State v. Bishop, A-0048-11T4, A-1399-11T4; Appellate Division; opinion by Lisa, J.A.D., retired and temporarily assigned on recall; decided and approved for publication February 27, 2013. Before Judges Simonelli, Koblitz and Lisa. On appeal from the Law Division, Middlesex County, Indictment Nos. 08-09-1500 and 08-12-2068. DDS No. 14-2-9146 [27 pp.]

Defendants Darryl Bishop and Wilberto Torres pleaded guilty to possession with intent to distribute heroin within 1,000 feet of school property. Both had been previously convicted of drug offenses, rendering them eligible for mandatory extended terms under N.J.S.A. 2C:43-6f.

Under plea agreements, the prosecutor recommended sentencing to special probation, Drug Court, pursuant to 2C:35-14a. The agreements also provided for an "alternate sentence" of seven years’ imprisonment with a 42-month parole disqualifier, an extended term sentence pursuant to 2C:43-6f.

Each defendant later pleaded guilty to violation of probation. The prosecutor sought imposition of the "alternative sentence" in the plea agreements. The court reassessed the applicable aggravating and mitigating factors and sentenced Bishop to seven years’ imprisonment with a 42-month parole disqualifier, and Torres to seven years’ imprisonment with a 36-month parole disqualifier.

Defendants contend that their VOP sentences are an abuse of discretion and violate the sentencing principles in 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), cases applicable to resentencing after a revocation of regular probation. They argue that, by consenting to their initial special probation sentences, the prosecutor irrevocably waived the right to seek such a sentence on permanent revocation of special probation and that their VOP sentences should have been no more than four years’ imprisonment with no parole disqualifier.

Held: Unlike with resentencing after revocation of regular probation, mandatory periods of parole ineligibility and mandatory extended term provisions that existed at the time of original sentencing survive during the term of Drug Court special probation and remain applicable at the time of resentencing on revocation of that probation.

The panel begins by distinguishing between regular probation and special probation. Regular probation, available under 2C:43-2b(2), is typically imposed for third- or fourth-degree offenses that do not contain a specific provision requiring a state prison sentence. Special probation is designed to divert otherwise prison-bound offenders into an intensive form of probation designed to address the problem of drug-dependent offenders. It became available in 1999 with amendment to 2C:35-14. That amendment set special probation apart from regular probation, rendering each a separate and distinct sentencing disposition.

The panel says that, in light of the different criteria governing admission to these separate forms of probation, the consequences of resentencing on revocation of probation should also differ.

The court then reviews the cases relied on by defendants. Baylass held that, when resentencing on revocation of regular probation, the court must consider the aggravating factors that existed at the time of the original sentence and balance them against mitigating factors as affected by probation violations. Because the weighing of aggravating and mitigating factors at original sentencing supported a probationary sentence, Bayless held that the post-VOP balancing would rarely weigh in favor of a term of imprisonment greater than the presumptive (now mid- range) sentence or of a period of parole ineligibility.

In Vasquez, the defendant pleaded guilty to possession with intent to distribute cocaine within 1,000 feet of school property and the prosecutor waived a mandatory parole disqualifier and recommended a probationary sentence, but the plea agreement provided that if the defendant violated probation, the prosecutor would seek a mandatory parole disqualifier. The defendant violated probation and the court concluded it had no discretion to refrain from imposing the statutorily mandated parole disqualifier.

The court analyzed the interrelationship between 2C:35-7 (providing for the mandatory parole disqualifier), and 2C:35-12 (authorizing prosecutorial waiver of the parole disqualifier) and held that on resentencing after a VOP for a school-zone offense the court must follow the Baylass principles subject to the court’s discretionary authority to impose a period of parole ineligibility under appropriate circumstances and based on adequate findings.

The panel then turns to 2C:35-14f(4), enacted in 1999, saying it changed the authority of courts for resentencing on permanent revocation of special probation.

The panel concludes that the statute reflects a legislative intent to provide a VOP resentencing regime for special probation separate than that for regular probation. A marked departure from the regular probation standard, it provides express statutory direction preserving all sentencing provisions available at the original sentencing in the event of revocation of special probation. This new provision comports with the fundamental difference in admission criteria between special and regular probation.

The panel bases its conclusion on the plain language of the statute but says that to the extent that any ambiguity might exist, its conclusion is bolstered by several factors. These include that the Legislature left untouched the resentencing provision for regular probation. This indicates an intent to leave intact the Baylass principles for resentencing on revocation of regular probation, but to change the principles applicable to resentencing on revocation of special probation.

Further, only in a rare case would a nonprison-bound offender admitted to regular probation, on revocation of probation, receive more than a midrange flat sentence. That analytical framework does not apply to prison-bound offenders sentenced to special probation.

Also, the carrot-and-stick approach is integral to the Drug Court concept. The ultimate leverage is the threat of the substantial sentence that would have been imposed originally if the defendant were not admitted to through special probation.

And, for those who do not successfully avail themselves of the opportunity in Drug Court, the sentencing consequences should be the same as if the opportunity had not been extended in the first place.

The panel says the court followed the correct sentencing guidelines and imposed appropriate sentences in both cases.

For appellants Bishop and Torres — John Douard, Assistant Deputy Public Defender (Joseph E. Krakora, Public Defender). For respondent State — Joie Piderit, Assistant Prosecutor (Bruce J. Kaplan, Middlesex County Prosecutor). For amici curiae: Attorney General in A-0048-11 and A-1399-11 — Jeffrey S. Chiesa, Attorney General (Jennifer E. Kmieciak, Deputy Attorney General, on the brief); Association of Criminal Defense Lawyers of New Jersey in A-0048-11 and A-1399-11 — Pinilis Halpern (Jeffrey S. Mandel on the brief).