div. 2013).
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, and SOLOMON join in this opinion. JUSTICE FERNANDEZ-
VINA and JUDGE CUFF (temporarily assigned) did not participate.
2
SUPREME COURT OF NEW JERSEY
NO. A-26/27 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DARRYL BISHOP,
Defendant-Appellant.
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILBERTO TORRES,
Defendant-Appellant.
DECIDED October 21, 2015
Chief Justice Rabner PRESIDING
OPINION BY Per Curiam
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST AFFIRM
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA --------------------
JUSTICE SOLOMON X
JUDGE CUFF (t/a) --------------------
TOTALS 5