SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1913-18T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SADIQUA N. MITCHELL,

Defendant-Appellant.

Submitted March 31, 2020 – Decided April 24, 2020

Before Judges Gilson and Rose.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment No. 16-09-2710.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Alyssa A. Aiello, Assistant Deputy Public 

Defender, on the brief).

Theodore N. Stephens II, Acting Essex County 

Prosecutor, attorney for respondent (Frank J. Ducoat, 

Special Deputy Attorney General/Acting Assistant 

Prosecutor, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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Pursuant to a negotiated plea agreement with the State, defendant Sadiqua 

N. Mitchell pled guilty to second-degree unlawful possession of a .40 caliber 

handgun, N.J.S.A. 2C:39-5(b)(1). In exchange for defendant's guilty plea, the 

State recommended a noncustodial probationary term consistent with the Graves 

Act waiver statute, N.J.S.A. 2C:43-6.2. The Criminal Division presiding judge 

granted the waiver and the trial judge imposed a four-year probationary term, 

with the potential for early termination, provided defendant complied fully with 

the terms of probation. But, defendant violated those terms. Thereafter, the 

same judge who had imposed sentence afforded defendant opportunities to 

improve, but she failed to engage in a manner that would justify continuing her 

probationary term. Accordingly, the judge terminated probation without 

improvement.

Following oral argument over the course of two hearings, the judge 

resentenced defendant to a five-year term of imprisonment with a "mandatory 

minimum" term of forty-two months without parole pursuant to the Graves Act, 

N.J.S.A. 2C:43-6(c). In reaching her decision, the judge noted she was 

"constrained" to impose the parole disqualifier under that section of the Graves 

Act. The judge stayed defendant's sentence pending appeal.

On appeal, defendant raises a single point for our consideration:
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POINT I

THE GRAVES ACT MINIMUM TERM IS NOT 

MANDATORY FOR PURPOSES OF 

RESENTENCING ON A VIOLATION OF 

PROBATION. THEREFORE, DEFENDANT'S 

SENTENCE MUST BE VACATED AND THE 

MATTER REMANDED FOR RESENTENCING IN 

ACCORDANCE WITH THE STANDARDS SET 

FORTH IN STATE V. BAYL[A]SS.

[1]

More particularly, defendant renews her argument that the State's 

agreement to waive the mandatory minimum term on defendant's original 

sentence, "survives a violation of probation" and therefore applies on 

resentencing. Defendant does not challenge the revocation of her probationary 

term. 

The State now joins in the argument advanced by defendant, conceding a 

remand is necessary for resentencing. But, the State urges that on resentencing 

the judge

must still adhere to the other sentencing provisions in

the Code, including the normal range for second-degree 

offenses, the presumption of incarceration, and the high 

bar of imposing a sentence within the third-degree 

range. The court may also impose a period of parole 

ineligibility if, in its discretion, it deems it appropriate.

 

1 114 N.J. 169 (1989).
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Having reviewed the record in light of governing principles, we agree with 

defendant's argument, as circumscribed by the State. Accordingly, we vacate 

the sentence and remand for resentencing. 

Because the issue raised on appeal implicates the legality of the sentence 

imposed, our review of the judge's decision is de novo. See State v. Nance, 228

N.J. 378, 393 (2017). We therefore "afford[] no special deference to the 

[judge's] interpretation of the relevant statutes." Ibid.; see also State v. Grate, 

220 N.J. 317, 329 (2015). 

Although the precise issue presented is one of first impression, we draw 

guidance – as did the parties – from our Supreme Court's companion decisions 

in State v. Vasquez, 129 N.J. 189 (1992) and State v. Peters, 129 N.J. 210 (1992), 

which shared similar fact patterns. In both cases, the defendants pled guilty to 

distribution of a controlled dangerous substance within 1,000 feet of a school, 

N.J.S.A. 2C:35-7, pursuant to a negotiated plea agreement with the State. 

Vasquez, 129 N.J. at 192; Peters, 129 N.J. at 213. The State in return agreed to 

waive the mandatory minimum term of imprisonment under N.J.S.A. 2C:35-12, 

recommended a probationary term, and indicated it would not waive the parole 

ineligibility term on resentencing for a violation of probation. Vasquez, 129 

N.J. at 192; Peters, 129 N.J. at 213. Both defendants violated the terms of their 
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probationary terms and were resentenced to the mandatory three-year term of

parole ineligibility under N.J.S.A. 2C:35-7. Vasquez, 129 N.J. at 193; Peters, 

129 N.J. at 214-15. In each case, the trial court indicated it was "compelled" to 

sentence the defendant to a mandatory minimum term. Vasquez, 129 N.J. at 

192-93; Peters, 129 N.J. at 215. 

Reversing both sentences, the Court distinguished between the nature of 

the parole disqualifier set forth in N.J.S.A. 2C:35-7 – which can be waived under 

N.J.S.A. 2C:35-12 – and mandatory sentencing statutes, which do not permit 

judicial discretion. Vasquez, 129 N.J. at 199; see also Peters, 129 N.J. at 221 

(deciding the same issues under the rationale set forth in Vasquez). The Court

observed:

Section 7's parole disqualifier is not absolute -- it 

can be waived at the discretion of the prosecutor. 

Because the prosecutor can waive the parole 

disqualifier, section 7 sentencing is not "mandatory," at 

least in the typical or conventional use of mandatory 

sentencing. Therefore, the section 7 sentencing scheme 

is a hybrid, combining mandatory and discretionary 

features and delegating sentencing authority to both the 

courts and the prosecutors.

. . . . 

Moreover, section 12, which authorizes the waiver of 

the mandatory term, does so only in the context of the 

original sentencing. That waiver may occur as part of 

a plea agreement or a post-conviction sentencing 
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agreement. However, the legislation does not expressly 

mandate that a parole disqualifier be applied at the 

resentencing stage or authorize the exercise by the 

prosecution of any power to waive or request such a 

parole disqualifier at that stage.

In addition, the imputation of such a mandatory 

term would be fundamentally inconsistent with the 

legislative scheme governing resentencing for violation 

of probation.

[Vasquez, 129 N.J. at 199, 201.] 

Although the Court cited the Graves Act as an example of a statutory 

scheme that did not permit prosecutors to "eliminate or reduce the sentences that 

are mandatorily prescribed [thereunder] through plea bargains," id. at 199, we 

note the waiver provision set forth in N.J.S.A. 2C:43-6.2,2 was not yet enacted 

when the Court decided Vasquez and Peters. We therefore conclude the 

rationale of the Court's decisions in those cases applies here, where a similar 

"hybrid" statutory scheme permitted the prosecutor to waive the mandatory 

minimum term for defendant's weapons offense.

We further agree with the State that on resentencing, the judge must 

sentence defendant pursuant to all applicable sentencing provisions. Because 

unlawful possession of a weapon is a second-degree offense, the sentencing 

 

2 See L. 1993, c. 49, §2.
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range is between five and ten years, N.J.S.A. 2C:43-6(a)(2), and only if the judge 

"is clearly convinced that the mitigating factors clearly substantially outweigh 

the aggravating factors and . . . the interests of justice demands," then the judge 

may sentence defendant as a third-degree offender, N.J.S.A. 2C:44-1(f)(2). 

Regardless, the presumption of imprisonment applies, N.J.S.A. 2C:44-1(d). See 

also Nance, 228 N.J. at 398-99. Should the judge impose sentence in the thirddegree range, the sentence must be stayed for ten days to permit the State to 

appeal. N.J.S.A. 2C:44-1(f)(2). 

Although, as the State argues, the judge on resentencing "may" impose a 

period of parole ineligibility, see N.J.S.A. 2C:43-6(b), the Court has noted "it 

will be a rare case in which the balance of the original aggravating factors and 

surviving mitigating factors weigh in favor of . . . a period of parole 

ineligibility."3 Baylass, 114 N.J. at 178. Because at the original sentencing, the 

mitigating factors weighed in favor of probation, a parole disqualifier ordinarily 

should not be imposed when resentencing defendant for the probation violation. 

 

3 At the original sentencing hearing, the judge determined mitigating factors 

seven (defendant had no prior criminal activity), N.J.S.A. 2C:44-1(b)(7), and 

ten (defendant was likely to respond to probationary treatment), N.J.S.A. 2C:44-

1(b)(10) outweighed aggravating factor nine (specific and general deterrence), 

N.J.S.A. 2C:44-1(a)(9). Following the violation of probation, the judge found 

no mitigating factors applied. 
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Ibid. In reweighing the factors on resentencing, the court should consider the 

aggravating factors the court found applicable "at the original hearing and the 

mitigating factors as affected by the probation violations." See ibid.; State v. 

Molina, 114 N.J. 181, 184-85 (1989). The judge may not, however, find any 

new aggravating factors. Baylass, 114 N.J. at 176-78.

In sum, on remand the judge "may impose on . . . defendant any sentence 

that might have been imposed originally for the offense of which [s]he was 

convicted," N.J.S.A. 2C:45-3(b); see also State v. Frank, 280 N.J. Super. 26, 40 

(App. Div. 1995) (recognizing "the original plea agreement does not survive a 

violation of probation."). On resentencing, the judge "should view defendant as 

[s]he stands before the court on that day." State v. Randolph, 210 N.J. 330, 354 

(2012).

Vacated and remanded for resentencing. We do not retain jurisdiction.