                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NOS. A-2477-14T3
                                                  A-2478-14T3

STATE OF NEW JERSEY,

     Plaintiff-Appellant,               APPROVED FOR PUBLICATION

v.                                         December 28, 2015

                                          APPELLATE DIVISION
MWANZA FITZPATRICK,

     Defendant-Respondent.
__________________________

STATE OF NEW JERSEY,

     Plaintiff-Appellant,

v.

KEEYAN BRISTER,

     Defendant-Respondent.
__________________________

         Argued September 30, 2015 – Decided December 28, 2015

         Before Judges Fuentes, Koblitz and Gilson.

         On appeal from Superior Court of New Jersey,
         Law Division, Middlesex County, Indictment
         Nos. 14-02-00175 (A-2477-14) and 14-05-00620
         (A-2478-14).

         Christopher   Dize, Assistant         Prosecutor,
         argued the cause for appellant        (Andrew C.
         Carey,    Middlesex   County          Prosecutor,
         attorney; Mr. Dize, of counsel        and on the
         briefs).
              Stephen P. Hunter, Assistant Deputy Public
              Defender, argued the cause for respondents
              (Joseph   E.   Krakora,   Public   Defender,
              attorney; Mr. Hunter, of counsel and on the
              briefs).

      The opinion of the court was delivered by

GILSON, J.S.C. (temporarily assigned).

      These appeals, consolidated for purposes of this opinion,

present the jurisdictional question of what is the time within

which   the    State   can      appeal   the     denial       of    a   drug    offender

restraining order sought in connection with a sentence.                         We hold

that the governing statute, N.J.S.A. 2C:35-5.7(k), requires such

appeals to be filed within ten days of the date of sentencing.

Our   holding    follows     from   a    reading        of    the   language     of    the

statute, the legislative purpose in enacting the statute, and

the relevant legislative history.                 Because the State failed to

file its notices of appeal in these matters within the ten-day

period, we dismiss both appeals for lack of jurisdiction.

                                         I.

      The   relevant    facts     and    procedural          histories    are    not    in

dispute and are established by the record.                          Defendants Mwanza

Fitzpatrick     and    Keeyan    Brister       were     separately       indicted      for

separate    incidents      of    alleged       second    and    third     degree      drug

offenses.       Both    defendants       applied        for    special    drug     court

probation pursuant to N.J.S.A. 2C:35-14, were found clinically




                                           2                                    A-2477-14T3
and legally eligible, and were recommended for acceptance into

the program.          Both defendants then pled guilty to third degree

distribution of heroin within 1000 feet of school property in

violations of N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a)(1).

       As     part    of    the       plea    agreements,        the       State    agreed      to

recommend that defendants be sentenced to five years of special

drug court probation as an alternative sentence to five years in

prison with thirty months of parole ineligibility.                               Because both

defendants       were      subject       to    mandatory        extended         terms,     those

alternative          sentences        were     in      accordance      with      the     Brimage

Guidelines1 and N.J.S.A. 2C:43-6(f).

       At sentencing, the State for the first time informed the

court and counsel that the State would request a drug offender

restraining      order          (DORO)   in        accordance       with    N.J.S.A.       2C:35-

5.7(h).       The State had not stated in the plea agreements that a

DORO would be a condition of the sentences.                           Defendants objected

and the judge adjourned sentencing and directed the State and

defense     counsel        to    brief       the    issue.      Thereafter,         defendants

moved    to    preclude         the    imposition        of   DOROs,       and     all    parties

submitted briefs and certifications.

       On December 2, 2014, the trial court heard oral arguments

and    denied    the       State's       application          for    DOROs       against     both

1
    State v. Brimage, 153 N.J. 1 (1998).



                                                   3                                     A-2477-14T3
defendants.       That same day, the trial court sentenced defendants

to five years of special drug court probation as an alternative

sentence to a prison term.          On December 9, 2014, the trial court

entered two orders granting defendants' motions to preclude the

imposition of DOROs.           On December 23, 2014, the State filed

notices to appeal the denials of the DOROs.

    The State seeks to appeal the trial court's denial of the

DOROs arguing that the trial court erred by using the wrong

standard.     Defendants counter that the State filed its notices

of appeal late and that this court lacks jurisdiction to hear

either appeal.          Defendants also argue, in the alternative, that

(1) the Drug Offender Restraining Order Act is unconstitutional,

(2) the imposition of DOROs would violate the plea agreements,

and (3) the trial court properly denied the applications for

DOROs   using     the    correct   legal    standard.     Because     the   State

failed to file its notices of appeal within the governing ten-

day period, we dismiss both appeals for lack of jurisdiction,

and we do not reach the substance of any party's arguments.

                                       II.

    To place the jurisdictional issue in context, we briefly

describe    the    Drug     Offender   Restraining      Order   Act   of    1999,

N.J.S.A. 2C:35-5.4 to -5.10 (the Act).              The Act is designed to

enhance the quality of life and protect the public in areas




                                        4                               A-2477-14T3
plagued by illegal drug activity.                  N.J.S.A. 2C:35-5.5(b).           It

fulfills    its     purpose      by   restraining       drug     offenders        from

returning to locations where they had engaged in illegal drug

manufacturing      or    distribution        activities.         N.J.S.A.    2C:35-

5.5(d).    Accordingly, the Act established procedures for issuing

restraining orders against persons charged with or convicted of

certain    drug-related        offenses.        N.J.S.A.       2C:35-5.6,      -5.7.

Specifically,      the   Act     empowers    law    enforcement      officers     and

prosecutors to apply for a restraining order at two different

times: (1) when the person, including a juvenile, is charged

with drug offenses, N.J.S.A. 2C:35-5.7(a)-(d), and (2) when a

drug offender is convicted or adjudicated delinquent, N.J.S.A.

2C:35-5.7(h).       The Act also spells out the grounds on which

defendants can apply for an exception to such restraining orders

and the basis for the court to grant such exceptions.                       N.J.S.A.

2C:35-5.7(e).      In that regard, the Act provides that the "court

may   forego   issuing     a     restraining    order    .   .   .   only    if    the

defendant establishes" certain legitimate needs to be in the

place from which the drug offender is sought to be restrained.

Ibid.      Those restriction exemptions are limited and must be

established       "by    clear     and   convincing        evidence."          Ibid.

Furthermore, the Act gives the court the discretion to craft




                                         5                                  A-2477-14T3
"modifications to permit the person to enter the area during

specified times for specified purposes."                    N.J.S.A. 2C:35-5.7(f).

      The Act also provides procedures for a defendant to modify

a DORO, and for the State to appeal the denial of a DORO sought

in connection with the sentencing of a drug offender.                          N.J.S.A.

2C:35-5.7(k).

                                            III.

      The question of when the State can appeal the denial of a

DORO sought in connection with the sentencing of a drug offender

is an issue of first impression.                   The language authorizing such

appeals is set forth in subsection k of N.J.S.A. 2C:35-5.7: "If

the   court    does   not   issue       a    restraining      order,     the   sentence

imposed   by    the   court   for       a    criminal       offense   as   defined       in

subsection b. of this section shall not become final for ten

days in order to permit the appeal of the court's findings by

the prosecution."        A plain reading of this language limits the

State's   right   to     appeal    to       ten    days    from   imposition     of     the

sentence.       See   State   v.    Olivero,         221     N.J.   632,   639    (2015)

("[T]he goal of statutory interpretation is to ascertain and

effectuate     the      Legislature's            intent."     (quoting     Murray        v.

Plainfield     Rescue    Squad,     210      N.J.    581,     592   (2012)));      In    re

Registrant N.B., 222 N.J. 87, 98 (2015) ("[T]he best indicator

of that intent is the plain language chosen by the Legislature."




                                             6                                   A-2477-14T3
(alteration in original) (quoting State v. Gandhi, 201 N.J. 161,

176 (2010))).

    The State argues that the phrase "a criminal offense as

defined in subsection b. of this section" limits N.J.S.A. 2C:35-

5.7(k) to apply only to appeals pertaining to N.J.S.A. 2C:35-

5.7(b).    Thus, the State argues the ten-day period in subsection

k does not apply to an appeal filed in connection with the

denial    of    a    DORO     sought    under    subsection    h,    which    is   the

provision authorizing a DORO after a conviction.                      See N.J.S.A.

2C:35-5.7(h).         There are several flaws with the State's proposed

interpretation.

    First,          such   an   interpretation      is   inconsistent      with    the

language       of    the    Act.       Subsection   b    of   N.J.S.A.     2C:35-5.7

addresses the procedure for the State to seek a DORO after a

person     is       charged     with     a   drug   offense     on     a     summons.

Consequently, subsection b does not deal with a DORO sought

after conviction.             Subsection b, moreover, does not define "a

criminal offense."            That definition is found in N.J.S.A. 2C:35-

5.6(c).

    Second, if subsection k does not apply, then the State

would have no right to appeal at all.                    "Sentencing appeals by

the State implicate the prohibitions against multiple punishment

incorporated in the double jeopardy provisions of the Federal




                                             7                               A-2477-14T3
and State Constitutions."               State v. Johnson, 376 N.J. Super.

163, 171 (App. Div.) (citing State v. Roth, 95 N.J. 334, 342-43

(1984)), certif. denied, 183 N.J. 592 (2005).                   Consequently, the

State can appeal the sentence of a criminal defendant only in

two circumstances: (1) if a statute expressly authorizes such an

appeal, and (2) if the sentence is illegal.                      Roth, supra, 95

N.J. at 342-43.         In Roth, our Supreme Court traced the history

of the government's right to appeal criminal sentences, and held

that because of constitutional double jeopardy concerns, "the

government     cannot     take   an     appeal    in    a   criminal   case    absent

express statutory authority."              Id. at 341-43; see also United

States v. DiFrancesco, 449 U.S. 117, 131-32, 101 S. Ct. 426,

434-35,   66   L.   Ed.    2d    328,    342-43       (1980)   (holding   that      the

government could appeal a criminal sentence without violating

the Double Jeopardy Clause when Congress expressly authorized

such an appeal); State v. Veney, 327 N.J. Super. 458, 461 (App.

Div. 2000) ("[R]estrictions of the State's right to appeal rest

upon   the   principle      that      appeals    of    sentences   implicate        the

Double Jeopardy Clauses of the federal and state constitutions

. . . ."); R. 2:3-1 (identifying the limited grounds when the

State can appeal in a criminal action).

       Here we are not dealing with an illegal sentence.                  Thus, we

return to the language of subsection k, which expressly allows




                                          8                                   A-2477-14T3
the State to appeal.               Without the phrase "for a criminal offense

as defined in subsection b. of this section," the meaning of the

language       of    subsection         k   is   clear:        the       ten-day   restriction

applies to the denial of a DORO sought in connection with a

sentence.           Accordingly, the question is what does the phrase

mean.      The       only    logical        interpretation            is    that       the    phrase

references the provision of the Act that defines a criminal

offense    covered          by    the    Act.        As    already         pointed       out,      the

definition of the crimes covered by the Act is found in N.J.S.A.

2C:35-5.6(c).          That interpretation is also consistent with the

plain    reading       of        the    phrase    as      it       references      a    "criminal

offense."        Such an interpretation is also consistent with the

intent    of    the    statute.             Subsection         k    of    N.J.S.A.      2C:35-5.7

clearly authorizes the State to appeal, within ten days, the

denial of a DORO sought in connection with the sentence of a

drug offender.

    The        Legislature         clearly       wanted        to    give    prosecutors           the

right to appeal.             Indeed, in the Senate Judiciary Committee's

statement to the original bill, the Committee noted: "The bill

also expressly authorizes the prosecuting agency to appeal any

determination by a court not to issue a 'stay-away' order."

Senate Judiciary Comm., Statement to S. 1697, 208th Leg., 2d

Sess., at 1-2 (Feb. 18, 1999).                       Accordingly, our interpretation




                                                 9                                           A-2477-14T3
of the Act is consistent with the State's right to appeal.                                That

appeal, however, must be filed within ten days to avoid double

jeopardy concerns.

    Counsel         for    defendants        suggests      that      the     reference       to

subsection      b    is   in    fact    a    reference     to       N.J.S.A.      2C:35-5.6.

Counsel    arrives        at   that    interpretation         by     pointing      out    that

subsection b of N.J.S.A. 2C:35-5.7 has within it a reference to

subsection b of N.J.S.A. 2C:35-5.6.                      See N.J.S.A. 2C:35-5.7(b)

("[T]he court . . . shall . . . issue an order prohibiting the

person    from      entering     any     place     defined      by    subsection        b.    of

section 3 of P.L.1999, c. 334 ([N.J.S.A. 2C:35-5.6]) . . . .").

The reference to subsection b of N.J.S.A. 2C:35-5.6 is to the

definition of "place."                 Accordingly, we again                return to the

plain    and     logical       meaning      of     the   Act,       which    is    that      the

reference      to    "a    criminal         offense"     is     a    reference       to      the

definition of the crimes covered by the Act found in N.J.S.A.

2C:35-5.6(c).

    Our        interpretation          of     N.J.S.A.        2C:35-5.7(k)         is     also

consistent with the legislative history of the Act.                               As already

noted, the Act has always provided the State with a ten-day

right to appeal the denial of a DORO at sentencing.                                  See L.

1999, c. 334, § 4.             The Act was amended in 2001, 2004, 2006 and

2011.     See L. 2001, c. 365, § 2; L. 2004, c. 130, § 14; L. 2006,




                                              10                                    A-2477-14T3
c. 47, § 27; L. 2011, c. 44, § 1.                     All of those amendments

included   the   relevant    language       concerning     an   appeal      of    the

denial of a DORO.          See ibid.        The 2001 amendment moved the

language concerning the time to appeal from subsection h to a

new subsection k.     L. 2001, c. 365, § 2 (codified as amended at

N.J.S.A.   2C:35-5.7(k)).       The    2001      amendment      also    moved     the

original   language   in    subsection       b   to    subsection      h.      Ibid.

(codified as amended at N.J.S.A 2C:35-5.7(h)).                      Further, the

2001 amendment added new provisions to address the procedures

for applying for a restraining order when the person was first

charged with a drug offense.                Ibid. (codified as amended at

N.J.S.A.   2C:35-5.7(a)-(d)).         The     amendment,     however,       did   not

update the language to incorporate the subsection change within

the paragraph regarding the State's right to appeal.                           Ibid.

(codified as amended at N.J.S.A. 2C:35-5.7(k)).                        Thus, while

N.J.S.A.   2C:35-5.7(k)     still   refers       to    subsection      b,   we    are

satisfied the Legislature intended that the statute be edited in

conformity with the other revisions to refer to subsection h.

    Finally, we address whether the ten-day period should be

strictly enforced.     The precedent concerning an analogous ten-

day appeal period from a criminal sentence, coupled with double

jeopardy principles, mandates strict enforcement.                      Pursuant to

N.J.S.A. 2C:44-1(f)(2), the State is authorized to appeal the




                                       11                                   A-2477-14T3
downgrade or non-custodial sentence regarding convictions for

first or second degree crimes.                  The language of N.J.S.A. 2C:44-

1(f)(2)      authorizing         the    State's       right      of    appeal    is     nearly

identical to the language in the DORO Act.                               Compare N.J.S.A.

2C:35-5.7(k) ("[T]he sentence . . . shall not become final for

ten days in order to permit the appeal of the court's findings

by    the    prosecution.")            with    N.J.S.A.         2C:44-1(f)(2)         ("[S]uch

sentence shall not become final for 10 days in order to permit

the    appeal       of    such    sentence          by    the     prosecution.").            In

construing         that    language,      our       Supreme      Court    has    held     that

"[s]trict compliance with the terms of the statute is required;

failure to perfect an appeal within the ten-day period will

result in dismissal of the State's appeal."                             State v. Sanders,

107 N.J. 609, 616 (1987); see also State v. Gould, 352 N.J.

Super.      313,    318-19    (App.      Div.       2002)   (dismissing         the   State's

appeal of a probationary sentence that was not filed within ten

days as mandated by N.J.S.A. 2C:44-1(f)(2)).

      Here, both defendants were sentenced on December 2, 2014.

The State filed its notices of appeal on December 23, 2014.

Thus, both notices were filed beyond the ten-day period.

      The notices of appeal filed by the State reference the

December      9,    2014     orders.          Those      orders       granted   defendants'

cross-motions to preclude the imposition of a DORO.                                   Because




                                               12                                     A-2477-14T3
double jeopardy would otherwise begin to attach at the time of

sentencing, N.J.S.A. 2C:35-5.7(k) specifically provides that the

sentence imposed by the court "shall not become final for ten

days in order to permit the appeal of the court's findings by

the prosecution."       Here, the State's time to appeal began to run

the day after the sentence; that is, December 3, 2014.                       See

Johnson, supra, 376 N.J. Super. at 173 ("[T]he ten-day period

commences on the day after sentence is pronounced . . . .").

      The State also argues that its notices were actually mailed

on December 17, 2014.        The mailing of a notice of appeal is not

the controlling date; rather, the controlling date is the date

of filing.        See State v. One 1986 Subaru, 230 N.J. Super. 451,

458 (App. Div. 1989), aff’d in part, rev’d in part, 120 N.J. 310

(1990); Pressler & Verniero, Current N.J. Court Rules, comment 2

on   R.   1:5-6    (2016)   ("[F]iling    can   only   be   effected   by    the

receipt of the filed paper by the designated office.").                Indeed,

the State conceded this point at oral argument.

      In summary, because the DORO Act requires an appeal from

the denial of a DORO sought at sentencing to be filed within ten

days, and because the State did not file within that time, both

appeals must be dismissed for lack of jurisdiction.

      Dismissed.




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