                                NOT FOR PUBLICATION WITHOUT THE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:


                                                                          A-1913-18T2
                                       2
        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).
                                                                             A-1913-18T2
                                          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


                                                                           A-1913-18T2
                                        4
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
                                         5
              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.
                                                                         A-1913-18T2
                                        6
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.
                                                                           A-1913-18T2
                                        7
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.




                                                                        A-1913-18T2
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