                                NOT FOR PUBLICATION WITHOUT THE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-0208-17T1

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

TYRONE JACKSON,

     Defendant-Appellant.
___________________________

                   Submitted October 31, 2018 – Decided November 30, 2018

                   Before Judges Fuentes and Accurso.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Somerset County, Indictment No. 13-04-
                   0220.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Marcia H. Blum, Assistant Deputy Public
                   Defender, of counsel and on the brief).

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

PER CURIAM
      Defendant Tyrone Jackson appeals from a seven-year discretionary

extended term sentence not requested by the State, but imposed by the judge

after defendant failed to appear for sentencing.      The law is clear that a

discretionary extended term for a persistent offender may not be imposed

absent application by the prosecutor. See State v. Thomas, 195 N.J. 431, 436

(2008). Furthermore, a sentence based entirely upon a defendant's failure to

appear for sentencing is illegal. See State v. Wilson, 206 N.J. Super. 182, 184

(App. Div. 1985). Accordingly, we reverse and remand for resentencing in

accordance with the plea agreement.

      Following his indictment on charges of second-degree aggravated

assault, N.J.S.A. 2C:12-1(b)(1) and third- and fourth-degree assault by auto,

N.J.S.A. 2C:12-1(c)(1) and (2), defendant pleaded guilty in August 2015 to the

two lesser charges in exchange for the State's agreement not to seek a

discretionary extended term, N.J.S.A. 2C:44-3(a), and to recommend five-year

sentences to be served concurrently in the event the convictions did not merge

for sentencing purposes. 1 Defendant's sentencing was delayed almost eight

months, at his request, to allow him to engage in in-patient drug treatment.


1
   Defendant was driving on a suspended license and reportedly under the
influence of heroin when he ran into the back of a motorcyclist, ejecting him
                                                                  (continued)
                                                                       A-0208-17T1
                                      2
      When the case was finally scheduled for sentencing in April 2016,

defendant failed to appear. A bench warrant was issued, and, in June 2017, he

turned himself in. At his sentencing a few days later, the State and defendant

asked the court to sentence defendant in accordance with the plea agreement,

noting he spent at least five months in in-patient drug treatment. Commenting

that defendant had been "in the wind" for a year, the trial judge refused,

stating:

                  Somebody, please, let's bring him out milk and
            cookies for turning himself in after being absent for
            two years.

                  The original plea agreement is five. He's going
            to get seven. He can withdraw his plea or he can
            accept the seven flat and we'll do a pretrial conference
            today and we'll give him a new trial date.




(continued)
off the bike and causing him serious injuries. Originally indicted on only the
two third- and fourth-degree charges, defendant's application to drug court was
denied by the prosecutor. The Law Division overturned the decision o n April
1, 2013. The State did not appeal. Instead, it represented the case to the
Grand Jury two weeks before defendant's scheduled plea hearing in drug court
on April 29, obtaining a superseding indictment, which added the second-
degree aggravated assault charge. That charge made defendant ineligible for a
drug court sentence. See N.J.S.A. 2C:35-14(b)(2); N.J.S.A. 2C:43-7.2(d)(4).
Defendant pleaded guilty after another judge, the one whose sentence we
review here, denied his motion to dismiss the superseding indictment.
Defendant has not appealed from that motion order and it is thus not before us.


                                                                       A-0208-17T1
                                      3
When the prosecutor objected because the victim "made it clear he does not

want to have to go through a trial on this," the judge replied:

                  Then I'll just sentence him to the seven. He has
            an obligation to show up. He doesn’t show up. He's
            bound by the plea agreement and . . . he's getting a
            seven.

When defense counsel protested that defendant "pled to a third[-]degree. So

the maximum is a five," and asked that the plea agreement be honored, the

judge responded:

                  Not happening . . . . [T]his guy is not going to
            thumb his nose at this court and just walk out with the
            same deal he had what — two years ago . . . . I'll
            vacate the plea agreement and he's back to a second
            degree and I'll give him a 10. He goes to trial[,] I'll
            give him a 10.

      After the court permitted a recess to allow the prosecutor and defense

counsel to confer, defense counsel announced defendant wished to go forward

with his plea and sentencing. The judge outlined the choices for defendant; he

could receive "a flat seven, no stip, on an extended term basis," or the court

could "give him the five do two and a half." After putting those alternatives

on the record, the judge asked defense counsel:        "what is your pleasure?"

Defense counsel responded that she and her client "understand that that is what

the court wishes to do." When the court asked whether defendant was "willing


                                                                      A-0208-17T1
                                       4
to accept and abide by it as opposed — as an alternative to my rejection of the

plea agreement," defense counsel responded affirmatively.

      After asking defendant whether he had had adequate time to confer with

his counsel "so that you understand the choices you are making this morning

and the consequences of those choices," the judge explained to defendant that

it was his intention "to reject the plea agreement and go forward with a pretrial

conference, which would reinstate the second[-]degree first count." The judge

continued the colloquy as follows:

                   THE COURT: Instead, my alternatives are with
            your permission and consent, to either sentence you to
            a five flat with two and a half stipulated as a period of
            parole ineligibility or seven flat.

                  Do you understand that?

                  DEFENDANT: Yes.

                   THE COURT: On a seven flat you are going to
            be eligible for parole in about 18 months. As opposed
            to a five do two and a half, you are eligible for parole
            after 30 months.

                  Do you understand that?

                  DEFENDANT: Yeah.

                  THE COURT: So I am going to give you the
            seven years flat, calling upon you to take
            responsibility for the two years you were absent. Is
            that what you would like me to do?

                                                                        A-0208-17T1
                                       5
                  DEFENDANT: Yes.

      The judge thereafter merged defendant's convictions for sentencing

purposes, found aggravating factors N.J.S.A. 2C:44-1(a)(3), (6) and (9) and no

mitigating factors, without explanation, and sentenced defendant to seven

years in State prison "in the exercise of the court's discretion to impose an

extended term of imprisonment." The judge also imposed appropriate fines

and penalties and ordered defendant to pay $2750 in restitution, $2500 for the

victim's unreimbursed or deductible medical expenses and $250 in loss of

personal property. The judge also imposed fines, penalties and periods of

license suspension for driving while suspended and a first offense of driving

under the influence.   Other Title 39 summonses issued to defendant were

dismissed in accordance with the plea agreement.

      After imposing sentence, the judge addressed defendant as follows:

                  Mr. Jackson, despite your disappointment that I
            am not going to sentence you to the five years
            originally negotiated, you should find comfort in the
            fact that your recklessness in operating this motor
            vehicle caused serious bodily injury to a police officer
            that was doing nothing other than doing his job.[2] So
            believe me that I wouldn't have had a hesitation for a
            New York minute or any reservation at all about drop

2
  Although the record is clear the victim was a police officer, nothing suggests
he was on-duty at the time of the accident.


                                                                       A-0208-17T1
                                      6
             kicking you into the New Jersey State Prison for 10
             years and on a second degree, if you are extended term
             eligible, I would have probably been inclined to bump
             that up to 15.

                   So you are walking out of here with a pretty
             good result considering the fact that you engendered
             the ire of this court by thumbing your nose at it for
             two years.

                   But that's the two years I am adding to this
             sentence. So you want to make sure you don't come
             back before me.

     Defendant appeals the sentence the court imposed, raising the following

arguments:

             POINT I

             THE     SEVEN-YEAR      DISCRETIONARY-
             EXTENDED TERM IS ILLEGAL AND MUST BE
             VACATED BECAUSE IT WAS IMPOSED
             WITHOUT   AN    APPLICATION   BY   THE
             PROSECUTOR, AND BECAUSE IT VIOLATES
             THE    FIVE-YEAR     MAXIMUM      TERM
             NEGOTIATED UNDER THE PLEA AGREEMENT.
             THE MATTER MUST BE REMANDED FOR A
             NEW SENTENCING HEARING AT WHICH THE
             COURT CONSIDERS WHAT SENTENCE TO
             IMPOSE WITHIN THE NEGOTIATED FIVE-YEAR
             MAXIMUM.

             A.    Discretionary-Extended Term May Only Be
                   Imposed if the State Applies for it, and the State
                   Did Not Apply for it.



                                                                        A-0208-17T1
                                       7
              B.   The Court Increased the Sentence Solely
                   Because Defendant Failed to Appear at
                   Sentencing Despite the Fact that the Plea
                   Agreement    Was     Not    Conditioned on
                   Defendant's Appearance at Sentencing.

              C.   A Sentence May Not Be Increased Solely
                   Because the Defendant Did Not Appear for a
                   Court Date.

              D.   The Matter Must Be Remanded for a New
                   Sentencing Hearing at Which Defendant Is
                   Sentenced Within the Negotiated Range.

                   1.    Additional reasons to preserve the plea.

                   2.    The matter must be remanded for a new
                         hearing at which the sentence is based on
                         statutory sentencing factors and relevant
                         mitigation is not overlooked.

                   3.    The matter must be remanded to a
                         different judge.

              POINT II

              THE MATTER MUST BE REMANDED FOR A
              HEARING ON DEFENDANT'S ABILITY TO PAY
              RESTITUTION.

      As review of the quoted excerpts from the transcript makes plain, this

sentence cannot stand. It has long been established that a sentencing judge has

no power to impose a discretionary extended term absent a request from the

prosecutor.    N.J.S.A. 2C:44-3(a); State v. Martin, 110 N.J. 10, 16 (1988).


                                                                      A-0208-17T1
                                      8
Nothing could be clearer. Here, not only did the prosecutor not request an

extended term, he explicitly promised defendant as part of the plea bargain that

he would not do so.

      The plea agreement did not provide for an increased sentence for

defendant's non-appearance at sentencing; a provision the State was free to

negotiate. See State v. Subin, 222 N.J. Super. 227, 238-39 (App. Div. 1988).

Although we do not suggest a court could not reject a plea without such a term

when faced with a defendant who has failed, without excuse, to appear for

sentencing, see R. 3:9-3(e); Subin, 222 N.J. Super. at 239, "the authority to

exercise judicial discretion is not an arbitrary power of the individual judge, to

be exercised when, and as, his caprice, or passion, or partiality may dictate, or

forsooth as his vindictiveness or his idiosyncrasies may inspire,"       State v.

Madan, 366 N.J. Super. 98, 109 (App. Div. 2004) (quoting Smith v. Smith, 17

N.J. Super. 128, 132 (App. Div. 1951)).

      In addition to the improperly imposed extended term, this sentence is

also illegal because based entirely upon the court's self-described "ire" at

defendant's failure to appear for sentencing. Wilson, 206 N.J. Super. at 184.

It would not appear to require repeating that "[t]he need for dispassionate,

evenhanded conduct is most acute in the sentencing phase of a criminal trial."


                                                                        A-0208-17T1
                                       9
State v. Tindell, 417 N.J. Super. 530, 571 (App. Div. 2011). Although we do

not condone defendant's failure to have appeared for sentencing, the judge

having permitted his feelings over what he perceived to be that personal

affront to overwhelm his application of the sentencing guidelines, we reverse

and remand for resentencing in accordance with the plea agreement.

      As we understand the sentencing judge has retired, the case is assigned

to the presiding criminal judge in the vicinage to carry out the terms of the

remand, which should also include an assessment of defendant's ability to pay

restitution. See State v. Newman, 132 N.J. 159, 171-73 (1993). We do not

retain jurisdiction.

      Reversed.




                                                                     A-0208-17T1
                                   10
