State v. Shaquille A. Nance State v. Taja L. Willis Bolton State v. Alvin D. Williams(076626)

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.”).
23
 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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