STATE OF NEW JERSEY v. SHAUNE CHERRY (2011)

Defendant Shaune Cherry pled guilty to third degree possession with intent to distribute a controlled dangerous substance (CDS), cocaine, within 1,000 feet of school property, N.J.S.A. 2C:35-7, for which he was sentenced to five years imprisonment;  and second degree certain persons not to have weapons, N.J.S.A. 2C:39-7, for which he was sentenced to a concurrent five-year term of imprisonment with five years of parole ineligibility.   Defendant contends, and the State concedes, that because defendant had not been convicted of an offense that would have disqualified him from possessing a weapon under N.J.S.A. 2C:39-7, his plea and sentence on the weapons offense must be vacated.   The parties disagree about whether the plea to the CDS offense also must be vacated.   We conclude that the entire plea agreement must be vacated.   Accordingly, we reverse and remand.

I

On June 27, 2008, defendant pled guilty to two counts of an indictment:  third degree possession with intent to distribute a CDS within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count five);  and second degree certain persons not to have weapons, N.J.S.A. 2C:39-7 (count nine).   When the plea hearing began, defense counsel stated:

Mr. Cherry's prepared to enter guilty pleas to ․ count nine and count five.   One is possession of a weapon by a convicted person;  the other is possession of CDS with intent to distribute within a school zone․  In return, the Prosecutor's agreed to recommend a five-year New Jersey State prison sentence, with a five-year period of parole ineligibility, concurrent on both counts, credits for time already served.1

The prosecutor confirmed the plea agreement.   When questioned by the court, defendant acknowledged that he was pleading guilty because he was guilty, he faced up to fifteen years in state prison, and the State agreed to recommend a five-year term with a five-year period of parole ineligibility on the weapons offense.   To establish the factual basis for his plea to the weapons offense, defendant admitted that he possessed a .25 caliber handgun without a permit on the date of his arrest.   When asked by the court if he had previously been convicted of possession of a CDS with intent to distribute, he answered in the affirmative.   He informed the court he was convicted of that offense “[b]ack in like 2000.”   Contrary to those representations, defendant was not convicted of possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5, but instead was convicted of distributing, possessing, or dispensing a CDS within 500 feet of a public housing authority, N.J.S.A. 2C:35-7.1, an offense that does not disqualify a person from possessing a weapon under N.J.S.A. 2C:39-7.

On March 13, 2009, the judge sentenced defendant consistent with the plea agreement to five years imprisonment on the CDS offense, a concurrent five-year term of imprisonment with five years of parole ineligibility on the weapons offense, and imposed the requisite fines and penalties.   The court dismissed the remaining counts of the indictment.   On July 22, 2009, defendant appealed, raising the following issue:

DEFENDANT'S PRIOR CONVICTIONS FAILED TO SERVE AS A BASIS FOR THE CHARGE OF CERTAIN PERSONS NOT TO HAVE WEAPONS.   CONSEQUENTLY, THE SENTENCE FOR THAT CHARGE WAS ILLEGAL AND MUST BE REVERSED.

On June 8, 2010, defendant's appeal came before us on the excessive sentencing calendar and we transferred the appeal to the plenary calendar.

II

Defendant contends that his sentence on the weapons offense should be vacated, but his sentence on the CDS offense should not.   The State counters that the plea agreement should be vacated in its entirety and the matter remanded for further plea negotiations or a trial.

“[A] defendant who appeals his substantive conviction along with the corresponding sentence has no legitimate expectation of finality in either the underlying conviction or the corresponding sentence.”  State v. Haliski, 140 N.J. 1, 21 (1995).  “Many courts have recognized that when a defendant challenges the imposition of one or more sentences and demands that the sentence be vacated, a reviewing court has the power to vacate other sentences imposed by the same judgment that are interdependent with the challenged sentences.”  State v. Rodriguez, 97 N.J. 263, 274-275 (1984).  “[T]he essential rationale of Rodriguez extends to a case ․ in which a defendant successfully challenges his sentence on appeal and the case is remanded for resentencing.”  State v. Espino, 264 N.J.Super. 62, 68 (App.Div.1993).   “[I]f a defendant prevails on appeal, an increased term for a particular offense may be imposed under some circumstances without violating due process or double jeopardy guarantees.”  Id. at 67.   A defendant has no right to selectively enforce a plea agreement.   See State v. Reardon, 337 N.J.Super. 324, 326 (App.Div.2001).

Here, both defendant and the State had the reasonable expectation that defendant would be ineligible for parole for five years.   The State's reasonable expectation based on the explicit condition of the plea agreement has been nullified.  “Consequently, to permit the reasonable expectation of both the defendant and the State to be met, the parties must be returned to the status quo ante.”  State v. Roddy, 210 N.J.Super. 62, 66 (App.Div.1986).   More significantly, if we were merely to vacate defendant's conviction and sentence for the weapons offense, “the penal result would be fortuitous and wholly unrelated to the legitimate factors that courts are adjured to follow in dispensing appropriate criminal punishment.”   Rodriguez, supra, 97 N.J. at 276.   This is particularly so with respect to defendant's possession of a CDS with intent to distribute within a school zone.   See State v. Brimage 153 N.J. 1, 8 (1998) (noting the Legislature's intention to “provide for the strict punishment, deterrence and incapacitation of the most culpable and dangerous drug offenders”).

Defendant also contends that the State made a unilateral mistake in arriving at the plea agreement on the weapons charge, he was under no obligation to point out the mistake, and he merely accepted the plea offer in exchange for dismissal of several other charges.   To support his argument, defendant relies on State v. Conway, 416 N.J.Super.   406 (App.Div.2010).   Conway is inapposite.

In Conway, the defendant reserved his right to withdraw his plea if the co-defendants did not also plead guilty.  Id. at 409, 412.   A month after his plea, when one of the co-defendants opted to go to trial, the prosecutor successfully moved to vacate defendant's plea agreement, contending that she understood that the plea deal was conditioned on all defendants pleading guilty, and expressing concern that if the third defendant went to trial, Conway would testify on the co- defendant's behalf.  Id. at 409-10.   We reversed, holding that the State could not vacate the defendant's plea because the State had not conditioned its acceptance of defendant's plea agreement on the co-defendants entering into plea agreements.  Id. at 412-13.   In so holding, we noted “[t]he unilateral mistake made by the prosecutor, standing alone, was not sufficient to invalidate the plea agreement.”  Id. at 411 (quoting State v. Means, 191 N.J. 610, 622 (2007)).

This appeal does not concern the State's attempt to vacate a plea agreement because of a unilateral mistake or an unstated condition that has not been fulfilled, but instead concerns defendant's successful appellate challenge to his sentence on one of two charges to which he pled guilty.   Defendant's statements during the plea hearing demonstrate that he did more than merely accept the plea offer, and that he, too, was under the mistaken belief that there was a factual basis for his plea to the weapons offense.   During the plea hearing, defendant's attorney represented to the court that defendant was prepared to plead guilty on counts five and nine, the CDS offense and the weapons offense.   Defendant acknowledged pleading guilty because he was guilty, and when specifically asked by the court if in the past he had been convicted of possession of a CDS with intent to distribute, he answered in the affirmative.   Possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5, was the predicate offense for his plea to count nine, N.J.S.A. 2C:39-7, certain persons not to have weapons.   By acknowledging his guilt and his prior conviction of the purported predicate offense, defendant provided the basis, albeit the mistaken basis, for his conviction.

For the foregoing reasons, we vacate defendant's convictions and sentences on counts five and nine;  and we reinstate the remaining counts of the indictment.   The parties may renegotiate the plea agreement or proceed to trial.   We reverse and remand this matter for further proceedings consistent with this opinion.

Reversed and remanded.

FOOTNOTES

FN1. According to the sentencing hearing transcript and judgment of conviction, defendant was sentenced to a flat five-year term on count five, and a five-year term with five years of parole ineligibility on count nine..  FN1. According to the sentencing hearing transcript and judgment of conviction, defendant was sentenced to a flat five-year term on count five, and a five-year term with five years of parole ineligibility on count nine.

PER CURIAM