Extended Term Sentence Applications (Part 2)

by | Sep 19, 2020 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

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Justice Timpone continued in relevant part: Here, the State expressly bargained away its right to seek a mandatory extended term as a part of its negotiated plea agreement with defendant. Further, the State placed its express waiver on the record and in the plea forms. Clearly, Section 12 governed this plea.

The Appellate Division correctly determined that 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). Indeed, we find it applicable because it was nestled within the confines of the negotiated plea agreement. The parties agreed to a significantly lesser sentence and period of parole ineligibility for the defendant than that mandated by the CDRA. The trial court properly sentenced in accord with the negotiated plea agreement.

The State maintains the filing of a formal notice of intent to seek the extended term is not required. The State proffers Rule 3:21-4(e), which governs applications for extended or enhanced terms of imprisonment and provides that, “if the negotiated disposition includes the recommendation of an extended term, the prosecutor’s oral notice and the recordation of the extended term exposure in the plea form completed by defendant and reviewed on the record shall serve as the State’s motion.” The State contends that if the plea form and oral notice by the prosecutor upon entry of the plea are sufficient to satisfy notice requirements and trigger the applicability of N.J.S.A. 2C-43-6(f)’s mandatory extended terms, the same manner of waiving the extended term on the record so as to trigger Section 12 should also suffice.

We agree. We see no merit in requiring the State in a negotiated plea agreement setting to file an extended-term application only to withdraw it at the time of sentencing. That is a waste of judicial resources and an unnecessary burden on the courts. Instead, pursuant to the plea agreement, defendants may stipulate to their eligibility for an extended term, knowing that their negotiated plea agreements give them full cover on the issue. In this case, the State amply satisfied its notice requirements by clearly informing defendant that it was agreeing not to file a motion for an extended term and that it was seeking the benefit of a Section 12 plea agreement. At no point did defendant object to his eligibility for an extended-term sentence. The record clearly indicates that defendant understood and acknowledged that a conviction exposed him to a mandatory extended-term sentence and period of parole ineligibility under N.J.S.A. 2C:43-6(f). We find no merit in defendant’s claim that he was not subject to N.J.S.A. 2C:43-6(f)‘s mandatory sentencing requirements. Defendant’s express acknowledgment in the Supplemental Plea Form that he “entered into an agreement providing for a lesser sentence or period of parole ineligibility than would otherwise be required” is incontrovertible.

It is good strategy to argue in favor of saving judicial resources when resources are sparse. Such is the case with the growing backlog of cases resulting from COVID-related court closures.