STATE OF NEW JERSEY VS. SADIQUA N. MITCHELL (16-09-2710, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1913-18T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SADIQUA N. MITCHELL,
Defendant-Appellant.
Submitted March 31, 2020 – Decided April 24, 2020
Before Judges Gilson and Rose.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 16-09-2710.
Joseph E. Krakora, Public Defender, attorney for
appellant (Alyssa A. Aiello, Assistant Deputy Public
Defender, on the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Frank J. Ducoat,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Pursuant to a negotiated plea agreement with the State, defendant Sadiqua
N. Mitchell pled guilty to second-degree unlawful possession of a .40 caliber
handgun, N.J.S.A. 2C:39-5(b)(1). In exchange for defendant's guilty plea, the
State recommended a noncustodial probationary term consistent with the Graves
Act waiver statute, N.J.S.A. 2C:43-6.2. The Criminal Division presiding judge
granted the waiver and the trial judge imposed a four-year probationary term,
with the potential for early termination, provided defendant complied fully with
the terms of probation. But, defendant violated those terms. Thereafter, the
same judge who had imposed sentence afforded defendant opportunities to
improve, but she failed to engage in a manner that would justify continuing her
probationary term. Accordingly, the judge terminated probation without
improvement.
Following oral argument over the course of two hearings, the judge
resentenced defendant to a five-year term of imprisonment with a "mandatory
minimum" term of forty-two months without parole pursuant to the Graves Act,
N.J.S.A. 2C:43-6(c). In reaching her decision, the judge noted she was
"constrained" to impose the parole disqualifier under that section of the Graves
Act. The judge stayed defendant's sentence pending appeal.
On appeal, defendant raises a single point for our consideration:
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POINT I
THE GRAVES ACT MINIMUM TERM IS NOT
MANDATORY FOR PURPOSES OF
RESENTENCING ON A VIOLATION OF
PROBATION. THEREFORE, DEFENDANT'S
SENTENCE MUST BE VACATED AND THE
MATTER REMANDED FOR RESENTENCING IN
ACCORDANCE WITH THE STANDARDS SET
FORTH IN STATE V. BAYL[A]SS.[1]
More particularly, defendant renews her argument that the State's
agreement to waive the mandatory minimum term on defendant's original
sentence, "survives a violation of probation" and therefore applies on
resentencing. Defendant does not challenge the revocation of her probationary
term.
The State now joins in the argument advanced by defendant, conceding a
remand is necessary for resentencing. But, the State urges that on resentencing
the judge
must still adhere to the other sentencing provisions in
the Code, including the normal range for second-degree
offenses, the presumption of incarceration, and the high
bar of imposing a sentence within the third-degree
range. The court may also impose a period of parole
ineligibility if, in its discretion, it deems it appropriate.
1
114 N.J. 169 (1989).
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3
Having reviewed the record in light of governing principles, we agree with
defendant's argument, as circumscribed by the State. Accordingly, we vacate
the sentence and remand for resentencing.
Because the issue raised on appeal implicates the legality of the sentence
imposed, our review of the judge's decision is de novo. See State v. Nance, 228
N.J. 378, 393 (2017). We therefore "afford[] no special deference to the
[judge's] interpretation of the relevant statutes." Ibid.; see also State v. Grate,
220 N.J. 317, 329 (2015).
Although the precise issue presented is one of first impression, we draw
guidance – as did the parties – from our Supreme Court's companion decisions
in State v. Vasquez, 129 N.J. 189 (1992) and State v. Peters, 129 N.J. 210 (1992),
which shared similar fact patterns. In both cases, the defendants pled guilty to
distribution of a controlled dangerous substance within 1,000 feet of a school,
N.J.S.A. 2C:35-7, pursuant to a negotiated plea agreement with the State.
Vasquez, 129 N.J. at 192; Peters, 129 N.J. at 213. The State in return agreed to
waive the mandatory minimum term of imprisonment under N.J.S.A. 2C:35-12,
recommended a probationary term, and indicated it would not waive the parole
ineligibility term on resentencing for a violation of probation. Vasquez, 129
N.J. at 192; Peters, 129 N.J. at 213. Both defendants violated the terms of their
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probationary terms and were resentenced to the mandatory three-year term of
parole ineligibility under N.J.S.A. 2C:35-7. Vasquez, 129 N.J. at 193; Peters,
129 N.J. at 214-15. In each case, the trial court indicated it was "compelled" to
sentence the defendant to a mandatory minimum term. Vasquez, 129 N.J. at
192-93; Peters, 129 N.J. at 215.
Reversing both sentences, the Court distinguished between the nature of
the parole disqualifier set forth in N.J.S.A. 2C:35-7 – which can be waived under
N.J.S.A. 2C:35-12 – and mandatory sentencing statutes, which do not permit
judicial discretion. Vasquez, 129 N.J. at 199; see also Peters, 129 N.J. at 221
(deciding the same issues under the rationale set forth in Vasquez). The Court
observed:
Section 7's parole disqualifier is not absolute -- it
can be waived at the discretion of the prosecutor.
Because the prosecutor can waive the parole
disqualifier, section 7 sentencing is not "mandatory," at
least in the typical or conventional use of mandatory
sentencing. Therefore, the section 7 sentencing scheme
is a hybrid, combining mandatory and discretionary
features and delegating sentencing authority to both the
courts and the prosecutors.
....
Moreover, section 12, which authorizes the waiver of
the mandatory term, does so only in the context of the
original sentencing. That waiver may occur as part of
a plea agreement or a post-conviction sentencing
A-1913-18T2
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agreement. However, the legislation does not expressly
mandate that a parole disqualifier be applied at the
resentencing stage or authorize the exercise by the
prosecution of any power to waive or request such a
parole disqualifier at that stage.
In addition, the imputation of such a mandatory
term would be fundamentally inconsistent with the
legislative scheme governing resentencing for violation
of probation.
[Vasquez, 129 N.J. at 199, 201.]
Although the Court cited the Graves Act as an example of a statutory
scheme that did not permit prosecutors to "eliminate or reduce the sentences that
are mandatorily prescribed [thereunder] through plea bargains," id. at 199, we
note the waiver provision set forth in N.J.S.A. 2C:43-6.2,2 was not yet enacted
when the Court decided Vasquez and Peters. We therefore conclude the
rationale of the Court's decisions in those cases applies here, where a similar
"hybrid" statutory scheme permitted the prosecutor to waive the mandatory
minimum term for defendant's weapons offense.
We further agree with the State that on resentencing, the judge must
sentence defendant pursuant to all applicable sentencing provisions. Because
unlawful possession of a weapon is a second-degree offense, the sentencing
2
See L. 1993, c. 49, §2.
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range is between five and ten years, N.J.S.A. 2C:43-6(a)(2), and only if the judge
"is clearly convinced that the mitigating factors clearly substantially outweigh
the aggravating factors and . . . the interests of justice demands," then the judge
may sentence defendant as a third-degree offender, N.J.S.A. 2C:44-1(f)(2).
Regardless, the presumption of imprisonment applies, N.J.S.A. 2C:44-1(d). See
also Nance, 228 N.J. at 398-99. Should the judge impose sentence in the third-
degree range, the sentence must be stayed for ten days to permit the State to
appeal. N.J.S.A. 2C:44-1(f)(2).
Although, as the State argues, the judge on resentencing "may" impose a
period of parole ineligibility, see N.J.S.A. 2C:43-6(b), the Court has noted "it
will be a rare case in which the balance of the original aggravating factors and
surviving mitigating factors weigh in favor of . . . a period of parole
ineligibility." 3 Baylass, 114 N.J. at 178. Because at the original sentencing, the
mitigating factors weighed in favor of probation, a parole disqualifier ordinarily
should not be imposed when resentencing defendant for the probation violation.
3
At the original sentencing hearing, the judge determined mitigating factors
seven (defendant had no prior criminal activity), N.J.S.A. 2C:44-1(b)(7), and
ten (defendant was likely to respond to probationary treatment), N.J.S.A. 2C:44-
1(b)(10) outweighed aggravating factor nine (specific and general deterrence),
N.J.S.A. 2C:44-1(a)(9). Following the violation of probation, the judge found
no mitigating factors applied.
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Ibid. In reweighing the factors on resentencing, the court should consider the
aggravating factors the court found applicable "at the original hearing and the
mitigating factors as affected by the probation violations." See ibid.; State v.
Molina, 114 N.J. 181, 184-85 (1989). The judge may not, however, find any
new aggravating factors. Baylass, 114 N.J. at 176-78.
In sum, on remand the judge "may impose on . . . defendant any sentence
that might have been imposed originally for the offense of which [s]he was
convicted," N.J.S.A. 2C:45-3(b); see also State v. Frank, 280 N.J. Super. 26, 40
(App. Div. 1995) (recognizing "the original plea agreement does not survive a
violation of probation."). On resentencing, the judge "should view defendant as
[s]he stands before the court on that day." State v. Randolph, 210 N.J. 330, 354
(2012).
Vacated and remanded for resentencing. We do not retain jurisdiction.
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