State v. Sherron Rolex

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 the Court did not file a full opinion in this matter. The background information is derived from the opinion of the Appellate Division)
State v. Sherron Rolex (A-131-99)
 
 
Argued May 1, 2001 -- Decided May 30, 2001

PER CURIAM

Sherron Rolex was charged in two Camden County accusations with possession of cocaine within 1,000 feet of school property with intent to distribute. Rolex pled guilty to the charges pursuant to a plea bargain in which the Prosecutor agreed to recommend that Rolex be admitted to a pilot drug treatment program or, if not accepted into the program, that he be sentenced to concurrent five-year terms of imprisonment with an eighteen-month parole ineligibility provision. The plea agreement also provided that if Rolex failed to appear for sentencing or any other mandated court appearance before sentencing (or was charged with a new offense), his guilty plea would stand and the Prosecutor would be free to recommend any lawful sentence.

Rolex failed to appear either for a mandated drug court appearance on October 6, 1997, or for sentencing on November 18, 1997. When the rescheduled sentencing occurred on January 13, 1998, the Prosecutor took the position that Rolex had violated the plea agreement. The trial court sentenced Rolex to concurrent four-year terms with three years of parole ineligibility.

Rolex appealed to the Appellate Division, challenging his sentence. That court, in a published opinion ( 329 N.J. 220 (2000)), traced the history of Court decisions on the application of a prosecutor's statutory ability to waive the mandatory period of parole ineligibility otherwise required by N.J.S.A. 2C:35-7. It concluded that there was merit to Rolex's challenge to a directive of the Attorney General in respect of "no appearance/no waiver" pleas. It further concluded that

the Attorney General should be afforded an opportunity to participate in this appeal. In addition, the parties, including the Attorney General, should address the question whether it is feasible to devise more specific guidelines than are set forth in Directive No.1 to identify those cases in which it is appropriate to include a no appearance/no waiver provision in a plea offer.
 
The parties were also directed to consider whether, assuming no appearance/no waiver agreements were still valid after the Court's decision in State v. Brimage, there is a need to have the statewide guidelines provide that under some circumstances, a defendant's failure to appear may result in a period of parole ineligibility that is longer than the period provided in the plea agreement but shorter than the full three years under the statute.
 
After the Appellate Division remanded the case to the trial court for further proceedings, the Supreme Court granted the State's petition for certification. The Attorney General participated in the appeal as amicus curiae.

HELD: The judgment of the Appellate Division remanding the matter to address post-State v. Brimage questions raised in respect of no appearance/no waiver plea agreements is affirmed, substantially for the reasons expressed by that court in its published opinion.

1. The Supreme Court shares the concerns of the Appellate Division. It notes that the Attorney General reported only four counties currently use a no appearance/no waiver agreement mechanism. In those counties, the mechanism is viewed as a benefit to poor defendants who cannot make bail. (p. 3)

2. The Court raises additional inquiries for the trial court to review on remand. These included: What is it about the bail situation in the four counties using the no appearance/no waiver provision that makes the use of that part of the agreement either necessary or desirable? Is such an agreement, in fact, a benefit to poor defendants? If so, why is it not in effect in all counties? How is the Brimage goal of uniformity affected by a scheme that has so few adherents? Finally, and perhaps most important, has the Attorney General addressed the concerns raised by the Appellate Division that not every failure to appear by a defendant in a no appearance/no waiver agreement justifies a three-year parole ineligibility period? (pp. 3-4)

The judgment of the Appellate Division is Affirmed.

CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LONG, LaVECCHIA, and ZAZZALI join in the Court's opinion. JUSTICE VERNIERO did not participate.

 
 
SUPREME COURT OF NEW JERSEY
A- 131 September Term 1999

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

SHERRON ROLEX,

Defendant-Respondent.

Argued May 1, 2001 -- Decided May 30, 2001

On certification to the Superior Court, Appellate Division, whose opinion is reported at 329 N.J. Super. 220 (2000).

Jack L. Weinberg, Assistant Prosecutor, argued the cause for appellant (Lee A. Solomon, Camden County Prosecutor, attorney).

Alison S. Perrone, Assistant Deputy Public Defender, argued the cause for respondent (Peter A. Garcia, Acting Public Defender, attorney).

Janet Flanagan, Deputy Attorney General, argued the cause for amicus curiae, Attorney General of New Jersey (John J. Farmer, Jr., Attorney General, attorney).
 

PER CURIAM
In this case, the Appellate Division was presented with the issue of the impact of State v. Brimage, 153 N.J. 1 (1998), on a no appearance/no waiver plea agreement. That is a question complicated by the rather broadly-drawn Brimage guidelines
that give an individual county prosecutor wide discretion to determine the circumstances under which to include a no appearance/no waiver provision in a plea offer, which appears, at least on an initial review, to be contrary to the holding in Brimage. State v. Rolex, 329 N.J. Super. 220, 226 (App. Div.), certif. denied, 165 N.J. 486 (2000).
As a result, the Appellate Division remanded the case for supplementation of the record regarding the actual operation of a no appearance/no waiver agreement. Id. at 227. More particularly, the court stated:
[T]he parties, including the Attorney General, should address the question whether it is feasible to devise more specific guidelines than are set forth in Directive No. 1 to identify those cases in which it is appropriate to include a no appearance/no waiver provision in a plea offer. The parties also should consider whether, assuming no appearance/no waiver plea agreements remain valid after Brimage, there is a need for statewide guidelines concerning the prosecutor's invocation of the no waiver provision following a defendant's failure to appear, and if so, whether those guidelines should provide that, under some circumstances, a defendant's failure to appear may result in a sentence which includes a period of parole ineligibility that is longer than the period provided in the plea agreement, but shorter than the full three years mandated by N.J.S.A. 2C:35-7.
 
[Ibid.]

We granted certification, 165 N.J. 486 (2000), to review the State's contention that a remand is unnecessary . We now affirm substantially for the reasons stated in the opinion of the Appellate Division. 329 N.J. Super. 220 (App. Div. 2000).
We share the concerns expressed by the Appellate Division. What we learned from the parties did nothing to assuage those concerns, but only heightened them. On the one hand, the prosecutor argued that a no appearance/no waiver agreement is a benefit to poor defendants who cannot make bail. On the other, the Attorney General represented that only four of the twenty-one counties presently use such an agreement in drug cases. That information raises additional concerns. What is it about the bail situation in those four counties that makes a no appearance/no waiver agreement either necessary or desirable? Is such an agreement, in fact, a benefit to poor defendants? If so, why is it not in effect in all counties? How is the Brimage goal of uniformity affected by a scheme that has so few adherents?
Finally, and perhaps most important, has the Attorney General addressed the concerns raised by the Appellate Division that not every failure to appear by a defendant involved in a no appearance/no waiver agreement justifies a three-year parole ineligibility period? The Court is interested in whether an added punishment that is proportionate to the circumstances surrounding the non-appearance should be regarded as the standard sanction for violation of the agreement. Those questions, in addition to the ones posed by the Appellate Division, require disposition on the remand which should be scheduled forthwith.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LONG, LaVECCHIA and ZAZZALI join in the Court's opinion. JUSTICE VERNIERO did not participate. SUPREME COURT OF NEW JERSEY
 

NO. A-131

SEPTEMBER TERM 1999
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

SHERRON ROLEX,

Defendant-Respondent.

DECIDED May 30, 2001 Chief Justice Poritz

PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY DISSENTING OPINION BY
CHECKLIST
AFFIRM CHIEF JUSTICE PORITZ X JUSTICE STEIN X JUSTICE COLEMAN X JUSTICE LONG X JUSTICE VERNIERO --------------- --------- ----- JUSTICE LaVECCHIA X JUSTICE ZAZZALI X TOTALS
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