On June 24, 2022, a three-judge appellate panel decided the Atlantic County case of State v. Jaime Cambrelen. The principal issue under N.J.S.A. 2C:44-1 concerned the legality of a plea agreement conditioned upon the defendant not being charged with a new offense before sentencing.
Judge Rose wrote for the panel in relevant part: In our view, that portion of the Subin plea agreement permitting the State to withdraw its sentencing recommendation and seek an enhanced penalty, or request an alternative enhanced sentence that was agreed upon at the time of the guilty plea, based solely on defendant’s arrest on new charges is fraught with constitutional peril. Although defendant in the present matter denied the charges when afforded the opportunity to speak at the sentencing hearing, another similarly situated defendant may be unable to explain the circumstances of a new arrest without self-incrimination. In either case, the defendant’s Fifth Amendment rights hang in the balance.
Conversely, defendants who violate a Subin plea by failing to appear at sentencing for reasons other than committing new crimes may explain their non-appearance without jeopardizing their constitutional rights. For example, a defendant may have been ill and under a doctor’s care on the original sentencing date. Under those circumstances, the due process protections afforded pursuant to a Shaw hearing would not contravene the Fifth Amendment.
In the present matter, the trial court granted the State’s motion for an extended term premised on a finding of probable cause that defendant committed the new charges and thus violated the no new-charges provision of the negotiated plea agreement. Ultimately, however, those charges may result in an acquittal or dismissal, thereby causing an unjust result. See State v. Melvin (2021) (holding the due process principles inherent in Article I, paragraph 1 of the New Jersey Constitution and the doctrine of fundamental fairness protected the defendant from a sentencing judge’s improper use of facts related to charges for which the defendant was acquitted).
The first concern with agreements like this is that it allows law enforcement to orchestrate a baseless new charge in order to maximize the pending sentence. In theory, probable cause is required for a new charge. In practice, that decision is often delegated to a court administrator who rubber-stamps the criminal complaint based on a one-sided claim.