State v. A.T.C. (081201)(Warren County and Statewide)

SYLLABUS

This syllabus is not part of the Court’s opinion. 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
Court. In the interest of brevity, portions of an opinion may not have been summarized.

State v. A.T.C. (A-28-18) (081201)

Argued April 23, 2019 -- Decided August 8, 2019

PATTERSON, J., writing for the Court.

In this appeal, the Court considers defendant A.T.C.’s facial constitutional
challenge, premised on separation of powers principles, to the Jessica Lunsford Act
(JLA), L. 2014, c. 7, § 1 (codified at N.J.S.A. 2C:14-2(a), (d)).

Defendant was arrested and charged with possession and distribution of child
pornography. Defendant admitted that his computer files included pornographic videos
of his girlfriend’s daughter, that he had recorded those videos beginning when the child
was ten years old, and that he had digitally penetrated the victim’s vagina. Pursuant to a
plea agreement that the prosecutor offered in accordance with N.J.S.A. 2C:14-2(d),
defendant pled guilty to aggravated sexual assault of a child less than thirteen years of
age. Defendant moved to modify his sentence, contending in relevant part that the JLA
contravenes the separation of powers doctrine by vesting in the prosecutor sentencing
authority constitutionally delegated to the judiciary.

The court denied defendant’s motion. There was no discussion at defendant’s plea
hearing or sentencing hearing as to why the “interests of the victim” warranted a
departure, or the degree of the departure, from the JLA’s mandatory twenty-five-year
term. Consistent with the plea agreement, the court imposed a term of twenty years’
incarceration, with twenty years’ parole ineligibility, for defendant’s conviction of one
count of first-degree aggravated sexual assault of a victim less than thirteen years of age.

The Appellate Division rejected defendant’s separation of powers challenge to the
JLA’s mandatory sentencing provisions, 454 N.J. Super. 235, 250-54 (App. Div. 2018).

The Court granted defendant’s petition for certification, “limited to defendant’s
facial challenge to N.J.S.A. 2C:14-2(d) as unconstitutional for violating the separation of
powers doctrine.” 236 N.J. 112 (2018). The Court stated that in addressing the question,
it “may consider whether the State -- through the sentencing record and the [JLA]
Guidelines -- sufficiently explained its use of discretion to permit effective judicial
review as required in State v. Vasquez, 129 N.J. 189 (1992), such that A.T.C.’s sentence
did not violate the separation of powers doctrine.” Ibid.

1
HELD: The JLA does not violate the separation of powers doctrine, provided that the
State presents a statement of reasons explaining its decision to depart from the twenty-
five year mandatory minimum sentence specified in N.J.S.A. 2C:14-2(a), and the court
reviews the prosecutor’s exercise of discretion to determine whether it was arbitrary and
capricious. So that the standard adopted today may be applied in this matter, the Court
remands to the sentencing court for further proceedings in accordance with this opinion.

1. The JLA imposes a term of incarceration of twenty-five years to life, with a period of
parole ineligibility of at least twenty-five years, on an offender convicted of an
aggravated sexual assault in which the victim is less than thirteen years old. N.J.S.A.
2C:14-2(a)(1). It also permits a prosecutor, “in consideration of the interests of the
victim,” to waive the twenty-five-year mandatory minimum and offer the defendant a
negotiated plea agreement in which the term of incarceration and the period of parole
ineligibility may not be less than fifteen years. N.J.S.A. 2C:14-2(d). The sentencing
court may accept that negotiated plea agreement, and if it does so, it must sentence the
defendant in accordance with that agreement. (pp. 12-14)

2. The Attorney General has issued guidelines that govern the exercise of prosecutorial
discretion under the statute. The JLA Guidelines, however, do not require the prosecutor
to provide to the court a statement of reasons justifying the proposed reduction of the
twenty-five-year term of incarceration and period of parole ineligibility imposed by
N.J.S.A. 2C:14-2(a). Accordingly, no statutory provision or Guideline ensures that the
court is informed of the prosecutor’s reasoning when it determines whether to accept or
reject a plea agreement offered pursuant to N.J.S.A. 2C:14-2(a). (pp. 14-17)

3. The Court reviews separation of powers principles and notes that criminal sentencing
is a function that does not fit neatly within a single branch of government. (pp. 17-21)

4. In State v. Lagares, the Court considered a defendant’s separation of powers challenge
to a statute that delegated sentencing discretion to prosecutors in certain drug cases. 127
N.J. 20, 24 (1992). The Court agreed with the defendant that, in the absence of
guidelines or “any avenue for effective judicial review,” the statute at issue would be
unconstitutional. Id. at 31. Noting its obligation “to so construe the statute as to render it
constitutional if it is reasonably susceptible to such interpretation,” the Court imposed
three requirements. Id. at 32. First, it interpreted the statute to require the adoption of
prosecutorial guidelines. Ibid. Second, “to permit effective review of prosecutorial
sentencing decisions,” the Court required prosecutors to “state on the trial court record
the reasons for seeking an extended sentence.” Ibid. Finally, the Court concluded that
“an extended term may be denied or vacated” upon a showing that the prosecutor’s
decision to seek that sentence was arbitrary and capricious. Id. at 33. (pp. 21-23)

5. In Vasquez, the Court considered the separation of powers implications of plea
bargaining under a provision of the Comprehensive Drug Reform Act that substantially

2
expanded prosecutorial discretion in drug prosecution plea agreements. 129 N.J. at 197-
209. The defendant argued that the Legislature’s grant of prosecutorial discretion in the
provision contravened separation of powers principles. Id. at 195. The Court viewed the
separation of powers issue in Vasquez to be “similar to that resolved in Lagares,” and
concluded that “the same interpretation is appropriate.” Id. at 196. It construed the
provision to preserve judicial authority to reject a plea bargain or post-conviction
agreement that waived, or did not waive, the statutory parole disqualifier in the event that
the prosecutor’s discretion was exercised in an arbitrary or capricious manner. In the
wake of Vasquez, the Attorney General issued Guidelines for the drug offense sentencing
statutes that the Court considered in that decision. (pp. 23-26)

6. In State v. Brimage, the Court held that the Guidelines issued in response to Vasquez
fell short of the mark, 153 N.J. 1, 14-15 (1998), and ordered the Attorney General
promulgate “new plea offer guidelines, which all counties must follow,” id. at 24-25. It
directed that the revised guidelines “specify permissible ranges of plea offers for
particular crimes” and that they be “more explicit regarding permissible bases for upward
and downward departures.” Id. at 25. “[T]o permit effective judicial review,” the Court
required that prosecutors “state on the record their reasons for choosing to waive or not to
waive the mandatory minimum period of parole ineligibility specified in the statute,” and
their reasons for any departure from the guidelines. Ibid. (pp. 26-28)

7. The JLA Guidelines that govern plea bargaining pursuant to N.J.S.A. 2C:14-2(d)
satisfy Lagares, Vasquez, and Brimage, with one necessary addition: they should be
amended to instruct prosecutors to provide the sentencing court with a statement of
reasons for a decision to offer a defendant, in a plea agreement, a term of incarceration or
a term of parole ineligibility between fifteen and twenty-five years. Such a statement is
essential to effective judicial review for the arbitrary and capricious exercise of
prosecutorial discretion under N.J.S.A. 2C:14-2(d). The Court recognizes that the
statement of reasons may implicate confidential information regarding the victim and
members of the victim’s immediate family. In the event that a prosecutor concludes that
it is necessary in a given case to reveal such confidential information in a statement of
reasons, the court should hold an in camera hearing to consider that information. In this
case, the prosecutor did not provide the sentencing court with a statement of reasons for
his decision to offer defendant a twenty-year term of incarceration with a twenty-year
period of parole ineligibility. On remand, the prosecutor should provide such a statement
of reasons to the sentencing court. The court should review whether the prosecutor’s
exercise of discretion was arbitrary and capricious. (pp. 28-32)

The matter is remanded to the sentencing court for further proceedings.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-
VINA, SOLOMON, and TIMPONE join in JUSTICE PATTERSON’S opinion.

3
 SUPREME COURT OF NEW JERSEY
A-28 September Term 2018
081201

State of New Jersey,

Plaintiff-Respondent,

v.

A.T.C.,

Defendant-Appellant.

On certification to the Superior Court,
Appellate Division, whose opinion is reported at
454 N.J. Super. 235 (App. Div. 2018).

Argued Decided
April 23, 2019 August 8, 2019

John Douard, Assistant Deputy Public Defender, argued
the cause for appellant (Joseph E. Krakora, Public
Defender, attorney; John Douard, of counsel and on the
briefs).

Jennifer E. Kmieciak, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Jennifer E. Kmieciak, of counsel and
on the briefs, and Jana Robinson, Deputy Attorney
General, on the briefs).

JUSTICE PATTERSON delivered the opinion of the Court.

1
 The Jessica Lunsford Act (JLA), L. 2014, c. 7, § 1 (codified at N.J.S.A.

2C:14-2(a), (d)) imposes a term of incarceration of twenty-five years to life,

with a period of parole ineligibility of at least twenty-five years, on an

offender convicted of an aggravated sexual assault in which the victim is less

than thirteen years old. N.J.S.A. 2C:14-2(a)(1). The statute permits a

prosecutor, “in consideration of the interests of the victim,” to waive the

twenty-five-year mandatory minimum and offer the defendant a negotiated

plea agreement in which the term of incarceration and the period of parole

ineligibility may not be less than fifteen years. N.J.S.A. 2C:14-2(d). The

sentencing court may accept that negotiated plea agreement, and if it does so,

it must sentence the defendant in accordance with that agreement. The

Attorney General has issued the Uniform Plea Negotiation Guidelines to

Implement the Jessica Lunsford Act, P.L. 2014, c. 7 (May 29, 2014), https://

www.state.nj.us/lps/dcj/agguide/lunsford_act.pdf (JLA Guidelines), which

governs the exercise of prosecutorial discretion under the statute.

In this appeal, we consider defendant A.T.C.’s facial constitutional

challenge, premised on separation of powers principles, to the JLA. Pursuant

to a plea agreement that the prosecutor offered in accordance with N.J.S.A.

2C:14-2(d), which called for a reduced term of twenty years’ incarceration and

2
twenty years’ parole ineligibility, defendant pled guilty to a charge of

aggravated sexual assault of a child less than thirteen years of age.

Prior to sentencing, defendant moved to modify his sentence, arguing

that he should have been sentenced to fifteen years of incarceration rather than

twenty years. He contended that the JLA and the JLA Guidelines violated the

separation of powers doctrine. Defendant asserted that he should be exempt

from sentencing under the JLA, or in the alternative, the JLA should be

construed to authorize the court to sentence him to a term of incarceration as

low as fifteen years. Rejecting that argument, the sentencing court denied the

motion to modify the sentence. The Appellate Division affirmed that

determination. State v. A.T.C., 454 N.J. Super. 235, 250-54 (App. Div. 2018).

We hold that the JLA does not violate separation of powers principles

provided that (1) the State presents a statement of reasons explaining the

departure from the twenty-five year mandatory minimum sentence specified in

N.J.S.A. 2C:14-2(a), and (2) the sentencing court reviews the prosecutor’s

exercise of discretion to “protect against arbitrary and capricious prosecutorial

decisions.” State v. Vasquez, 129 N.J. 189, 196 (1992). We therefore remand

the matter to the sentencing court so that the prosecutor may provide a

statement of reasons for the decision to waive N.J.S.A. 2C:14-2(a)’s twenty-

five-year term of incarceration and parole disqualifier “in consideration of the

3
interests of the victim,” and the court may determine whether that decision was

arbitrary and capricious.

I.

A.

In a 2014 investigation of internet crimes against children, the Passaic

County Internet Crime Task Force concluded that defendant had made

computer files containing child pornography available for other users of file-

sharing services to download. Police officers executed a search warrant at the

home that defendant had shared for seven years with his girlfriend and her

minor daughter and found child pornography on defendant’s computer.

Defendant was arrested and charged with four counts of second-degree

distribution of child pornography, contrary to N.J.S.A. 2C:24-4(b)(5)(a)(i), and

four counts of third-degree possession of child pornography, contrary to

N.J.S.A. 2C:24-4(b)(5)(b). Defendant admitted that his computer files

included pornographic videos of his girlfriend’s daughter and that he had

recorded those videos on a number of occasions beginning when the child was

ten years old.

The victim, then twelve years old, told police that defendant had been

sexually abusing her since she was eight years old. She stated that defendant,

ignoring her objections, had touched her vagina many times. Some of the

4
videos found in defendant’s computer files show defendant touching the

victim’s vagina while she audibly implores him to leave her alone.

Defendant waived his right to indictment and a trial by jury. Pursuant to

a plea agreement with the State, defendant pled guilty to an accusation

charging him with first-degree sexual assault of a child under thirteen, contrary

to N.J.S.A. 2C:14-2(a)(1), an offense subject to the mandatory minimum term

of incarceration set forth in the JLA, as well as second-degree endangering the

welfare of a child by distribution of child pornography, contrary to N.J.S.A.

2C:24-4(b)(5)(a). At his plea hearing, defendant provided a factual basis for

both charges; with respect to the first-degree aggravated sexual assault of a

child under thirteen, defendant admitted that he had digitally penetrated the

victim’s vagina.

At defendant’s plea hearing, the court identified the recommended term

of incarceration for defendant’s aggravated sexual assault conviction pursuant

to the plea agreement between the State and defendant: a twenty-year term of

incarceration, with a twenty-year period of parole ineligibility. The court

confirmed defendant’s understanding that if he were sentenced in accordance

with his plea agreement, he would serve all of his twenty-year prison sentence

and would not be eligible for parole prior to the expiration of that sentence.

The court accepted defendant’s plea of guilty to both charges.

5
 After his guilty plea, but prior to the scheduled date of his sentencing,

defendant moved to modify his sentence. His motion was premised in part on

a contention that the JLA contravenes the separation of powers doctrine by

vesting in the prosecutor sentencing authority constitutionally delegated to the

judiciary. 1

The court denied defendant’s motion. It held that because sentencing

courts retain the right to reject plea agreements under the JLA in the interest s

of justice, and the JLA preserves “checks and balances” between the executive

and judicial branches, the statute did not run afoul of the separation of powers

doctrine. The court also found that defendant’s motion to modify his sentence

was premature because the motion was filed prior to sentencing.

At defendant’s sentencing hearing, the court found that the aggravating

factors outweighed the mitigating factors. 2 Defendant argued that he should

1
Defendant also argued before the sentencing court that he should be exempt
from the JLA, or sentenced to a term of incarceration shorter than that required
by the JLA, because a minor amendment to N.J.S.A. 2C:14-2 that shortly
preceded the JLA gave rise to an ambiguity in that statute and restored the pre-
JLA sentencing range for his first-degree offense. See L. 2013, c. 214, § 1; L.
2014, c. 7, § 1. The sentencing court rejected that argument, and the Appellate
Division affirmed. A.T.C., 454 N.J. Super. at 248-50. That argument is not
relevant to this appeal.
2
The court found aggravating factors one (“[t]he nature and circumstances of
the offense”), two (“[t]he gravity and seriousness of harm inflicted on the
victim”), three (“[t]he risk that the defendant will commit another offense”),
and nine (“[t]he need for deterring the defendant and others from violating the
6
not be sentenced pursuant to the JLA, or, in the alternative, that he should be

sentenced under the JLA to a fifteen-year term of incarceration, not the

twenty-year term contemplated by the plea agreement. The prosecutor argued

that the harm to the victim, among other factors, warranted the sentence

recommended by the State.

Although the State advised the sentencing court prior to defendant’s

sentencing that it had “balance[d] the relevant factors set forth by the Attorney

General Guidelines,” it did not present a statement of reasons justifying its

decision to waive the twenty-five-year term of incarceration and period of

parole ineligibility prescribed by N.J.S.A. 2C:14-2(a). There was no

discussion at either defendant’s plea hearing or his sentencing hearing as to

why the “interests of the victim” warranted a departure, or the degree of the

departure, from the JLA’s mandatory twenty-five-year term. See N.J.S.A.

2C:14-2(d).

law”). N.J.S.A. 2C:44-1(a)(1), (2), (3), (9). It also found mitigating factors
six (“[t]he defendant has compensated or will compensate the victim of his
conduct for the damage or injury that [she] sustained, or will participate in a
program of community service”), and seven (“[t]he defendant has no history of
prior delinquency or criminal activity or has led a law-abiding life for a
substantial period of time before the commission of the present offense”).
N.J.S.A. 2C:44-1(b)(6), (7).

7
 Consistent with the plea agreement, the court imposed a term of twenty

years’ incarceration, with twenty years’ parole ineligibility, for defendant’s

conviction of one count of first-degree aggravated sexual assault of a victim

less than thirteen years of age. It imposed a concurrent twenty-year term, with

twenty years’ parole ineligibility, for defendant’s conviction of distribution of

child pornography. The court also sentenced defendant to parole supervision

for life, N.J.S.A. 2C:43-6.4; mandated that he comply with the requirements of

Megan’s Law, N.J.S.A. 2C:7-1 to -23; and assessed statutory fines and

penalties, N.J.S.A. 2C:43-3.1 to -3.3, -3.6 to -3.8; N.J.S.A. 2C:14-10.

B.

Defendant appealed his convictions and the court’s order denying his

motion to modify his sentence. He asserted, among other arguments, that the

JLA is facially unconstitutional because it violates the separation of powers

doctrine.

The Appellate Division rejected defendant’s separation of powers

challenge to the JLA’s mandatory sentencing provisions. A.T.C., 454 N.J.

Super. at 250-54. It reaffirmed the Legislature’s sole authority to define what

conduct constitutes a crime and to determine punishment for that conduct,

including the imposition of mandatory sentences. Id. at 251. The Appellate

Division noted, however, that the Legislature “cannot give the prosecuting

8
attorney the authority, after a conviction, to decide what the punishment shall

be. That is a judicial function.” Id. at 251-52 (quoting State v. Todd, 238 N.J.

Super. 445, 455 (App. Div. 1990)). It deemed the allocation of authority in

plea bargaining under N.J.S.A. 2C:14-2(d) to comport with the separation of

powers doctrine because the statute “reserve[s] to the judiciary the power to

approve or reject any agreement between the defendant and the State.” Id. at

252 (alteration in original) (quoting Todd, 238 N.J. Super. at 462).

The Appellate Division vacated defendant’s sentence on grounds

irrelevant to this appeal, 3 and remanded for resentencing. Id. at 258-59.

C.

This Court granted defendant’s petition for certification, “limited to

defendant’s facial challenge to N.J.S.A. 2C:14-2(d) as unconstitutional for

3
The Appellate Division held that the sentencing court did not sufficiently
explain its reasons for finding aggravating factors one and two. A.T.C., 454
N.J. Super. at 254-58. It directed that on remand, the court “fully detail the
factual basis for each aggravating and mitigating factor, . . . consider whether
any impermissible double-counting will result, and . . . perform the required
qualitative weighing and balancing of the factors” pursuant to statutory
guidelines. Id. at 259. In addition, the Appellate Division held -- as the State
conceded -- that the twenty-year term of incarceration that the sentencing court
imposed for defendant’s conviction of second-degree endangering the welfare
of a child by distribution of child pornography, contrary to N.J.S.A. 2C:24-
4(b)(5)(a), was an illegal sentence. Id. at 258-59. The Appellate Division
directed the court on remand to resentence defendant for his endangering
conviction within the range of the ordinary five- to ten-year term of
incarceration for a second-degree offense, with a maximum period of parole
ineligibility of one-half of the prison term. Ibid.
9
violating the separation of powers doctrine.” 236 N.J. 112 (2018). The Court

stated that in addressing the question, it “may consider whether the State --

through the sentencing record and the [JLA] Guidelines -- sufficiently

explained its use of discretion to permit effective judicial review as required in

State v. Vasquez, 129 N.J. 189 (1992), such that A.T.C.’s sentence did not

violate the separation of powers doctrine.” Ibid.

II.

A.

Defendant contends that the JLA is facially unconstitutional under

Vasquez, 129 N.J. at 196, and State v. Lagares, 127 N.J. 20, 26-33 (1992),

because it authorizes a prosecutor to negotiate a plea agreement with a

recommended sentence outside the statutory range without presenting a

statement of reasons that would allow for judicial review. Defendant argues

that, in contrast to other sentencing statutes that the Court has upheld against

separation of powers challenges, the JLA affords prosecutors the discretion to

determine the precise number of years, within a range of fifteen to twenty-five

years, that a defendant will serve in prison. In his supplemental brief,

defendant contends that the JLA Guidelines cannot ensure effective judicial

review because they are based not on defendant-specific criteria, but on the

interests of the victim.

10
 Defendant urges the Court to hold the JLA unconstitutional unless the

Legislature amends it to confer on sentencing judges the discretion to sentence

defendants to any term of incarceration between fifteen and twenty-five years.

In the alternative, he asks the Court to mandate revised JLA Guidelines

requiring prosecutors to provide to the sentencing court reasons for a reduced

sentence that are amenable to judicial review.

B.

The State contends that the JLA comports with separation of powers

principles, because the JLA Guidelines properly channel prosecutorial

discretion in plea-bargaining pursuant to N.J.S.A. 2C:14-2(d). It

acknowledges that in accord with N.J.S.A. 2C:14-2(d)’s emphasis on the

victim’s interests, the JLA Guidelines differ from the Guidelines promulgated

for certain drug prosecutions pursuant to Vasquez and State v. Brimage, 153

N.J. 1, 22-23 (1998). The State asserts, however, that the JLA Guidelines

provide for effective judicial review when a prosecutor offers a defendant a

plea agreement that departs from the twenty-five-years-to-life term of

incarceration required by N.J.S.A. 2C:14-2(a). It enumerates several

applications of the JLA Guidelines factors that might prompt a prosecutor to

depart from the statutory term and are subject to judicial review.

11
 The State objects to any requirement that it disclose certain categories of

sensitive information related to a child victim when it presents a statement of

reasons to the sentencing court.

III.

A.

Pursuant to N.J.S.A. 2C:14-2(a), “[a]n actor is guilty of aggravated

sexual assault if he commits an act of sexual penetration with another person

under any one of the following circumstances.” The statute enumerates seven

circumstances under which an act of sexual penetration constitutes aggravated

sexual assault, one of which is that “[t]he victim is less than 13 years old.”

N.J.S.A. 2C:14-2(a)(1).

Before the Legislature enacted the JLA, defendants convicted of

violations of N.J.S.A. 2C:14-2(a), including those convicted of aggravated

sexual assault against a child less than thirteen years old, contrary to N.J.S.A.

2C:14-2(a)(1), were sentenced within the ten- to twenty-year range set forth in

N.J.S.A. 2C:43-6(a)(1) for first-degree offenses. N.J.S.A. 2C:14-2 (2013).

On May 15, 2014, the Legislature enacted the JLA. L. 2014, c. 7, § 1.4

The JLA significantly enhanced the sentencing exposure of defendants

4
The Legislature based New Jersey’s JLA in part on a Florida statute, the
Jessica Lunsford Act, 2005 Fla. Laws c. 28. A. Judiciary Comm. Statement to
A. 892 (Feb. 24, 2014). The Florida act, named for a nine-year-old Florida girl
12
convicted of the aggravated sexual assault of a child under thirteen years of

age. It provides in part that,

[e]xcept as otherwise provided in subsection d. of this
section, a person convicted under paragraph (1) of this
subsection shall be sentenced to a specific term of years
which shall be fixed by the court and shall be between
25 years and life imprisonment of which the person
shall serve 25 years before being eligible for parole,
unless a longer term of parole ineligibility is otherwise
provided pursuant to this Title.

[N.J.S.A. 2C:14-2(a).]

A second provision of the JLA, authorizing a reduction in N.J.S.A.

2C:14-2(a)’s enhanced mandatory minimum term of incarceration by virtue of

a negotiated plea agreement, was introduced in the Senate Committee

Substitute for Senate Bill No. 215. See S. Law & Pub. Safety Comm.

Statement to S. 215 1 (Jan. 30, 2014). As enacted, that subsection provides:

Notwithstanding the provisions of subsection a. of this
section, where a defendant is charged with a violation
under paragraph (1) of subsection a. of this section, the
prosecutor, in consideration of the interests of the
victim, may offer a negotiated plea agreement in which
the defendant would be sentenced to a specific term of

who was kidnapped, sexually assaulted, and murdered by a registered sex
offender, imposed a twenty-five-year mandatory term of imprisonment on
defendants convicted of certain sexual crimes against children and mandated
“satellite monitoring to track the location of sex offenders after release.” Ibid.
The satellite monitoring provisions of Florida’s Jessica Lunsford Act were
substantially replicated in a statute enacted by the New Jersey Legislature in
2007. Compare Fla. Stat. §§ 947.1405, 948.063, 948.11, 948.30(3), with
N.J.S.A. 30:4-123.89 to -123.99.
13
 imprisonment of not less than 15 years, during which
the defendant shall not be eligible for parole. In such
event, the court may accept the negotiated plea
agreement and upon such conviction shall impose the
term of imprisonment and period of parole ineligibility
as provided for in the plea agreement, and may not
impose a lesser term of imprisonment or parole or a
lesser period of parole ineligibility than that expressly
provided in the plea agreement. The Attorney General
shall develop guidelines to ensure the uniform exercise
of discretion in making determinations regarding a
negotiated reduction in the term of imprisonment and
period of parole ineligibility set forth in subsection a.
of this section.

[N.J.S.A. 2C:14-2(d).]

According to the Attorney General, N.J.S.A. 2C:14-2(d) was enacted in

recognition of “the need to provide an incentive for guilty defendants to plead

guilty to spare the victim from having to participate in a trial.” JLA

Guidelines at 1.

B.

As the Legislature directed, the Attorney General issued the JLA

Guidelines to the Division of Criminal Justice, for use in cases prosecuted by

the Division, and to county prosecutors. In the JLA Guidelines, the Attorney

General identified the following “factors and circumstances in consideration of

the interests of the victim”:

a. The degree of physical and emotional harm suffered
by the victim and members of the victim’s immediate
family;
14
 b. The interest of the victim and members of the
victim’s immediate family in avoiding the need to
testify at trial or a pretrial hearing;

c. The interest of the victim and members of the
victim’s immediate family in avoiding the need to listen
to testimony recounting the crime and/or its impact;

d. The immediate and long-term interest of the victim
and members of the victim’s immediate family in not
having details of the crime and its impact publicized at
a trial;

e. The interest of the victim and members of the
victim’s immediate family in the swiftest possible
resolution of the criminal matter;

f. The interest of the victim and members of the
victim’s immediate family in the certainty of conviction
resulting from a guilty plea;

g. the position of the victim, where appropriate given
his or her age, and the victim’s parent(s)/legal
guardian(s) regarding the plea agreement; and

h. the prosecutor’s assessment of the likelihood of
obtaining a guilty verdict at a trial, recognizing that an
acquittal on the aggravated sexual assault charge or
adverse rulings in pretrial motions would impact
adversely the interests of the victim and members of the
victim’s immediate family.

[JLA Guidelines at 2-3.]

The Attorney General mandated that prosecutors consider the

enumerated factors when they determine “the amount of the reduction in the

15
stipulated 25-year term of parole ineligibility.” Id. at 3.5 That determination

“is vested in the reasoned discretion of the prosecutor and latitude therefore is

afforded to reduce the stipulated sentence based upon variable factors

considering the interests of the victim.” Ibid.

In accordance with N.J.S.A. 52:4B-36, which identifies the rights of

crime victims in the criminal justice system, the JLA Guidelines require the

prosecutor to consult with the victim’s parents or legal guardians before

offering a defendant a plea agreement that reduces N.J.S.A. 2C:14-2(a)’s

twenty-five-year period of parole ineligibility. JLA Guidelines at 4. Should

the victim’s parents or legal guardians object to such a plea offer, the

Guidelines bar the prosecutor from making that offer “unless the County

Prosecutor, or [the] Director of the Division of Criminal Justice in cases

prosecuted by the Division, determines in writing that the plea offer is

5
To ensure “the greatest possible incentive” for a defendant to plead guilty
early in the proceeding, the Guidelines generally authorize prosecutors to offer
a plea agreement providing for the shortest period of parole ineligibility --
fifteen years -- “only if the defendant agrees to plead guilty before
indictment.” JLA Guidelines at 3. After indictment, a prosecutor may not
offer a plea agreement providing for a term of parole ineligibility less than
eighteen years, unless the county prosecutor, or the Director of the Division of
Criminal Justice in cases prosecuted by the Division, “determines in writing
that there has been a material change in circumstances that, considering the
factors [enumerated in the JLA Guidelines], justifies a post-indictment plea
offer that provides for a term of parole ineligibility between 15 and 18 ye ars.”
Ibid.
16
appropriate and in the best interests of the victim notwithstanding the

objection.” Ibid. The prosecutor must inform the court of any such objection.

Ibid.

The JLA and the Attorney General’s JLA Guidelines recognize the

court’s discretion to accept or reject a plea agreement entered into by the

defendant and the State. See N.J.S.A. 2C:14-2(d) (providing that the court

“may” accept the negotiated plea agreement); JLA Guidelines at 1 (“If the

court accepts the negotiated disposition, . . . .” (emphasis added)). The JLA

Guidelines, however, do not require the prosecutor to provide to the court a

statement of reasons justifying the proposed reduction of the twenty-five-year

term of incarceration and period of parole ineligibility imposed by N.J.S.A.

2C:14-2(a). See N.J.S.A. 2C:14-2(a), (d); JLA Guidelines. Accordingly, no

statutory provision or Guideline ensures that the court is informed of the

prosecutor’s reasoning when it determines whether to accept or reject a plea

agreement offered pursuant to N.J.S.A. 2C:14-2(a).

IV.

A.

Against that backdrop, we consider defendant’s separation of powers

challenge to the JLA.

17
 Defendant “must sustain a heavy burden in order to succeed in [his]

assertion of the invalidity of the challenged legislation.” State v. Trump

Hotels & Casino Resorts, 160 N.J. 505, 526 (1999). “We will give, as we

must, deference to any legislative enactment unless it is unmistakably shown

to run afoul of the Constitution.” Lewis v. Harris, 188 N.J. 415, 459 (2006).

The foundation for the presumption of constitutionality that attaches to every

statute

is solid and clear: the challenged law “represents the
considered action of a body composed of popularly
elected representatives,” and, as Justice Oliver Wendell
Holmes admonished, “it must be remembered that
legislatures are ultimate guardians of the liberties and
welfare of the people in quite as great a degree as the
courts.”

[State v. Buckner, 223 N.J. 1, 14 (2015) (quoting N.J.
Sports & Exposition Auth. v. McCrane, 61 N.J. 1, 8-9
(1972)).]

When we conduct appellate review in a constitutional challenge to a

statute, “we owe no deference to either the trial court’s or Appellate Division’s

conclusions of law.” State v. Pomianek, 221 N.J. 66, 80 (2015); see also

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378

(1995). “Our review is therefore de novo.” Pomianek, 221 N.J. at 80.

18
 B.

1.

The New Jersey Constitution prescribes the separation of powers among

the three branches of government:

The powers of the government shall be divided among
three distinct branches, the legislative, executive, and
judicial. No person or persons belonging to or
constituting one branch shall exercise any of the powers
properly belonging to either of the others, except as
expressly provided in this Constitution.

[N.J. Const. art. III, ¶ 1.]

New Jersey’s constitutional provision for separation of powers “was

designed to ‘maintain the balance between the three branches of government,

preserve their respective independence and integrity, and prevent the

concentration of unchecked power in the hands of any one branch.’”

Commc’ns Workers of Am., AFL-CIO v. Florio, 130 N.J. 439, 449 (1992)

(quoting David v. Vesta Co., 45 N.J. 301, 326 (1965)). Nonetheless, as the

Court has explained, “the doctrine requires not an absolute division of power

but a cooperative accommodation among the three branches of government.”

Ibid.; see also In re P.L. 2001, Chapter 362, 186 N.J. 368, 379 (2006) (holding

that the separation of powers doctrine exists “not to create three ‘watertight’

governmental compartments, stifling cooperative action among the executive,

legislative and judicial branches,” but “to guarantee a system in which one
19
branch cannot ‘claim[] or receiv[e] an inordinate power’” (alterations in

original) (quoting Commc’ns Workers, 130 N.J. at 450)); Brown v. Heymann,

62 N.J. 1, 11 (1972) (“[T]he doctrine necessarily assumes the branches will

coordinate to the end that government will fulfill its mission.”).

2.

The separation of powers question considered in this appeal arises in the

context of criminal sentencing, a function that “does not fit neatly within a

single branch of government.” Lagares, 127 N.J. at 27.

The Legislature is constitutionally empowered to “define[] crimes and

establish[] the appropriate punishment for their commission,” and that

authority “includes the ability to enact mandatory-sentencing statutes that

eliminate any opportunity for a lesser punishment.” Ibid.; see also State v.

Cannon, 128 N.J. 546, 563 (1992) (noting that the Legislature is empowered to

“mandate imprisonment for certain crimes, leaving no judicial discretion”).

The sentencing prerogatives of the prosecutor, a member of the

executive branch, include “determin[ing] the extent of a defendant’s

sentencing exposure when deciding what charges will be brought.” Lagares,

127 N.J. at 27; see also State v. Moorer, 448 N.J. Super. 94, 104 (App. Div.

2016) (“[T]he selection of the charge rests in the sound discretion of the

20
prosecutor.” (quoting State v. D.V., 348 N.J. Super. 107, 115-16 (App. Div.

2002), aff’d o.b., 176 N.J. 338 (2003))).

Notwithstanding the important roles of the coordinate branches in

sentencing, however, the determination of “[a] criminal sentence is always and

solely committed to the discretion of the trial court to be exercised within the

standards prescribed by the Code of Criminal Justice.” State v. Hess, 207 N.J.

123, 151 (2011) (quoting State v. Warren, 115 N.J. 433, 447 (1989)); see also

Lagares, 127 N.J. at 27-28.

In Lagares, this Court considered a defendant’s separation of powers

challenge to a statute that delegated sentencing discretion to prosecutors in

certain drug cases. 127 N.J. at 24. Because the defendant had previously been

convicted of predicate drug offenses, he was eligible to be sentenced for

subsequent drug convictions to an extended term of incarceration under

N.J.S.A. 2C:43-6(f). Ibid. That statute mandated the imposition of an

extended term “upon application of the prosecuting attorney . . .

notwithstanding that extended terms are ordinarily discretionary with the

court.” Ibid. (emphasis removed) (quoting N.J.S.A. 2C:43-6(f)).

The Court agreed with the defendant in Lagares that, in the absence of

guidelines or “any avenue for effective judicial review,” N.J.S.A. 2C:43-6(f)

would be unconstitutional. Id. at 31. It explained:

21
 Where the Legislature has permitted the executive to
select defendants for enhanced punishment or favorable
treatment, this Court has generally required that
decision-making be carried out in a fashion that limits
potential arbitrariness. In addition, we have required
that the judiciary retain the power to review
prosecutorial decisions to avoid abuses of discretion.

[Id. at 28.]

Noting its obligation “to so construe the statute as to render it

constitutional if it is reasonably susceptible to such interpretation,” the Court

imposed three requirements. Id. at 32 (quoting State v. Profaci, 56 N.J. 346,

350 (1970)). First, the Court interpreted N.J.S.A. 2C:43-6(f) “to require that

guidelines be adopted to assist prosecutorial decision-making with respect to

applications for enhanced sentences” pursuant to the statute. Ibid.6 Second,

“to permit effective review of prosecutorial sentencing decisions,” the Court

required prosecutors to “state on the trial court record the reasons for seeking

an extended sentence.” Ibid. Finally, the Court concluded that the Legislature

had not intended “to circumvent the judiciary’s power to protect defendants

from arbitrary application of enhanced sentences” and thus confirmed that “an

6
The Court noted that the guidelines “should reflect the legislative intent [in
N.J.S.A. 2C:43-6(f)] to make extended sentencing of repeat drug offenders the
norm rather than the exception,” but cautioned prosecutors that “the
Legislature did not mandate extended sentences, recognizing that in certain
circumstances enhanced punishment may be unwarranted.” Id. at 32.
22
extended term may be denied or vacated” upon a showing that the prosecutor’s

decision to seek that sentence was arbitrary and capricious. Id. at 33.

Following Lagares, the Attorney General issued to the Director of the

Division of Criminal Justice and all county prosecutors the Directive

Implementing Guidelines for Determining Whether to Apply for an Extended

Term Pursuant to N.J.S.A. 2C:43-6(f) (Apr. 20, 1992), https://

dspace.njstatelib.org/xmlui/bitstream/handle/10929/33900/

njkfn2383.2a35a21992.pdf?sequence=1&isAllowed=y. Those Guidelines

“govern[ed] the exercise of prosecutorial discretion under N.J.S.A. 2C:43 -

6(f).” Brimage, 153 N.J. at 13 n.1.

In contrast to Lagares, in which the defendant’s sentence followed his

conviction at trial, the Court’s decision in Vasquez addressed prosecutorial

discretion in plea bargaining pursuant to Rule 3:9-3, and is thus directly

relevant to this appeal.

Our case law and the governing court rule assign distinct roles to the

prosecutor and the court in plea bargaining. When a prosecutor and defense

counsel consider a plea agreement, they “engage in discussions about [pleas

and sentences] as will promote a fair and expeditious disposition of the case.”

R. 3:9-3. “The prosecutor’s function in this connection is strictly limited to an

agreement to recommend a form of leniency, to which recommendation the

23
court in its discretion after being made aware of the full situation would give

due consideration.” Warren, 115 N.J. at 448 (emphasis removed) (quoting

State v. Taylor, 49 N.J. 440, 455 (1967)). With limited exceptions enumerated

in the court rule, “the judge shall take no part in such discussions.” R. 3:9-3;

see Warren, 115 N.J. at 448 (“Strict limitations on judicial participation in plea

negotiations relate to the concern that judicial neutrality and objectivity must

be preserved.”); State v. Williams, 277 N.J. Super. 40, 48 (App. Div. 1994)

(“[A] judge may not participate in plea negotiations . . . especially over the

objection of the prosecutor.”).

The judge, however, retains the exclusive authority to sentence the

defendant; “[e]ven when the State and a defendant have entered into a plea

agreement, a court in discharging its sentencing duties may not simply accept

the arrangement without reviewing its factual support and the circumstances

surrounding its formation.” Lagares, 127 N.J. at 28.

In Vasquez, the Court considered the separation of powers implications

of plea bargaining under N.J.S.A. 2C:35-12, a provision of the Comprehensive

Drug Reform Act (CDRA), N.J.S.A. 2C:35-1 to 36A-1, that substantially

expanded prosecutorial discretion in drug prosecution plea agreements. 129

N.J. at 197-209. N.J.S.A. 2C:35-12 authorized the prosecutor to waive the

statutory period of parole ineligibility as part of a negotiated plea agreement or

24
post-conviction agreement and barred the sentencing court from imposing “a

lesser term of imprisonment[] [or a lesser] period of parole ineligibility . . .

than that expressly provided for under the terms of the plea or post-conviction

agreement.” Id. at 198 (quoting N.J.S.A. 2C:35-12).

The appeal in Vasquez arose from a plea agreement in which the

prosecutor waived the three-year period of parole ineligibility mandated by

N.J.S.A. 2C:35-7 for certain drug offenses committed in a school zone, with

the stipulation that if the defendant violated probation and appeared before the

court to be sentenced for that offense, the State would not waive the mandatory

sentencing provisions of the statute. Id. at 192. The defendant violated his

probation and was sentenced to a four-year custodial term with three years’

parole ineligibility. Id. at 193. The Appellate Division vacated the sentence,

and the Court granted the State’s petition for certification. Ibid.

The defendant argued before this Court that the Legislature’s grant of

prosecutorial discretion in N.J.S.A. 2C:35-12 contravened separation of

powers principles. Id. at 195. The Court viewed the separation of powers

issue in Vasquez to be “similar to that resolved in Lagares,” and concluded

that “the same interpretation is appropriate.” Id. at 196. It construed N.J.S.A.

2C:35-12 to preserve judicial authority to reject a plea bargain or post-

conviction agreement that waived, or did not waive, the statutory parole

25
disqualifier in the event that the prosecutor’s discretion was exercised in an

arbitrary or capricious manner:

Judicial oversight is mandated to protect against
arbitrary and capricious prosecutorial decisions. To
that end, the prosecutor should state on the record the
reasons for the decision to waive or the refusal to waive
the parole disqualifier. A defendant who shows clearly
and convincingly that the exercise of discretion was
arbitrary and capricious would be entitled to relief.
Those standards prevent the legislative goal of
uniformity in sentencing from being undermined by
unreviewable prosecutorial discretion.

So interpreted, the statute does not violate the
doctrine of separation of powers, and we reject
defendant’s contrary contention.

[Id. at 196-97 (citations omitted).]

In the wake of Vasquez, the Attorney General issued plea-bargaining

Guidelines for the drug offense sentencing statutes that the Court considered in

that decision. Brimage, 153 N.J. at 13. In Brimage, the Court held that the

Guidelines issued in response to Vasquez fell short of the mark. Id. at 14-15.

It ruled that although the Attorney General expressly sought “to ensure a

uniform, consistent and predictable sentence for a given offense,” id. at 13

(emphasis removed), the Guidelines improperly “direct[ed] each county

prosecutor’s office to adopt and implement its own written policy governing

plea and post-conviction agreements, using the Guidelines as a model,” and

authorized county-specific “standardized plea offers for typical cases and
26
offenders,” id. at 14-15. To the Court, a 1997 Supplemental Directive from

the Attorney General to the county prosecutors similarly “fail[ed] to limit the

discretion authorized” by the prior Guidelines and “thus maintain[ed] the

resulting intercounty disparity.” Id. at 16. In the Court’s view,

[t]he intercounty disparity authorized by the Attorney
General’s Guidelines, both before and after their
amendment, violates the goals of uniformity in
sentencing and, thus, not only fails on statutory
grounds, but also threatens the balance between
prosecutorial and judicial discretion that is required
under Vasquez, 129 N.J. 189. The Guidelines fail to
appropriately channel prosecutorial discretion, thus
leading to arbitrary and unreviewable differences
between different localities.

[Id. at 22-23.]

To correct that sentencing disparity, the Court ordered in Brimage that

the Attorney General promulgate “new plea offer guidelines, which all

counties must follow.” Id. at 24-25. It directed that the revised guidelines

“specify permissible ranges of plea offers for particular crimes” and that they

be “more explicit regarding permissible bases for upward and downward

departures.” Id. at 25. “[T]o permit effective judicial review,” the Court

required that prosecutors “state on the record their reasons for choosing to

waive or not to waive the mandatory minimum period of parole ineligibility

specified in the statute,” and their reasons for any departure from the

guidelines. Ibid.
27
 Following the Court’s decision in Brimage, the Attorney General issued

uniform Guidelines -- now known as the “Brimage Guidelines” -- for

prosecutors negotiating plea agreements and post-conviction agreements under

N.J.S.A. 2C:35-12. See Revised Attorney General Guidelines for Negotiating

Cases under N.J.S.A. 2C:35-12 (July 15, 2004), https://www.state.nj.us/lps/

dcj/agguide/directives/brimage_all.pdf. In the Brimage Guidelines, the

Attorney General provided detailed instructions to prosecutors regarding the

exercise of their discretion in tendering plea offers under N.J.S.A. 2C:35 -12

that waive or reduce otherwise mandatory terms of imprisonment and parole

ineligibility for certain drug offenses.

C.

We derive three core principles from the Court’s resolution of separation

of powers challenges to statutes granting sentencing discretion to prosecutors

in Lagares, Vasquez, and Brimage.

First, the Attorney General must promulgate uniform statewide

guidelines designed to channel that discretion and minimize sentencing

disparity between counties, taking into account the legislative objective in the

sentencing statute. Brimage, 153 N.J. at 23; Vasquez, 129 N.J. at 195;

Lagares, 127 N.J. at 31-32.

28
 Second, in order to facilitate effective judicial review, the prosecutor

must provide a written statement of reasons for his or her exercise of

prosecutorial discretion. Brimage, 153 N.J. at 25; Vasquez, 129 N.J. at 196;

Lagares, 127 N.J. at 32.

Third, the sentencing court maintains oversight to ensure that

prosecutorial discretion is not exercised in an arbitrary and capricious manner.

Vasquez, 129 N.J. at 195-96; Lagares, 127 N.J. at 33.

Those three procedural safeguards allow for effective judicial review of

the prosecutor’s exercise of discretion granted by the Legislature, thus

satisfying separation of powers principles. As we recently noted in the context

of prosecutorial decisions whether to waive mandatory minimum sentences

pursuant to the Graves Act, N.J.S.A. 2C:43-6.2, courts are in a position to

conduct meaningful judicial review where “prosecutors are guided by

standards, inform defendants of the basis for their decisions, and are subject to

judicial oversight.” State v. Benjamin, 228 N.J. 358, 373 (2017).

D.

The JLA Guidelines that govern plea bargaining pursuant to N.J.S.A.

2C:14-2(d) satisfy Lagares, Vasquez, and Brimage, with one necessary

addition: a requirement that prosecutors provide a statement of reasons for a

29
decision to offer a plea bargain in which the term of incarceration or period of

parole ineligibility is less than that prescribed in N.J.S.A. 2C:14-2(a).

The Guidelines properly apply to all county prosecutors and to the

Division of Criminal Justice when it handles a JLA case; they do not authorize

prosecutors’ offices to develop county-specific standards and procedures, as

did the Guidelines rejected in Brimage, 153 N.J. at 13-16.7 They provide clear

and practical guidance for prosecutors charged with making plea-bargaining

determinations in accordance with N.J.S.A. 2C:14-2(a). Moreover, the victim-

centered factors identified in section 1 of the JLA Guidelines reflect the

Legislature’s focus on “the interests of the victim” in N.J.S.A. 2C:14-2(d).

They are consonant with legislative intent.

The JLA Guidelines should be amended to instruct prosecutors to

provide the sentencing court with a statement of reasons for a decision to offer

a defendant, in a plea agreement, a term of incarceration or a term of parole

7
At oral argument, counsel for defendant expressed concern about the
uniform application of the JLA throughout the State. We decline to address
defendant’s uniformity argument, which was not asserted before the sentencing
court or the Appellate Division, and is not supported by an adequate record.
We also recognize the difficulty of comparing results across vicinages becaus e
the amount of the sentence reduction in a given case depends heavily on the
victim’s situation and interests. That said, the Attorney General is free to
review and enhance section 2 of the JLA Guidelines (“Amount of Reduction”)
to further channel the discretion of prosecutors across the State and avoid
disparate results.

30
ineligibility between fifteen and twenty-five years. Such a statement is

essential to effective judicial review for the arbitrary and capricious exercise

of prosecutorial discretion under N.J.S.A. 2C:14-2(d).

We recognize that in the JLA setting, the statement of reasons may

implicate mental and physical health records and other confidential

information regarding the victim and members of the victim’s immediate

family. See JLA Guidelines § 1 (a)-(f) (identifying factors that may relate to

the mental and physical health of the victim or members of his or her

immediate family). In the statement of reasons, the prosecutor ordinarily need

not disclose confidential, sensitive information about the victim or members of

his or her immediate family including, for example, information relating to

mental or physical health; a general representation as to the potential impact of

a trial should provide the court with an adequate basis for judicial review. In

the event that a prosecutor concludes that it is necessary in a given case to

reveal such confidential information in a statement of reasons, the court should

hold an in camera hearing to consider that information. See Pressler &

Verniero, Current N.J. Court Rules, cmts. 2.1.3 and 2.2 on R. 1:2-1 (2019).

In this case, the prosecutor did not provide the sentencing court with a

statement of reasons for his decision to offer defendant a twenty-year term of

incarceration with a twenty-year period of parole ineligibility. On remand, the

31
prosecutor should provide such a statement of reasons to the sentencing court.

The court should review whether the prosecutor’s exercise of discretion was

arbitrary and capricious. If the sentencing court finds that the prosecutor’s

action was arbitrary and capricious, it should vacate its order denying

defendant’s motion to modify his sentence; the court should then permit

defendant to withdraw his guilty plea as to first-degree aggravated sexual

assault or renegotiate his plea agreement. If the sentencing court does not find

the prosecutor’s action to be arbitrary and capricious, it should resentence

defendant as directed by the Appellate Division’s decision, which we leave

undisturbed aside from the single issue as to which we granted certification.

See A.T.C., 454 N.J. Super. at 259; accord supra note 3.

V.

We hold that the JLA does not violate the separation of powers doctrine,

provided that the State presents a statement of reasons explaining its decision

to depart from the twenty-five year mandatory minimum sentence specified in

N.J.S.A. 2C:14-2(a), and the court reviews the prosecutor’s exercise of

discretion to determine whether it was arbitrary and capricious. So that the

standard we adopt today may be applied in this matter, we remand to the

sentencing court for further proceedings in accordance with this opinion.

32
 CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE
PATTERSON’S opinion.

33