State of New Jersey v. Mwanza Fitzpatrick

128 A.3d 1114, 443 N.J. Super. 316

• Court: New Jersey Superior Court Appellate Division
• Decided: December 28, 2015
• Docket: A-2477-14T3 A-2478-14T3
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NOS. A-2477-14T3 A-2478-14T3

STATE OF NEW JERSEY,

Plaintiff-Appellant, APPROVED FOR PUBLICATION

v. December 28, 2015

APPELLATE DIVISION MWANZA FITZPATRICK,

Defendant-Respondent. __________________________

Plaintiff-Appellant,

v.

KEEYAN BRISTER,

Argued September 30, 2015 – Decided December 28, 2015

Before Judges Fuentes, Koblitz and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 14-02-00175 (A-2477-14) and 14-05-00620 (A-2478-14).

Christopher Dize, Assistant Prosecutor, argued the cause for appellant (Andrew C. Carey, Middlesex County Prosecutor, attorney; Mr. Dize, of counsel and on the briefs). Stephen P. Hunter, Assistant Deputy Public Defender, argued the cause for respondents (Joseph E. Krakora, Public Defender, attorney; Mr. Hunter, of counsel and on the briefs).

The opinion of the court was delivered by

GILSON, J.S.C. (temporarily assigned).

These appeals, consolidated for purposes of this opinion,

present the jurisdictional question of what is the time within

which the State can appeal the denial of a drug offender

restraining order sought in connection with a sentence. We hold

that the governing statute, N.J.S.A. 2C:35-5.7(k), requires such

appeals to be filed within ten days of the date of sentencing.

Our holding follows from a reading of the language of the

statute, the legislative purpose in enacting the statute, and

the relevant legislative history. Because the State failed to

file its notices of appeal in these matters within the ten-day

period, we dismiss both appeals for lack of jurisdiction.

I.

The relevant facts and procedural histories are not in

dispute and are established by the record. Defendants Mwanza

Fitzpatrick and Keeyan Brister were separately indicted for

separate incidents of alleged second and third degree drug

offenses. Both defendants applied for special drug court

probation pursuant to N.J.S.A. 2C:35-14, were found clinically

2 A-2477-14T3 and legally eligible, and were recommended for acceptance into

the program. Both defendants then pled guilty to third degree

distribution of heroin within 1000 feet of school property in

violations of N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a)(1).

As part of the plea agreements, the State agreed to

recommend that defendants be sentenced to five years of special

drug court probation as an alternative sentence to five years in

prison with thirty months of parole ineligibility. Because both

defendants were subject to mandatory extended terms, those

alternative sentences were in accordance with the Brimage

Guidelines1 and N.J.S.A. 2C:43-6(f).

At sentencing, the State for the first time informed the

court and counsel that the State would request a drug offender

restraining order (DORO) in accordance with N.J.S.A. 2C:35-

5.7(h). The State had not stated in the plea agreements that a

DORO would be a condition of the sentences. Defendants objected

and the judge adjourned sentencing and directed the State and

defense counsel to brief the issue. Thereafter, defendants

moved to preclude the imposition of DOROs, and all parties

submitted briefs and certifications.

On December 2, 2014, the trial court heard oral arguments

and denied the State's application for DOROs against both

1 State v. Brimage, 153 N.J. 1 (1998).

3 A-2477-14T3 defendants. That same day, the trial court sentenced defendants

to five years of special drug court probation as an alternative

sentence to a prison term. On December 9, 2014, the trial court

entered two orders granting defendants' motions to preclude the

imposition of DOROs. On December 23, 2014, the State filed

notices to appeal the denials of the DOROs.

The State seeks to appeal the trial court's denial of the

DOROs arguing that the trial court erred by using the wrong

standard. Defendants counter that the State filed its notices

of appeal late and that this court lacks jurisdiction to hear

either appeal. Defendants also argue, in the alternative, that

(1) the Drug Offender Restraining Order Act is unconstitutional,

(2) the imposition of DOROs would violate the plea agreements,

and (3) the trial court properly denied the applications for

DOROs using the correct legal standard. Because the State

failed to file its notices of appeal within the governing ten-

day period, we dismiss both appeals for lack of jurisdiction,

and we do not reach the substance of any party's arguments.

II.

To place the jurisdictional issue in context, we briefly

describe the Drug Offender Restraining Order Act of 1999,

N.J.S.A. 2C:35-5.4 to -5.10 (the Act). The Act is designed to

enhance the quality of life and protect the public in areas

4 A-2477-14T3 plagued by illegal drug activity. N.J.S.A. 2C:35-5.5(b). It

fulfills its purpose by restraining drug offenders from

returning to locations where they had engaged in illegal drug

manufacturing or distribution activities. N.J.S.A. 2C:35-

5.5(d). Accordingly, the Act established procedures for issuing

restraining orders against persons charged with or convicted of

certain drug-related offenses. N.J.S.A. 2C:35-5.6, -5.7.

Specifically, the Act empowers law enforcement officers and

prosecutors to apply for a restraining order at two different

times: (1) when the person, including a juvenile, is charged

with drug offenses, N.J.S.A. 2C:35-5.7(a)-(d), and (2) when a

drug offender is convicted or adjudicated delinquent, N.J.S.A.

2C:35-5.7(h). The Act also spells out the grounds on which

defendants can apply for an exception to such restraining orders

and the basis for the court to grant such exceptions. N.J.S.A.

2C:35-5.7(e). In that regard, the Act provides that the "court

may forego issuing a restraining order . . . only if the

defendant establishes" certain legitimate needs to be in the

place from which the drug offender is sought to be restrained.

Ibid. Those restriction exemptions are limited and must be

established "by clear and convincing evidence." Ibid.

Furthermore, the Act gives the court the discretion to craft

5 A-2477-14T3 "modifications to permit the person to enter the area during

specified times for specified purposes." N.J.S.A. 2C:35-5.7(f).

The Act also provides procedures for a defendant to modify

a DORO, and for the State to appeal the denial of a DORO sought

in connection with the sentencing of a drug offender. N.J.S.A.

2C:35-5.7(k).

III.

The question of when the State can appeal the denial of a

DORO sought in connection with the sentencing of a drug offender

is an issue of first impression. The language authorizing such

appeals is set forth in subsection k of N.J.S.A. 2C:35-5.7: "If

the court does not issue a restraining order, the sentence

imposed by the court for a criminal offense as defined in

subsection b. of this section shall not become final for ten

days in order to permit the appeal of the court's findings by

the prosecution." A plain reading of this language limits the

State's right to appeal to ten days from imposition of the

sentence. See State v. Olivero, 221 N.J. 632, 639 (2015)

("[T]he goal of statutory interpretation is to ascertain and

effectuate the Legislature's intent." (quoting Murray v.

Plainfield Rescue Squad, 210 N.J. 581, 592 (2012))); In re

Registrant N.B., 222 N.J. 87, 98 (2015) ("[T]he best indicator

of that intent is the plain language chosen by the Legislature."

6 A-2477-14T3 (alteration in original) (quoting State v. Gandhi, 201 N.J. 161,

176 (2010))).

The State argues that the phrase "a criminal offense as

defined in subsection b. of this section" limits N.J.S.A. 2C:35-

5.7(k) to apply only to appeals pertaining to N.J.S.A. 2C:35-

5.7(b). Thus, the State argues the ten-day period in subsection

k does not apply to an appeal filed in connection with the

denial of a DORO sought under subsection h, which is the

provision authorizing a DORO after a conviction. See N.J.S.A.

2C:35-5.7(h). There are several flaws with the State's proposed

interpretation.

First, such an interpretation is inconsistent with the

language of the Act. Subsection b of N.J.S.A. 2C:35-5.7

addresses the procedure for the State to seek a DORO after a

person is charged with a drug offense on a summons.

Consequently, subsection b does not deal with a DORO sought

after conviction. Subsection b, moreover, does not define "a

criminal offense." That definition is found in N.J.S.A. 2C:35-

5.6(c).

Second, if subsection k does not apply, then the State

would have no right to appeal at all. "Sentencing appeals by

the State implicate the prohibitions against multiple punishment

incorporated in the double jeopardy provisions of the Federal

7 A-2477-14T3 and State Constitutions." State v. Johnson, 376 N.J. Super.

163, 171 (App. Div.) (citing State v. Roth, 95 N.J. 334, 342-43

(1984)), certif. denied, 183 N.J. 592 (2005). Consequently, the

State can appeal the sentence of a criminal defendant only in

two circumstances: (1) if a statute expressly authorizes such an

appeal, and (2) if the sentence is illegal. Roth, supra, 95

N.J. at 342-43. In Roth, our Supreme Court traced the history

of the government's right to appeal criminal sentences, and held

that because of constitutional double jeopardy concerns, "the

government cannot take an appeal in a criminal case absent

express statutory authority." Id. at 341-43; see also United

States v. DiFrancesco, 449 U.S. 117, 131-32, 101 S. Ct. 426,

434-35, 66 L. Ed. 2d 328, 342-43 (1980) (holding that the

government could appeal a criminal sentence without violating

the Double Jeopardy Clause when Congress expressly authorized

such an appeal); State v. Veney, 327 N.J. Super. 458, 461 (App.

Div. 2000) ("[R]estrictions of the State's right to appeal rest

upon the principle that appeals of sentences implicate the

Double Jeopardy Clauses of the federal and state constitutions

. . . ."); R. 2:3-1 (identifying the limited grounds when the

State can appeal in a criminal action).

Here we are not dealing with an illegal sentence. Thus, we

return to the language of subsection k, which expressly allows

8 A-2477-14T3 the State to appeal. Without the phrase "for a criminal offense

as defined in subsection b. of this section," the meaning of the

language of subsection k is clear: the ten-day restriction

applies to the denial of a DORO sought in connection with a

sentence. Accordingly, the question is what does the phrase

mean. The only logical interpretation is that the phrase

references the provision of the Act that defines a criminal

offense covered by the Act. As already pointed out, the

definition of the crimes covered by the Act is found in N.J.S.A.

2C:35-5.6(c). That interpretation is also consistent with the

plain reading of the phrase as it references a "criminal

offense." Such an interpretation is also consistent with the

intent of the statute. Subsection k of N.J.S.A. 2C:35-5.7

clearly authorizes the State to appeal, within ten days, the

denial of a DORO sought in connection with the sentence of a

drug offender.

The Legislature clearly wanted to give prosecutors the

right to appeal. Indeed, in the Senate Judiciary Committee's

statement to the original bill, the Committee noted: "The bill

also expressly authorizes the prosecuting agency to appeal any

determination by a court not to issue a 'stay-away' order."

Senate Judiciary Comm., Statement to S. 1697, 208th Leg., 2d

Sess., at 1-2 (Feb. 18, 1999). Accordingly, our interpretation

9 A-2477-14T3 of the Act is consistent with the State's right to appeal. That

appeal, however, must be filed within ten days to avoid double

jeopardy concerns.

Counsel for defendants suggests that the reference to

subsection b is in fact a reference to N.J.S.A. 2C:35-5.6.

Counsel arrives at that interpretation by pointing out that

subsection b of N.J.S.A. 2C:35-5.7 has within it a reference to

subsection b of N.J.S.A. 2C:35-5.6. See N.J.S.A. 2C:35-5.7(b)

("[T]he court . . . shall . . . issue an order prohibiting the

person from entering any place defined by subsection b. of

section 3 of P.L.1999, c. 334 ([N.J.S.A. 2C:35-5.6]) . . . .").

The reference to subsection b of N.J.S.A. 2C:35-5.6 is to the

definition of "place." Accordingly, we again return to the

plain and logical meaning of the Act, which is that the

reference to "a criminal offense" is a reference to the

definition of the crimes covered by the Act found in N.J.S.A.

2C:35-5.6(c).

Our interpretation of N.J.S.A. 2C:35-5.7(k) is also

consistent with the legislative history of the Act. As already

noted, the Act has always provided the State with a ten-day

right to appeal the denial of a DORO at sentencing. See L.

1999, c. 334, § 4. The Act was amended in 2001, 2004, 2006 and

2011. See L. 2001, c. 365, § 2; L. 2004, c. 130, § 14; L. 2006,

10 A-2477-14T3 c. 47, § 27; L. 2011, c. 44, § 1. All of those amendments

included the relevant language concerning an appeal of the

denial of a DORO. See ibid. The 2001 amendment moved the

language concerning the time to appeal from subsection h to a

new subsection k. L. 2001, c. 365, § 2 (codified as amended at

N.J.S.A. 2C:35-5.7(k)). The 2001 amendment also moved the

original language in subsection b to subsection h. Ibid.

(codified as amended at N.J.S.A 2C:35-5.7(h)). Further, the

2001 amendment added new provisions to address the procedures

for applying for a restraining order when the person was first

charged with a drug offense. Ibid. (codified as amended at

N.J.S.A. 2C:35-5.7(a)-(d)). The amendment, however, did not

update the language to incorporate the subsection change within

the paragraph regarding the State's right to appeal. Ibid.

(codified as amended at N.J.S.A. 2C:35-5.7(k)). Thus, while

N.J.S.A. 2C:35-5.7(k) still refers to subsection b, we are

satisfied the Legislature intended that the statute be edited in

conformity with the other revisions to refer to subsection h.

Finally, we address whether the ten-day period should be

strictly enforced. The precedent concerning an analogous ten-

day appeal period from a criminal sentence, coupled with double

jeopardy principles, mandates strict enforcement. Pursuant to

N.J.S.A. 2C:44-1(f)(2), the State is authorized to appeal the

11 A-2477-14T3 downgrade or non-custodial sentence regarding convictions for

first or second degree crimes. The language of N.J.S.A. 2C:44-

1(f)(2) authorizing the State's right of appeal is nearly

identical to the language in the DORO Act. Compare N.J.S.A.

2C:35-5.7(k) ("[T]he sentence . . . shall not become final for

ten days in order to permit the appeal of the court's findings

by the prosecution.") with N.J.S.A. 2C:44-1(f)(2) ("[S]uch

sentence shall not become final for 10 days in order to permit

the appeal of such sentence by the prosecution."). In

construing that language, our Supreme Court has held that

"[s]trict compliance with the terms of the statute is required;

failure to perfect an appeal within the ten-day period will

result in dismissal of the State's appeal." State v. Sanders,

107 N.J. 609, 616 (1987); see also State v. Gould, 352 N.J.

Super. 313, 318-19 (App. Div. 2002) (dismissing the State's

appeal of a probationary sentence that was not filed within ten

days as mandated by N.J.S.A. 2C:44-1(f)(2)).

Here, both defendants were sentenced on December 2, 2014.

The State filed its notices of appeal on December 23, 2014.

Thus, both notices were filed beyond the ten-day period.

The notices of appeal filed by the State reference the

December 9, 2014 orders. Those orders granted defendants'

cross-motions to preclude the imposition of a DORO. Because

12 A-2477-14T3 double jeopardy would otherwise begin to attach at the time of

sentencing, N.J.S.A. 2C:35-5.7(k) specifically provides that the

sentence imposed by the court "shall not become final for ten

days in order to permit the appeal of the court's findings by

the prosecution." Here, the State's time to appeal began to run

the day after the sentence; that is, December 3, 2014. See

Johnson, supra, 376 N.J. Super. at 173 ("[T]he ten-day period

commences on the day after sentence is pronounced . . . .").

The State also argues that its notices were actually mailed

on December 17, 2014. The mailing of a notice of appeal is not

the controlling date; rather, the controlling date is the date

of filing. See State v. One 1986 Subaru, 230 N.J. Super. 451,

458 (App. Div. 1989), aff’d in part, rev’d in part, 120 N.J. 310

(1990); Pressler & Verniero, Current N.J. Court Rules, comment 2

on R. 1:5-6 (2016) ("[F]iling can only be effected by the

receipt of the filed paper by the designated office."). Indeed,

the State conceded this point at oral argument.

In summary, because the DORO Act requires an appeal from

the denial of a DORO sought at sentencing to be filed within ten

days, and because the State did not file within that time, both

appeals must be dismissed for lack of jurisdiction.

Dismissed.

13 A-2477-14T3