                                NOT FOR PUBLICATION WITHOUT THE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-2805-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RAHSJAHN COURTNEY,

     Defendant-Appellant.
________________________

                    Submitted March 19, 2019 – Decided April 3, 2019

                    Before Judges Gilson and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Somerset County, Indictment No. 15-06-
                    0324.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Daniel S. Rockoff, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Michael H. Robertson, Somerset County Prosecutor,
                    attorney for respondent (Paul H. Heinzel, Assistant
                    Prosecutor, of counsel and on the brief).

                    Appellant filed a pro se supplemental brief.
PER CURIAM

      Defendant Rahsjahn Courtney appeals from his sentence following his

2017 conviction for first-degree possession of heroin. Defendant, who pled

guilty, argues the sentencing court improperly rejected his request for

imposition of a lesser sentence than the one recommended by the State because

the court mistakenly determined it was obligated to impose the recommended

sentence. We disagree and affirm.

                                        I.

      Defendant was charged in an indictment with a single count of first-degree

possession of heroin with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1)

and (b)(1). The charges were based on the seizure of approximately 7000 folds

of heroin, some of which were laced with fentanyl, from defendant's vehicle.

      In 2010, defendant was convicted of third-degree possession of cocaine

with the intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1), for which he

successfully completed three years of probation. As a result, if defendant was

convicted of the possession with intent to distribute heroin charge, he was

eligible, upon application by the State, to a mandatory extended term sentence

and minimum period of parole ineligibility under N.J.S.A. 2C:43-6(f).




                                                                          A-2805-17T4
                                        2
      Defendant negotiated a plea agreement with the State. In exchange for

pleading guilty to the first-degree possession and distribution charge, the State

agreed   to   recommend     a   fourteen-year    custodial   sentence      with    a

sixty-three-month period of parole ineligibility. The State also agreed not to

request a mandatory extended term sentence under N.J.S.A. 2C:43-6(f), which

would have exposed defendant to a sentence of twenty years to life and a period

of parole ineligibility of between one-third and one-half the base term.

      It is clear from the record that defendant understood that his conviction

for first-degree possession with intent to distribute exposed him to a mandatory

extended term sentence and period of parole ineligibility under N.J.S.A.

2C:43-6(f). For example, before he entered his plea, the State prepared a Plea

Negotiation Worksheet in accordance with the Attorney General guidelines,

issued pursuant to the Supreme Court's decision in State v. Brimage, 153 N.J. 1

(1998). The worksheet showed defendant's "[m]ost serious Brimage-eligible

offense" was for first-degree distribution, and defendant's conviction subjected

him to a mandatory extended term sentence under N.J.S.A. 2C:43-6(f).

      In addition, defendant's plea form expressly provided that the "State and

defendant agreed that defendant will be sentenced to [fourteen] years in [New

Jersey State Prison] with [sixty-three] months to be served without parole." It


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                                       3
further stated that the "plea agreement is based on the State's agreement not to

file [for] an [e]xtended [t]erm pursuant to N.J.S.A. 2C:43-6(f)."           In a

supplemental plea form "for non-negotiated pleas" executed by defendant, the

State, and the sentencing judge, defendant acknowledged that the court would

sentence him as stated in the plea form. 1

      Further, consistent with the Plea Negotiation Worksheet, the State set

forth its plea offer in a written communication to defendant. The State tendered

a graduated plea offer with an initial offer (which expired after the arraignment

status conference) of twenty years with a fifty-four-month parole disqualifier;

followed by a second offer (which expired two weeks after the conference) of

twenty-two years with a sixty-month parole disqualifier; and a third offer (which

expired at the pre-trial conference) of twenty-four years with a parole

ineligibility period of sixty-three months. This third offer was still in effect

when the State agreed to a ten-year reduction in defendant's base term to

fourteen years with a sixty-three-month parole disqualifier.




1
   Despite the court using the "non-negotiated" plea form, the parties do not
dispute that defendant entered a negotiated plea as confirmed by the
aforementioned record and a March 14, 2018 Rule 2:5-1(b) supplemental
statement submitted by the trial judge.
                                                                         A-2805-17T4
                                        4
      Finally, during the plea proceeding, the court confirmed with the State and

defendant the terms of the negotiated plea as evidenced by the following

colloquy:

            Court:     And so you understand what the plea
            recommended sentence is. It is going to be [fourteen]
            years in New Jersey State Prison. You are going to get
            – to be sentenced to a [sixty-three-month] parole
            stipulation, meaning five years and three months before
            you are eligible for parole. Do you understand that?

            Defendant: Yes.

            Court: And that plea agreement is in exchange for the
            State not seeking an extended term, which would have
            put you to [twenty] years to life. Do you understand
            that?

            Defendant: Yes

            Court: And I have indicated to counsel and I have
            indicated on the record and I have indicated by signing
            this form that the court will impose and go along with
            that agreement, [fourteen] years with [a] [sixty-three]
            month parole stipulation. Do you understand that?

            Defendant: Yes.

      At sentencing, defense counsel, while acknowledging the parties' plea

agreement, nevertheless requested a reduced sentence, stating, "well an

agreement is an agreement – [but] if the Prosecutor agrees that [defendant] was

just a mule, [then], perhaps, your Honor might consider a lower sentence." After


                                                                         A-2805-17T4
                                       5
considering defendant's request, and the aggravating and mitigating factors, the

court sentenced defendant consistent with the plea agreement. This appeal

followed.

      Defendant raises the following issue on appeal:2

            BECAUSE     THE    SENTENCING   COURT
            ERRONEOUSLY PRESUMED THAT A PLEA
            AGREEMENT       FORECLOSED    JUDICIAL
            IMPOSITION OF A LOWER SENTENCE THAN
            RECOMMENDED BY THE STATE, THIS MATTER
            REQUIRES A REMAND FOR RESENTENCING

                                       II.

      Before we address defendant's argument, we discuss the relevant

principles governing sentencing for offenses under the Comprehensive Drug

Reform Act of 1987 (CDRA), N.J.S.A. 2C:35-1 to 36A-1. The Legislature

enacted the CDRA to "provide for the strict punishment, deterrence[,] and

incapacitation of the most culpable and dangerous drug offenders." Brimage,

153 N.J. at 8 (quoting N.J.S.A. 2C:35-1.1). Accordingly, the CDRA provides

for mandatory sentences and periods of parole ineligibility for certain offenses.

Ibid.; see, e.g., N.J.S.A. 2C:43-6(f); see also State v. Bridges, 252 N.J. Super.



2
  In a pro se supplemental submission, defendant asserts that in considering the
aggravating and mitigating factors, the sentencing court incorrectly noted that
his previous conviction was for possession of heroin, rather than cocaine.
                                                                         A-2805-17T4
                                       6
286, 291 (App. Div. 1991) (listing the CDRA provisions that establish ordinary

and extended term sentences and periods of parole ineligibility).

        However, the CDRA provides an exception to the imposition of a

mandatory sentence and period of parole ineligibility when the parties negotiate

a plea. In that circumstance, pursuant to N.J.S.A. 2C:35-12,3 a prosecutor is

permitted to "waive the minimum mandatory sentence specified for any offense

under the CDRA." Brimage, 153 N.J. at 3. As a result, a defendant accused of

a crime under the CDRA may be relieved of a mandatory sentence and period




3
    N.J.S.A. 2C:35-12 provides in pertinent part:
              Whenever an offense defined in this chapter specifies a
              mandatory sentence of imprisonment which includes a
              minimum term during which the defendant shall be
              ineligible for parole, [or] a mandatory extended term
              which includes a period of parole ineligibility, . . . the
              court upon conviction shall impose the mandatory
              sentence . . . unless the defendant has pleaded guilty
              pursuant to a negotiated agreement . . . which provides
              for a lesser sentence, [or] period of parole ineligibility
              . . . . The negotiated plea . . . agreement may provide
              for a specified term of imprisonment within the range
              of ordinary or extended sentences authorized by law,
              [or] a specified period of parole ineligibility . . . . In
              that event, the court at sentencing shall not impose a
              lesser term of imprisonment, [or] lesser period of parole
              ineligibility . . . than that expressly provided for under
              the terms of the plea or post-conviction agreement.
                                                                           A-2805-17T4
                                          7
of parole ineligibility. State v. Thomas, 253 N.J. Super. 368, 373 (App. Div.

1992).

      "[T]he purpose of N.J.S.A. 2C:35-12 is to permit the prosecutor to make

an agreement 'which provides for a lesser sentence or [lesser] period of parole

ineligibility' within the 'range of ordinary or extended sentences authorized by

law' for violating the [CDRA]." Bridges, 252 N.J. Super. at 290-91 (second

alteration in original) (quoting N.J.S.A. 2C:35-12). A negotiated waiver of the

CDRA's mandatory sentencing requirements provides "incentives for defendants

to cooperate with law enforcement authorities," "encourage[s] plea bargaining,"

and promotes "the prompt disposition of drug-related criminal charges and . . .

imposition of punishment." State v. Thomas, 392 N.J. Super. 169, 178 (App.

Div. 2007) (citing Brimage, 153 N.J. at 9).

      The Attorney General guidelines, mandated by our Supreme Court in

Brimage, govern plea agreements under N.J.S.A. 2C:35-12. Brimage, 153 N.J.

at 24-25; see Revised Attorney General Guidelines for Negotiating Cases Under

N.J.S.A. 2C:35-12 (July 15, 2004). The guidelines provide uniform standards

for plea offers for CDRA offenses, and aim to reduce the occurrence of

inconsistency in sentencing. Brimage, 153 N.J. at 13. Thus, N.J.S.A. 2C:35-12




                                                                        A-2805-17T4
                                       8
negotiated plea agreements must be made in accordance with the Brimage

guidelines. Id. at 24-25.

      Under the plain language of the statute, a court's sentencing discretion is

limited where a plea agreement recommends a custodial sentence or minimum

period of parole ineligibility less than otherwise mandated by the CDRA. "[A]

trial judge who accepts a plea agreement in which the State recommends a

sentence less severe than the sentence mandated by the [CDRA] may not impose

an even lesser sentence." Thomas, 253 N.J. Super. at 373; see also Brimage,

153 N.J. at 9 ("N.J.S.A. 2C:35-12 requires the sentencing court to enforce all

agreements reached by the prosecutor and a defendant under that section and

prohibits the court from imposing a lesser term of imprisonment than that

specified   in   the   agreement").     "However,    unless   the   prosecutor's

recommendation is for 'a lesser sentence or period of parole ineligibility' than

the [CDRA] mandates, [N.J.S.A. 2C:35-12] does not limit the judge's sentencing

discretion to accepting or rejecting the recommendation." Thomas, 253 N.J.

Super. at 374.

                                      III.

      Here, defendant argues the sentencing court improperly rejected his

request for imposition of a lesser sentence because it mistakenly determined


                                                                         A-2805-17T4
                                       9
N.J.S.A. 2C:35-12 required the court to impose the negotiated sentence. Relying

on State v. Warren, 115 N.J. 433, 442 (1989), defendant contends that "[a]

sentencing court always retains sentencing discretion to impose any lesser legal

sentence." Defendant also maintains that because the State agreed not to move

for an extended term under N.J.S.A. 2C:43-6(f), he was not subject to a

mandatory CDRA sentence, and therefore, the court's discretion to impose a

lesser term was not limited pursuant to N.J.S.A. 2C:35-12, because the

fourteen-year prison term was not lesser than the ordinary sentencing range of

ten to twenty years. We disagree.

      N.J.S.A. 2C:35-12 applies "[w]henever an offense defined in [the CDRA]

specifies a mandatory sentence of imprisonment . . . [or] period of parole

ineligibility . . . ." "Words and phrases shall be read and construed with their

context" and "be given their generally accepted meaning, according to the

approved usage of the language," "unless inconsistent with the manifest intent

of the legislature or unless another or different meaning is expressly indicated."

N.J.S.A. 1:1-1. "'Specify' means to name in a specific or explicit manner; to

state precisely or in detail, to point out, to particularize, or to designate b y words

one thing from another." Carteret Properties v. Variety Donuts, Inc., 49 N.J.

116, 124 (1967).


                                                                               A-2805-17T4
                                         10
      N.J.S.A. 2C:43-6(f), is included as a part of the CDRA, State v. Lagares,

127 N.J. 23, 35 (1992), and specifically identifies the CDRA offenses which are

subject to the imposition of mandatory sentences and periods of parole

ineligibility upon the prosecutor's request. See State v. Patterson, 435 N.J.

Super. 498, 516 (App. Div. 2014) (discussing the "list of offenses eligible for a

mandatory extended term" in N.J.S.A. 2C:43-6(f)).         Specifically, N.J.S.A.

2C:43-6(f) provides that where a defendant has a prior conviction for possession

of CDS and is convicted of a second offense, the court "shall upon application

of the prosecuting attorney be sentenced . . . to an extended term . . . ,

notwithstanding that extended terms are ordinarily discretionary with the court."

Additionally, the statute requires the term of imprisonment, "except as may be

provided in N.J.S.A. 2C:35-12," to include the imposition of a minimum term,

"fixed at, or between, one-third and one-half of the sentence imposed . . . or

three years, whichever is greater . . . ." N.J.S.A. 2C:43-6(f). As such, we are

satisfied that defendant pleaded guilty to an offense for which the CDRA

specifies a mandatory extended term and parole ineligibility period.          See

N.J.S.A. 2C:35-12 and N.J.S.A. 2C:43-6(f).

      The plain language of N.J.S.A. 2C:35-12 does not require the State to

formally move for the imposition of a mandatory extended term sentence and


                                                                         A-2805-17T4
                                      11
parole ineligibility period, a request it would otherwise be required to make

under N.J.S.A. 2C:43-6(f). Rather, the statute applies only where the State and

a defendant enter into a plea agreement involving an offense for which the

CDRA specifies a mandatory sentence or period of parole ineligibility. As

discussed, N.J.S.A. 2C:43-6(f) specifies both a mandatory extended term

sentence and parole ineligibility period for first-degree possession of CDS.

      Therefore, we reject defendant's assertion that he was not subject to

N.J.S.A. 2C:43-6(f)'s mandatory sentencing requirements. Pursuant to N.J.S.A.

2C:35-12, the State is expressly permitted to negotiate away its right to require

imposition of mandatory sentences. The statute permits the State to waive

mandatory sentences for CDRA offenses in order to incentivize drug offenders'

cooperation with law enforcement and to allow for the efficient disposition of

CDRA cases. See Thomas, 392 N.J. Super. at 178; Bridges, 252 N.J. Super. at

290-91. N.J.S.A. 2C:35-12 was not rendered inapplicable simply because the

State agreed not to request the imposition of an extended term under N.J.S.A.

2C:43-6(f).

      As we have concluded N.J.S.A. 2C:35-12 applies, we must next consider

whether the court properly sentenced defendant in accordance with the statute's

requirements. Pursuant to N.J.S.A. 2C:43-6(f), the mandatory extended term


                                                                         A-2805-17T4
                                      12
sentence specified for defendant's conviction for first-degree possession offense

is from twenty years to life imprisonment. See N.J.S.A. 2C:43-7(a)(2) and -7(c).

Additionally, the mandatory period of parole ineligibility is between eighty

months and, for a sentence of life imprisonment, twenty-five years. N.J.S.A.

2C:43-7(c). Defendant's plea agreement provided for a lesser custodial sentence

of fourteen years and therefore, the court was required to impose the

fourteen-year sentence pursuant to the plea agreement. N.J.S.A. 2C:35-12; see

also Thomas, 253 N.J. Super. at 373 ("A trial judge who accepts a plea

agreement in which the State recommends a sentence less severe than the

sentence mandated by the act may not impose an even lesser sentence.").

      To the extent not specifically addressed, defendant's remaining arguments

are without sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2).

      Affirmed.




                                                                         A-2805-17T4
                                      13
