State of New Jersey v. Mwanza Fitzpatrick

NOT FOR PUBLICATION WITHOUT THE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
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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
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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
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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.
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