SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. Nance/Bolton/Williams (A-47/48/49-15) (076626)
Argued November 7, 2016 -- Decided April 5, 2017
Patterson, J., writing for a unanimous Court.
In these consolidated sentencing appeals, the Court considers whether an amendment to the Graves Act,
N.J.S.A. 2C:43-6.2 (section 6.2), which authorizes a prosecutor to move before the assignment judge for a waiver of
the Graves Act’s mandatory minimum terms of incarceration for certain first-time offenders, was properly applied in
defendants’ sentencing proceedings. The Court also considers whether sentencing judges have the discretion to
elect one of the two alternative sentences set forth in section 6.2: to “place the defendant on probation . . . or reduce
to one year the mandatory minimum term of imprisonment during which the defendant will be ineligible for parole.”
Defendant Nance pled guilty to third-degree unlawful possession of a sawed-off shotgun. As part of that
agreement, the State was to recommend a sentence of five years’ imprisonment with one year of parole ineligibility.
At the sentencing hearing, defendant’s counsel requested a reduction in sentence. The sentencing judge suggested
that he would be inclined to reduce the five-year term of incarceration, but did not believe that he had the authority
to reduce the mandatory minimum further because of the Graves Act waiver under section 6.2. The judge sentenced
Nance to a five-year term of incarceration with a one-year period of parole ineligibility.
Defendant Willis-Bolton pled guilty to second-degree unlawful possession of a handgun. The presiding
judge of the Criminal Part granted the prosecutor’s motion for a reduction of the period of parole ineligibility from
three years, as prescribed by N.J.S.A. 2C:43-6(c), to one year. The sentencing judge sentenced Willis-Bolton to a
prison term of three years with one year of parole ineligibility, in accordance with the plea agreement.
Defendant Williams pled guilty to second-degree unlawful possession of a handgun. As part of that plea
agreement, the prosecutor agreed to request that Williams’s second-degree offense be treated as a third-degree
offense for purposes of sentencing, and to recommend a sentence of three years’ imprisonment with one year of
parole ineligibility pursuant to section 6.2, rather than the three-year period of parole ineligibility that would
otherwise be imposed pursuant to the Graves Act. N.J.S.A. 2C:43-6(c). The State represented to the sentencing
judge that a Graves Act waiver had been approved, however it did not identify the judge who granted the waiver and
the record is inconclusive on that issue. Williams was sentenced in accordance with the plea agreement.
Nance, Willis-Bolton, and Williams appealed their sentences. The Appellate Division consolidated their
appeals, vacated defendants’ sentences and remanded the matters to the respective sentencing courts. 442 N.J.
Super. 268 (App. Div. 2015). The panel held that the sentencing judges had improperly concluded that they lacked
the discretion to impose sentences that diverged from the terms recommended by the State as part of defendants’
plea agreements. The panel reasoned that section 6.2 “vests discretion with the sentencing judge to impose either a
one-year minimum term of parole eligibility or probation conditioned on a custodial term upon the motion for a
waiver or after a prosecutor approved referral.” Id. at 270. Accordingly, the panel ruled that defendants were
entitled to be resentenced, with the sentencing courts unrestrained by the terms of the plea agreements.
The Court granted the State’s petitions for certification in the consolidated cases. 224 N.J. 124 (2016).
HELD: Section 6.2 was misapplied in defendants’ sentencing proceedings and therefore defendants should be
resentenced. The assignment judge, not the sentencing judge, has the authority to decide whether a defendant will be
sentenced to a term of probation or a term of incarceration with a one-year period of parole ineligibility. If the
defendant has been convicted of a first-degree or second-degree Graves Act offense, the assignment judge (or designee)
must consider the presumption of incarceration prescribed by N.J.S.A. 2C:44-1(d) when he or she chooses between the
probationary and one-year mandatory minimum sentences envisioned by section 6.2.
1
1. The provision at the center of this case, section 6.2, exempts certain first-time offenders convicted of Graves Act
offenses from the mandatory minimum terms of incarceration that the statute otherwise requires. N.J.S.A. 2C:43-6.2.
Section 6.2 was enacted to authorize the reduction of sentence for a person convicted of a first offense under the Graves
Act if the prosecutor makes a motion before the assignment judge stating that the interests of justice would not be
served by the imposition of the mandatory minimum term under the Graves Act. Pursuant to a 2008 memorandum
issued by the Administrative Office of the Courts, an assignment judge may delegate his or her authority under section
6.2 to the presiding judge of the Criminal Part. (pp. 10-14)
2. In construing section 6.2, the Court’s task is to ascertain the Legislature’s intent, reflecting its chosen language, and
to give the words of the statute their generally accepted meaning. The Court first considers who—the assignment judge
or the sentencing judge—is authorized by section 6.2 to determine whether the defendant will be sentenced to a term of
probation or a term of incarceration with a one-year period of parole ineligibility, following the grant of a prosecutor’s
motion for a waiver under section 6.2. (pp. 14-15)
3. The plain language of section 6.2 reveals a clear legislative intent that the assignment judge, not the sentencing
judge, has the statutory authority to make such a determination. When an application for a waiver under section 6.2 is
made, the assignment judge or his or her designee has the authority to choose one of two sentences: he or she “shall
place the defendant on probation pursuant to [N.J.S.A. 2C:43-2(b)(2)] or reduce to one year the mandatory minimum
term of imprisonment during which the defendant will be ineligible for parole.” N.J.S.A. 2C:43-6.2. Although the
prosecutor retains the discretion to decide whether to seek a Graves Act waiver in a given case, and may argue in favor
of a probationary term or a custodial sentence with a one-year period of ineligibility, nothing in the statute suggests that
the assignment judge or designee must accept the prosecutor’s recommendation. Nor does section 6.2 permit the
sentencing court to choose between the statutory alternatives; the authority to elect one of the two sentences set forth in
section 6.2 is clearly vested in the assignment judge. (pp. 15-16)
4. Two of the three cases raise an additional issue not addressed by the Appellate Division: the role of the presumption
of incarceration prescribed by N.J.S.A. 2C:44-1(d) in the sentencing determination under section 6.2 for a first-degree
or second-degree Graves Act offender. N.J.S.A. 2C:44-1(d) provides a “serious injustice” exception to the presumption
of imprisonment, which applies only in extraordinary and unanticipated circumstances and thus imposes a high standard
that must be overcome before a first or second-degree offender may be sentenced to a non-custodial term. (pp. 17-18)
5. The Court construes section 6.2 and N.J.S.A. 2C:44-1(d) so as to harmonize the two components of the Code’s
sentencing scheme. Nothing in either provision suggests that a Graves Act waiver exempts a defendant convicted of a
first or second-degree offense from the presumption of incarceration. Because one of the two alternative sentences
permitted under section 6.2—a custodial term with a mandatory minimum of one year—constitutes a “sentence of
imprisonment” within the meaning of N.J.S.A. 2C:44-1(d), an assignment judge or designee may comply with section
6.2 and N.J.S.A. 2C:44-1(d) at once. When the defendant has been convicted of a first-degree or second-degree Graves
Act offense, the assignment judge, or the presiding judge as his or her designee, must consider the presumption of
incarceration set forth in N.J.S.A. 2C:44-1(d). Following the assignment judge’s or designee’s determination, the
sentencing court, applying N.J.S.A. 2C:44-2 and other pertinent provisions of the Code, exercises its discretion to
weigh the aggravating and mitigating factors and determine the remaining terms of the sentence; it may impose the
sentence recommended as part of the plea agreement, but is not required to do so. (pp. 18-21)
6. In each of the three cases consolidated in this appeal, the defendant is entitled to resentencing. The record of
Nance’s sentencing does not reveal whether the presiding judge made the determination required by section 6.2, and the
sentencing judge considered himself constrained to accept the sentence recommended as part of the plea agreement. In
the sentencing of Willis-Bolton, the record is unclear as to whether the presiding judge conducted the determination
required by section 6.2. In the sentencing of Williams, the parties dispute whether or not the assignment judge decided
between a probationary sentence and a term of incarceration as prescribed by section 6.2. (pp. 21-24)
The judgment of the Appellate Division is AFFIRMED, in part, and REVERSED, in part, and the
consolidated cases are REMANDED to the trial court for resentencing in accordance with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in JUSTICE PATTERSON’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-47/48/49 September Term 2015
076626
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
SHAQUILLE A. NANCE (a/k/a
NANCE SHAQUILLE A, NANCE
SHAQUILLE),
Defendant-Respondent.
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
TAJA L. WILLIS-BOLTON (a/k/a
TAJA BOLTON, TAJA WILLIS, TAJ
BOLTON, TAJ WILLIS, TAJ
WILLISBOLTON, TAJA
WILLISBOLTON,
Defendant-Respondent.
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
ALVIN D. WILLIAMS,
Defendant-Respondent.
Argued November 7, 2016 – Decided April 5, 2017
On certification to the Superior Court,
Appellate Division, whose opinion is
1
reported at 442 N.J. Super. 268 (App. Div.
2015).
Daniel I. Bornstein, Deputy Attorney
General, argued the cause for appellant
(Christopher S. Porrino, Attorney General of
New Jersey, attorney).
Ruth E. Hunter, Designated Counsel, argued
the cause for respondents Shaquille A. Nance
and Taja L. Willis-Bolton (Joseph E.
Krakora, Public Defender, attorney).
Brian P. Keenan, Assistant Deputy Public
Defender, argued the cause for respondent
Alvin D. Williams (Joseph E. Krakora, Public
Defender, attorney).
JUSTICE PATTERSON delivered the opinion of the Court.
The Graves Act, N.J.S.A. 2C:43-6(c), imposes a mandatory
minimum term of incarceration on an offender “who uses or
possesses a firearm while committing, attempting to commit, or
fleeing after the commission of certain designated crimes.”
State v. Robinson, 217 N.J. 594, 607 (2014) (quoting State v.
Stewart, 96 N.J. 596, 601 (1984)). An amendment to the Graves
Act, N.J.S.A. 2C:43-6.2 (section 6.2), authorizes a prosecutor
to move before the assignment judge for a waiver of the Graves
Act’s mandatory minimum terms of incarceration for certain
first-time offenders. Section 6.2 empowers the assignment judge
(who may delegate his or her authority to the presiding judge of
the Criminal Part) to “place the defendant on probation . . . or
reduce to one year the mandatory minimum term of imprisonment
during which the defendant will be ineligible for parole.”
2
Ibid. The statute also permits a sentencing judge to refer a
case to the assignment judge for a waiver of the Graves Act
penalties. Ibid.
These consolidated sentencing appeals require the Court to
resolve procedural issues with respect to the application of
section 6.2. In each case, in accordance with a plea agreement
between the defendant and the State, the State agreed to
recommend a sentence of incarceration with a one-year period of
parole ineligibility. Following the assignment judge’s approval
of the Graves Act waiver pursuant to section 6.2, each defendant
was sentenced to a term of incarceration with a one-year period
of parole ineligibility rather than a probationary term.
Defendants challenged their sentences on appeal. An Appellate
Division panel vacated defendants’ sentences and remanded for
resentencings. The panel held that a sentencing judge has the
authority to choose between the alternative sentences permitted
by section 6.2 and that, because the sentencing judges in these
cases improperly concluded that they lacked the discretion to
diverge from the sentence recommended by the State in accordance
with the plea agreement, defendants should be resentenced.
We affirm in part and reverse in part the Appellate
Division panel’s judgment. We affirm the panel’s determination
that in defendants’ sentencing proceedings, section 6.2 was
misapplied, and that defendants should therefore be resentenced.
3
We reverse the panel’s ruling that sentencing judges have
the discretion to elect one of the two alternative sentences set
forth in section 6.2. In accordance with the plain language of
section 6.2, the assignment judge, not the sentencing judge, has
the authority to decide whether a defendant will be sentenced to
a term of probation or a term of incarceration with a one-year
period of parole ineligibility. N.J.S.A. 2C:43-6.2. If the
defendant has been convicted of a first-degree or second-degree
Graves Act offense, the assignment judge or designee must
consider the presumption of incarceration prescribed by N.J.S.A.
2C:44-1(d) when he or she chooses between the probationary and
one-year mandatory minimum sentences envisioned by section 6.2.
Accordingly, we remand these matters for resentencing in
accordance with the procedure prescribed by section 6.2.
I.
A.
On April 19, 2013, defendant Shaquille A. Nance (Nance)
pled guilty before a Mercer County judge to third-degree
unlawful possession of a sawed-off shotgun, in violation of
N.J.S.A. 2C:39-3(b). Nance pled guilty as part of a plea
agreement that required the State to recommend a sentence of
five years’ imprisonment with one year of parole ineligibility,
rather than the three-year period of parole ineligibility that
would otherwise apply under the Graves Act, subject to the
4
presiding judge’s approval of a reduction of the Graves Act’s
mandatory minimum.
At Nance’s sentencing hearing, his counsel requested a
reduction in the sentence recommended under the plea agreement
from five years with a one-year period of parole ineligibility
to three years with a one-year period of parole ineligibility.
Defense counsel cited Nance’s youth, his efforts to obtain an
education and job training, and the absence of a prior felony on
his record. The sentencing judge suggested that he would be
inclined to reduce the five-year term of incarceration
envisioned by the plea agreement, but did not believe that he
had the authority to reduce the mandatory minimum further
because of the Graves Act waiver under section 6.2. The judge
found aggravating factor nine, “[t]he need for deterring the
defendant and others from violating the law,” N.J.S.A. 2C:44-
1(a)(9), and “gave partial credit to” both mitigating factor
seven, the lack of “history of prior delinquency or criminal
activity,” N.J.S.A. 2C:44-1(b)(7), and mitigating factor twelve,
“[t]he willingness of the defendant to cooperate with law
enforcement authorities,” N.J.S.A. 2C:44-1(b)(12). In weighing
the aggravating and mitigating factors in accordance with
N.J.S.A. 2C:44-1(a) and (b), the judge sentenced Nance to a
five-year term of incarceration with a one-year period of parole
ineligibility.
5
B.
On February 19, 2013, defendant Taja L. Willis-Bolton
(Willis-Bolton) pled guilty before a Monmouth County judge to
one count of second-degree unlawful possession of a handgun,
contrary to N.J.S.A. 2C:39-5(b). Immediately prior to the plea
hearing, the presiding judge of the Criminal Part granted the
prosecutor’s motion for a reduction of the period of parole
ineligibility from three years, as prescribed by N.J.S.A. 2C:43-
6(c), to one year. The plea agreement between the State and
Willis-Bolton required the State to recommend a sentence of
three years’ incarceration with a one-year period of parole
ineligibility.
At Willis-Bolton’s sentencing, the sentencing judge found
aggravating factor three, “[t]he risk that the defendant will
commit another offense,” N.J.S.A. 2C:44-1(a)(3), and aggravating
factor nine, N.J.S.A. 2C:44-1(a)(9), and found no mitigating
factors. The judge concluded that the aggravating factors
predominated. In accordance with the plea agreement, the judge
sentenced Willis-Bolton to a prison term of three years with one
year of parole ineligibility.
C.
On April 8, 2013, defendant Alvin D. Williams (Williams)
pled guilty before a Union County judge to second-degree
unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-
6
5(b). Pursuant to the plea agreement between Williams and the
State, the prosecutor agreed to request that Williams’s second-
degree offense be treated as a third-degree offense for purposes
of sentencing, and to recommend a sentence of three years’
imprisonment with one year of parole ineligibility pursuant to
section 6.2, rather than the three-year period of parole
ineligibility that would otherwise be imposed pursuant to the
Graves Act. N.J.S.A. 2C:43-6(c). Although the State
represented to the sentencing judge that a Graves Act waiver had
been approved, it did not identify the judge who granted the
waiver. Williams contends that the State failed to follow the
statutory procedure, and the record is inconclusive on that
issue.
In accordance with the plea agreement, the State asked the
sentencing judge to sentence Williams as a third-degree
offender. The judge found aggravating factor three, N.J.S.A.
2C:44-1(a)(3), aggravating factor nine, N.J.S.A. 2C:44-1(a)(9),
and mitigating factor seven, N.J.S.A. 2C:44-1(b)(7). The judge
determined that the aggravating factors outweighed the
mitigating factor and sentenced Williams to a term of three
years’ incarceration with a one-year period of parole
ineligibility.
D.
7
Nance, Willis-Bolton, and Williams appealed their sentences
to the Appellate Division, which consolidated their appeals. An
Appellate Division panel reversed defendants’ sentences and
remanded the three matters to the respective sentencing courts
for resentencing. State v. Nance, 442 N.J. Super. 268, 270
(App. Div. 2015). The panel held that the sentencing judges in
all three cases had improperly concluded that they lacked the
discretion to impose sentences that diverged from the terms of
incarceration with a one-year period of parole ineligibility
recommended by the State as part of defendants’ plea agreements.
Id. at 273. The panel reasoned that section 6.2 “vests
discretion with the sentencing judge to impose either a one-year
minimum term of parole eligibility or probation conditioned on a
custodial term upon the motion for a waiver or after a
prosecutor approved referral.” Ibid. The panel accordingly
ruled that defendants were entitled to be resentenced, with the
sentencing courts unrestrained by the terms of the plea
agreements. Id. at 275-76.
We granted the State’s petitions for certification in the
three consolidated cases. 224 N.J. 124 (2016).
II.
The State argues that the Appellate Division panel
misapplied the plain language of section 6.2, and undermined the
established procedural framework for Graves Act waivers, when it
8
concluded that a sentencing court has discretion to sentence a
defendant convicted of a Graves Act offense to probation without
the prosecutor’s consent or the assignment judge’s approval. It
contends that counsel and judges have operated on the assumption
that there is a presumption against probationary sentences in
Graves Act cases, and notes that the Legislature has not amended
section 6.2 to eliminate that presumption. The State asserts
that the presumption of incarceration prescribed by N.J.S.A.
2C:44-1(d), which was not addressed by the panel, governs the
sentencing of Willis-Bolton and Williams because they were
convicted of second-degree crimes.
Defendants urge the Court to affirm the Appellate
Division’s decision. They contend that a sentencing court is
not bound by the State’s specific sentencing recommendation, and
that section 6.2 grants a sentencing judge expansive discretion
when the defendant is a first-time Graves Act offender.
Defendants dispute the State’s position that the prosecutor must
recommend a probationary term for a first-time Graves Act
offender in order to authorize the sentencing court to impose
such a term. Willis-Bolton further argues that the presumption
of incarceration set forth in N.J.S.A. 2C:44-1(d) does not
supersede section 6.2’s specific mandate that, if a waiver is
granted, the sentencing court must sentence a first-time Graves
9
Act offender to either a term of incarceration with a one-year
parole disqualifier or to a probationary sentence.
III.
A.
Enacted in 1981 as “a direct response to a substantial
increase in violent crime in New Jersey,” the Graves Act is
intended “to ensure incarceration for those who arm themselves
before going forth to commit crimes.” State v. Des Marets, 92
N.J. 62, 68 (1983); see also State v. Haliski, 140 N.J. 1, 15
(1995). As amended, the statute applies to a defendant who is
convicted of one of the offenses enumerated in the statute “who,
while in the course of committing or attempting to commit the
crime, including the immediate flight therefrom, used or was in
possession of a firearm as defined in [N.J.S.A.] 2C:39-1(f).”
Des Marets, supra, 92 N.J. at 64 n.1.1
1 The Graves Act applies to a defendant who has been convicted
of one of the following offenses: possession of a sawed-off
shotgun or defaced firearm, N.J.S.A. 2C:39-3(b), (d); possession
of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a);
possession of a firearm while committing certain drug-related
offenses or bias intimidation offenses, N.J.S.A. 2C:39-4.1(a);
unlawful possession of a machine gun, handgun, rifle or shotgun,
or assault firearm, N.J.S.A. 2C:39-5(a), (b), (c), (f); certain
persons not to have weapons, N.J.S.A. 2C:39-7(a), (b)(2),
(b)(3); manufacture, transport, disposition and defacement of
machine guns, sawed-off shotguns, defaced firearms, or assault
firearms, N.J.S.A. 2C:39-9(a), (b), (e), (g). N.J.S.A. 2C:43-
6(c). The statute also applies to a defendant who “used or was
in possession of a firearm” while in the course of committing,
attempting to commit, or fleeing from the following crimes:
murder, N.J.S.A. 2C:11-3; manslaughter, N.J.S.A. 2C:11-4;
10
When defendants were sentenced, the Graves Act imposed a
minimum term “fixed at, or between, one-third and one-half of
the sentence imposed by the court or three years, whichever is
greater, or 18 months in the case of a fourth degree crime,
during which the defendant shall be ineligible for parole.”
N.J.S.A. 2C:43-6(c).2 Although the mandatory minimums are
prescribed by the Graves Act, the sentencing court weighs the
aggravating and mitigating factors, N.J.S.A. 2C:44-1(a) and (b),
and exercises discretion over other aspects of the sentence.
See, e.g., N.J.S.A. 2C:44-1(a), (b); N.J.S.A. 2C:44-2; N.J.S.A.
2C:44-5.
The provision at the center of this case, section 6.2,
exempts certain first-time offenders convicted of Graves Act
offenses from the mandatory minimum terms of incarceration that
the statute otherwise requires. N.J.S.A. 2C:43-6.2. Section
6.2 “was originally proposed as part of an amendment to
[N.J.S.A.] 2C:43-6[c] which would, overall, have increased
aggravated assault, N.J.S.A. 2C:12-1(b); kidnapping, N.J.S.A.
2C:13-1; aggravated sexual assault, N.J.S.A. 2C:14-2(a);
aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a);
robbery, N.J.S.A. 2C:15-1; burglary, N.J.S.A. 2C:18-2; and
escape, N.J.S.A. 2C:29-5. N.J.S.A. 2C:43-6(c).
2 A few months after defendants’ sentences were imposed, the
Graves Act was amended to increase the periods of parole
ineligibility for defendants convicted of first-degree, second-
degree, and third-degree offenses to “one-half of the sentence
imposed by the court or 42 months, whichever is greater.”
N.J.S.A. 2C:43-6(c) (2013).
11
mandatory minimum terms,” but the “amendment increasing terms
was not enacted.” Cannel, New Jersey Criminal Code Annotated,
comment 1 on N.J.S.A. 2C:43-6.2 (2017); see also Sponsor’s
Statement to Senate No. 827 (1988) (“This bill increases the
ordinary and extended minimum mandatory terms of imprisonment
without parole eligibility for conviction of certain crimes of
the first and second degree under the Graves Act.”).
Section 6.2 was enacted to authorize “the reduction of
sentence for a person convicted of a first offense under the
Graves Act if the prosecutor makes a motion before the
assignment judge stating that the interests of justice would not
be served by the imposition of the mandatory minimum term under
the Graves Act.” Senate Law, Pub. Safety & Def. Comm.,
Statement to S. No. 827 (1988); see also Assembly Judiciary
Comm., Statement to S. No. 827 (1988). It provides:
On a motion by the prosecutor made to the
assignment judge that the imposition of a
mandatory minimum term of imprisonment under
(a) subsection c. of [N.J.S.A.] 2C:43-6 for a
defendant who has not previously been
convicted of an offense under that subsection,
or (b) subsection e. of [N.J.S.A.] 2C:39-10
for a defendant who has not previously been
convicted of an offense under chapter 39 of
Title 2C of the New Jersey Statutes, does not
serve the interests of justice, the assignment
judge shall place the defendant on probation
pursuant to [N.J.S.A. 2C:43-2(b)(2)] or reduce
to one year the mandatory term of imprisonment
during which the defendant will be ineligible
for parole. The sentencing court may also
refer a case of a defendant who has not
12
previously been convicted of an offense under
that subsection to the assignment judge, with
the approval of the prosecutor, if the
sentencing court believes that the interests
of justice would not be served by the
imposition of a mandatory minimum term.
[N.J.S.A. 2C:43-6.2.]
Pursuant to a 2008 memorandum issued by the Administrative
Office of the Courts, an assignment judge may delegate his or
her authority under section 6.2 to the presiding judge of the
Criminal Part. Administrative Office of the Courts, Memorandum,
Motions in Graves Act Cases – Delegable by Assignment Judge to
Criminal Presiding Judge (Nov. 21, 2008); see also R. 1:33-6(a)
(authorizing delegation of assignment judge’s authority under
court rules to presiding judge).
In 2008, the Attorney General issued a Directive regarding
the application of section 6.2, which was intended to “ensure
statewide uniformity in the enforcement of the Graves Act, and
to provide reasonable incentives for guilty defendants to accept
responsibility by pleading guilty in a timely manner so as to
maximize deterrence by ensuring the swift imposition of
punishment.” Attorney General, Directive to Ensure Uniform
Enforcement of the “Graves Act” (Oct. 23, 2008, as corrected
Nov. 25, 2008) (Directive) at 4. In the Directive, the Attorney
General instructed prosecutors to “tender an initial
standardized plea offer pursuant to [section 6.2] that will in
13
typical cases result in the defendant serving a State Prison
term of one year without possibility of parole.” Ibid. The
Directive charged prosecutors to apply a “strict presumption”
against a probationary sentence. Id. at 12-13.3
The Directive instructed prosecutors to seek a stay of, and
appeal, a defendant’s sentence if a court rejects the
prosecutor’s recommendation by waiving or reducing a mandatory
minimum term or imposing a probationary term. Directive, supra,
at 15. As the State notes, the Directive currently governs the
practice of prosecutors in their applications for relief from
Graves Act sentences under section 6.2.
B.
In that setting, we consider the statutory construction
issues raised by these appeals. As this Court observed in the
context of a sentencing appeal, “[b]ecause statutory
interpretation involves the examination of legal issues, it is
considered a question of law. Accordingly, a de novo standard
of review applies on appeal.” State in Interest of K.O., 217
3 In a 2014 Clarification to the Directive, the Attorney General
advised prosecutors that a sentence of non-custodial probation
or pretrial intervention would be appropriate when “a resident
of another state brings into New Jersey a firearm that had been
acquired lawfully and that could be carried lawfully by that
visitor in the visitor’s home jurisdiction.” Attorney General,
Clarification of “Graves Act” 2008 Directive with Respect to
Offenses Committed by Out-of-State Visitors from States Where
Their Gun-Possession Conduct Would Have Been Lawful (Sept. 24,
2014) at 1.
14
N.J. 83, 91 (2014) (citing McGovern v. Rutgers, 211 N.J. 94,
107-08 (2012); State v. Gandhi, 201 N.J. 161, 176 (2010)). We
therefore review de novo the sentencing courts’ legal
determinations, affording no special deference to the courts’
interpretation of the relevant statutes.
In construing section 6.2, “[o]ur task is to ascertain the
Legislature’s intent, reflecting its chosen language, and to
give the words of the statute ‘their generally accepted
meaning.’” State v. Bolvito, 217 N.J. 221, 228-29 (2014)
(quoting State v. Marquez, 202 N.J. 485, 499 (2010)); see also
N.J.S.A. 1:1-1. “When the Legislature’s chosen words lead to
one clear and unambiguous result, the interpretive process comes
to a close, without the need to consider extrinsic aids.” State
v. Shelley, 205 N.J. 320, 323 (2011).
We first consider who -- the assignment judge or the
sentencing judge -- is authorized by section 6.2 to determine
whether the defendant will be sentenced to a term of probation
or a term of incarceration with a one-year period of parole
ineligibility, following the grant of a prosecutor’s motion for
a waiver under section 6.2. The plain language of section 6.2
reveals a clear legislative intent that the assignment judge,
not the sentencing judge, has the statutory authority to make
such a determination. N.J.S.A. 2C:43-6.2.
15
When an application for a waiver under section 6.2 is made
by motion of a prosecutor, the assignment judge or his or her
designee has the authority to choose one of two sentences: he
or she “shall place the defendant on probation pursuant to
[N.J.S.A. 2C:43-2(b)(2)] or reduce to one year the mandatory
minimum term of imprisonment during which the defendant will be
ineligible for parole.” Ibid. Although the prosecutor retains
the discretion to decide whether to seek a Graves Act waiver in
a given case, and may argue in favor of a probationary term or a
custodial sentence with a one-year period of ineligibility,
nothing in the statute suggests that the assignment judge or
designee must accept the prosecutor’s recommendation. Ibid.
Nor does section 6.2 permit the sentencing court to choose
between the statutory alternatives; the authority to elect one
of the two sentences set forth in section 6.2 is clearly vested
in the assignment judge. Ibid. The sentencing court’s task is
to devise a sentence that comports with the assignment judge’s
ruling and the sentencing provisions of the Code; although the
court may impose the sentence recommended by the State under the
plea agreement, it is not required to do so. See State v. Hess,
207 N.J. 123, 151 (2011) (holding that plea agreement may
include sentence to be recommended by State, but may not
restrict “the court’s ability to exercise discretion in
sentencing”); State v. Warren, 115 N.J. 433, 442 (1989)
16
(“[P]arties can agree only on a sentence that the prosecutor
will ‘recommend’ to the court; they are not empowered to
negotiate a sentence that can have any binding effect.”).
Accordingly, the plain language of section 6.2 resolves the
first question raised by this appeal.
Two of the three cases before the Court, which involve the
sentencing of second-degree Graves Act offenders, raise an
additional issue not addressed by the Appellate Division: the
role of the presumption of incarceration prescribed by N.J.S.A.
2C:44-1(d) in the assignment judge’s sentencing determination
under section 6.2 for a first-degree or second-degree Graves Act
offender. N.J.S.A. 2C:44-1(d) provides:
The court shall deal with a person who has been
convicted of a crime of the first or second
degree . . . by imposing a sentence of
imprisonment unless, having regard to the
character and condition of the defendant, it
is of the opinion that his imprisonment would
be a serious injustice which overrides the need
to deter such conduct by others.
“The ‘serious injustice’ exception to the presumption of
imprisonment applies only in ‘truly extraordinary and
unanticipated circumstances,’” State v. Jabbour, 118 N.J. 1, 7
(1990) (quoting State v. Roth, 95 N.J. 334, 358 (1984)), “where
the ‘human cost’ of punishing a particular defendant to deter
others from committing his offense would be ‘too great,’” State
v. Evers, 175 N.J. 355, 389 (2003) (quoting State v. Rivera, 124
17
N.J. 122, 125 (1991)). N.J.S.A. 2C:44-1(d) thus imposes a high
standard that must be overcome before a first or second-degree
offender may be sentenced to a non-custodial term.
When, as here, two related statutes are relevant to the
disposition of a matter, they “should be read in pari materia
and construed together as a unitary and harmonious whole.” Nw.
Bergen Cty. Utils. Auth. v. Donovan, 226 N.J. 432, 444 (2016)
(quoting Saint Peter’s Univ. Hosp. v. Lacy, 185 N.J. 1, 15
(2005) (internal quotation marks omitted)). As this Court has
observed,
[w]hen ascertaining legislative intent, we can
infer that the Legislature was “familiar with
its own enactments, with judicial declarations
relating to them, and . . . passed or preserved
cognate laws with the intention that they be
construed to serve a useful and consistent
purpose.” Those principles require us to look
to related legislation to determine the
contours of [a] statutory right . . . .
[State v. Greeley, 178 N.J. 38, 46 (2003)
(first omission in original) (emphasis
omitted) (quoting State v. Federanko, 26 N.J.
119, 129 (1958)).]
We construe section 6.2 and N.J.S.A. 2C:44-1(d) so as to
harmonize the two components of the Code’s sentencing scheme.
Nothing in either provision suggests that a Graves Act waiver
exempts a defendant convicted of a first or second-degree
offense from the presumption of incarceration. N.J.S.A. 2C:44-
1(d) governs the sentencing of any “person who has been
18
convicted of a crime of the first or second degree,” with no
exception for defendants who are granted a Graves Act waiver.
N.J.S.A. 2C:44-1(d). Because one of the two alternative
sentences permitted under section 6.2 -- a custodial term with a
mandatory minimum of one year -- constitutes a “sentence of
imprisonment” within the meaning of N.J.S.A. 2C:44-1(d), an
assignment judge or designee may comply with section 6.2 and
N.J.S.A. 2C:44-1(d) at once. By considering the standard of
N.J.S.A. 2C:44-1(d) in deciding between the probationary and
custodial sentences authorized by section 6.2, an assignment
judge or presiding judge achieves the legislative objectives of
both provisions.
Indeed, a contrary construction would produce unfair and
anomalous results. A defendant convicted of second-degree
robbery committed without the use of a weapon, for example, is
subject to the presumption of incarceration; absent a finding
that the presumption is overcome under the “serious injustice”
standard, such a defendant would face a five- to ten-year prison
term, and may not be sentenced to probation. See N.J.S.A.
2C:15-1(b) (defining second-degree robbery); N.J.S.A. 2C:43-
6(a)(2) (establishing sentencing range for second-degree
offenses); N.J.S.A. 2C:44-1(d) (prescribing presumption of
incarceration for second-degree offenses absent finding of
“serious injustice”). If the presumption of incarceration were
19
held inapplicable to sentencing determinations under section
6.2, any Graves Act offender convicted of first-degree robbery -
- committed while armed with, or using or threatening to use, a
deadly weapon -- could be sentenced to a probationary term
without the need for a finding of “serious injustice.” N.J.S.A.
2C:15-1(b); N.J.S.A. 2C:43-6.2.
Such a sentencing disparity would not only be inequitable,
but would also substantially undermine the deterrent objective
of the Graves Act. “[I]t is axiomatic that statutory
interpretations that lead to absurd or unreasonable results are
to be avoided.” Haliski, supra, 140 N.J. at 9; see also Wilson
ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 573 (2012)
(rejecting construction of N.J.S.A. 52:17C-10 that would
generate unintended results). The presumption of incarceration
set forth in N.J.S.A. 2C:44-1(d) should apply when an assignment
judge or his or her designee chooses between section 6.2’s
alternative sentences.
In sum, when the Legislature enacted section 6.2, it
clearly intended a specific procedure for a Graves Act waiver
initiated by a prosecutor’s motion. The prosecutor decides
whether or not to seek a Graves Act waiver under section 6.2 and
may advocate a particular sentence in the motion. The
assignment judge, not the sentencing court, has the authority to
determine whether the defendant will be sentenced to a
20
probationary term pursuant to N.J.S.A. 2C:43-2, or a term of
incarceration with a one-year period of parole ineligibility.
N.J.S.A. 2C:43-6.2. In that determination, the assignment judge
or designee may accept the prosecutor’s recommendation as to the
appropriate sentence, but is not bound by that recommendation.
Ibid.; Hess, supra, 207 N.J. at 151. When the defendant has
been convicted of a first-degree or second-degree Graves Act
offense, the assignment judge, or the presiding judge as his or
her designee, must consider the presumption of incarceration set
forth in N.J.S.A. 2C:44-1(d).
Following the assignment judge’s or designee’s
determination, the sentencing court, applying N.J.S.A. 2C:44-1
and other pertinent provisions of the Code, exercises its
discretion to weigh the aggravating and mitigating factors and
determine the remaining terms of the sentence; it may impose the
sentence recommended as part of the plea agreement, but is not
required to do so. See N.J.S.A. 2C:44-1; Hess, supra, 207 N.J.
at 151 (citing Warren, supra, 115 N.J. at 447).
C.
We concur with the Appellate Division panel that, in each
of the three cases consolidated in this appeal, the defendant is
entitled to resentencing.
The record of defendant Nance’s sentencing for a third-
degree Graves Act offense does not reveal whether the presiding
21
judge, acting as the assignment judge’s designee, made the
determination required by section 6.2. Moreover, the sentencing
judge considered himself constrained to accept the five-year
sentence of incarceration recommended as part of Nance’s plea
agreement, notwithstanding the judge’s misgivings about the
length of that sentence and the non-binding nature of the
sentencing recommendation. Thus, the sentence did not conform
to section 6.2. N.J.S.A. 2C:43-6.2. If, on resentencing, the
assignment judge or her designee elects the term of
incarceration with a one-year mandatory minimum that was
advocated by the State, the sentencing judge may impose the
five-year base term recommended by the State pursuant to the
plea agreement, but is not required to do so.
In the sentencing of defendant Willis-Bolton, the record is
similarly unclear as to whether the presiding judge, acting as
the assignment judge’s designee, conducted the determination
required by section 6.2. Accordingly, the assignment judge or
her designee should determine whether Willis-Bolton should be
sentenced to a term of probation or a term of incarceration
pursuant to section 6.2. In that determination, the assignment
judge or designee must consider the presumption of incarceration
prescribed by N.J.S.A. 2C:44-1(d), given the second-degree
charge to which Willis-Bolton pled guilty. The sentencing judge
22
is afforded discretion to fashion other terms of the sentence in
accordance with the Code.
In the sentencing of defendant Williams, who pled guilty to
a second-degree Graves Act charge in accordance with a plea
agreement that called for him to be sentenced as a third-degree
offender, the parties dispute whether or not the assignment
judge (or the presiding judge as her designee) decided between a
probationary sentence and a term of incarceration with a one-
year mandatory minimum, as prescribed by section 6.2. On
resentencing, the assignment judge or her designee should make
that determination, taking into account the presumption of
incarceration set forth in N.J.S.A. 2C:44-1(d).4 The sentencing
judge will then determine the remaining aspects of Williams’s
sentence, retaining the discretion to impose the sentence
recommended in the plea agreement between Williams and the State
or an alternative sentence authorized by the Code’s sentencing
provisions.
4 Notwithstanding the State’s agreement that Williams would be
sentenced as a third-degree offender rather than a second-degree
offender, the presumption of incarceration applies. See Evers,
supra, 175 N.J. at 389 (“The downgrading of an offense is not a
prerequisite to finding that the presumption of imprisonment for
a first- or second-degree conviction has been overcome.”); State
v. Salentre, 275 N.J. Super. 410, 415 (App. Div.), certif.
denied, 138 N.J. 269 (1994) (“The presumption of imprisonment
continues, and the presumption against imprisonment does not
apply, on the downgrading of a second[-]degree crime to third[-]
degree for sentence purposes.”).
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IV.
The judgment of the Appellate Division is affirmed in part
and reversed in part, and the consolidated cases are remanded to
the trial court for resentencing in accordance with this
opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE PATTERSON’s
opinion.
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