NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5715-12T3

 A-0479-13T3

 A-0715-13T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAQUILLE A. NANCE a/k/a 

NANCE SHAQUILLE A, a/k/a 

NANCE SHAQUILLE,

Defendant-Appellant.

______________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TAJA L. WILLIS-BOLTON a/k/a

TAJA BOLTON, a/k/a TAJA WILLIS,

a/k/a TAJ BOLTON, a/k/a TAJ 

WILLIS, a/k/a TAJ WILLISBOLTON, 

a/k/a TAJA WILLISBOLTON,

Defendant-Appellant.

_______________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALVIN D. WILLIAMS,

Defendant-Appellant.

________________________________

APPROVED FOR PUBLICATION

September 8, 2015

APPELLATE DIVISION
2 A-5715-12T3

Argued February 3, 2015 – Decided

Before Judges Fisher, Accurso and Manahan.

On appeal from the Superior Court of New 

Jersey, Law Division, Mercer County, 

Indictment No. 12-11-0195 in A-5715-12; 

Monmouth County, Indictment No. 12-02-0380 

in A-0479-13; and Union County, Indictment 

No. 11-04-0471 in A-0715-13.

Ruth E. Hunter, Designated Counsel, argued 

the cause for appellant Shaquille A. Nance 

(Joseph E. Krakora, Public Defender, 

attorney; Ms. Hunter, on the brief).

Daniel I. Bornstein, Deputy Attorney 

General, argued the cause for respondent in

A-5715-12 (John J. Hoffman, Acting Attorney 

General, attorney; Mr. Bornstein, of counsel 

and on the brief).

Ruth E. Hunter, Designated Counsel, argued 

the cause for appellant Taja L. WillisBolton (Joseph E. Krakora, Public Defender, 

attorney; Ms. Hunter, on the brief).

Paul H. Heinzel, Special Deputy Attorney 

General/Acting Assistant Prosecutor, argued 

the cause for respondent in A-0479-13 

(Christopher J. Gramiccioni, Acting Monmouth 

County Prosecutor, attorney; Mr. Heinzel, of 

counsel and on the brief).

Brian P. Keenan, Assistant Deputy Public 

Defender argued the cause for appellant 

Alvin D. Williams (Joseph E. Krakora, Public 

Defender, attorney; Mr. Keenan, of counsel 

and on the brief).

Sara B. Liebman, Special Deputy Attorney 

General/Acting Assistant Prosecutor, argued 

the cause for respondent in A-0715-13 (Grace 

H. Park, Acting Union County Prosecutor, 

attorney; Ms. Liebman, of counsel and on the 

brief).

September 8, 2015
3 A-5715-12T3

The opinion of the court was delivered by

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

In these consolidated Graves Act cases, we consider 

whether, after a motion for waiver by the State, the sentencing 

judge had the discretion to impose a probationary term or was 

mandated to impose a one-year parole disqualifier pursuant to 

the plea agreement. As we have determined that N.J.S.A. 2C:43-

6.2 (the "escape valve" statute) provides for judicial 

discretion, we reverse and remand for resentencing.

Defendant Shaquille A. Nance appeals from his sentence to a 

three-year prison term with a period of parole ineligibility for 

one year. On March 6, 2012, Nance possessed a sawed-off 12-

guage Winchester shotgun inside his Trenton home. A State Grand 

Jury charged Nance with third-degree conspiracy to possess and 

dispose of prohibited weapons, N.J.S.A. 2C:5-2 (count one); 

third-degree unlawful possession of a sawed-off shotgun, 

N.J.S.A. 2C:39-3b (count two); third-degree unlawful possession 

of a weapon, N.J.S.A. 2C:39-5c(1) (count three); and thirddegree unlawful disposition of a weapon, N.J.S.A. 2C:39-9b 

(count four). 

Nance pled guilty to third-degree possession of a sawed-off 

shotgun. The prosecutor recommended five years with one-year 

mandatory parole ineligibility. At the plea, the court held the 
4 A-5715-12T3

sentence was subject to approval by the Presiding Judge.

Thereafter, the Presiding Judge approved the plea and returned 

the case to the trial judge whose calendar the case was assigned 

for the sentence. During the sentence, defense counsel asked 

the sentencing judge to consider sentencing Nance below the 

State's recommendation. When the sentencing judge inquired 

whether he could modify the sentence in favor of the defendant, 

the prosecutor responded that the judge did not have the 

authority to impose a lesser sentence.1

Defendant Taja L. Willis-Bolton appeals from his sentence

to a three-year prison term with a period of parole 

ineligibility for one year. On December 13, 2011 Willis-Bolton 

possessed a .25 caliber handgun without a license. A Monmouth 

County Grand Jury charged Willis-Bolton with second-degree 

unlawful possession of a weapon, N.J.S.A. 2C:39-5b. At the 

plea, the judge told Willis-Bolton he "would have to serve one 

year prior to being eligible to be released on parole[.]" 

Willis-Bolton entered a guilty plea and was sentenced in 

 

1 At the sentence, defense counsel asked the judge "to consider 

modifying the sentence[.]" The judge asked the prosecutor, 

"[D]o you believe I have the authority to do that under the 

Graves Act?" The prosecutor responded "I don't believe you do. 

It's my understanding that the State modified it from a five 

with a three to a five with a one, and the [Presiding Judge] 

signed off on that. I don't believe that your Honor can modify 

it any further."
5 A-5715-12T3

accordance with the plea to a three-year prison term with one

year of parole ineligibility.

Defendant Alvin D. Williams appeals from his sentence to a 

three-year prison term with a period of parole ineligibility for 

one year. On January 9, 2011, Williams possessed a firearm 

without a permit. A Union County Grand Jury charged Williams 

with third-degree terroristic threats, N.J.S.A. 2C:12-3b (count 

one); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) 

(count two); second-degree possession of a weapon for an 

unlawful purpose, N.J.S.A. 2C:39-4a (count three); and seconddegree unlawful possession of a weapon, N.J.S.A. 2C:39-5b 

(counts four and five). Pursuant to a plea agreement, Williams 

pled guilty to count four. The matter was not referred to the 

assignment judge with the option of imposing either the one-year 

minimum term of parole ineligibility or probation. Williams was 

sentenced to a three-year prison term with one year of parole 

ineligibility.2

 

2 In a Memorandum dated November 21, 2008, the Acting 

Administrative Director of the Courts, at the direction of the 

Chief Justice, clarified that while statutory language indicates 

that motions for waiver of, or reductions to, the otherwise 

mandatory minimum terms of imprisonment or parole ineligibility 

required pursuant to the Graves Act are to be made by the 

Prosecutor to the Assignment Judge, that responsibility is 

delegable by the Assignment Judge to the criminal presiding 

judge, pursuant to inherent authority and the Rules of Court.

(continued)
6 A-5715-12T3

On appeal, each defendant raises the same arguments:

POINT I

PURSUANT TO THE PLAIN LANGUAGE OF N.J.S.A.

2C:43-6.2, AND THIS COURT'S OPINION IN STATE 

V. GINTY, 243 N.J. SUPER. 39, 42-43 (APP. 

DIV. 1990), THE JUDGE HAD DISCRETION TO 

SENTENCE DEFENDANT TO PROBATION AFTER THE 

PROSECUTOR CONSENTED TO REFER THE MATTER FOR 

A REDUCTION OF THE GRAVES ACT MANDATORY 

MINIMUM TERM.

POINT II

DEFENDANT IS ENTITLED TO A REMAND UNDER 

STATE V. KOVACK, 91 N.J. 476 (1982), BECAUSE 

HE WAS MISINFORMED THAT THERE WAS A 

MANDATORY MINIMUM PAROLE INELIGIBILITY TERM

OF ONE YEAR.

Pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), any person 

convicted of the unlawful possession of a firearm, N.J.S.A.

2C:39-5(b), "shall be sentenced to a term of imprisonment . . . ." 

At all times relevant to the facts in this case, the Graves Act 

further required that "[t]he term of imprisonment shall include 

the imposition of 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 . . . during which the 

defendant shall be ineligible for parole." N.J.S.A. 2C:43-6(c).

 

(continued)

Although not specifically referenced in the Memorandum, we 

presume that the responsibility for sentencing may also be 

delegated to the criminal presiding judge. R. 1:33-6(a). We 

are uncertain whether the delegation extends to other judges 

assigned to the Criminal Division.
7 A-5715-12T3

In 1989, the Legislature enacted N.J.S.A. 2C:43-6.2. The 

purpose of the amendment was to allow the trial courts to 

exercise greater discretion sentencing first-time firearms 

offenders, where the imposition of the mandatory minimum terms 

required by the Graves Act were deemed to be "unnecessarily and 

unproductively harsh." Cannel, New Jersey Criminal Code 

Annotated, comment 2 on N.J.S.A. 2:43-6.2 (2014).

In State v. Alvarez, 246 N.J. Super. 137, 142 (App. Div. 

1991), we held that the assignment judge is to make the 

sentencing "in-out" decision, i.e., "whether probation or a oneyear ineligibility term is to be imposed" under N.J.S.A. 2C:43-

6.2. See State v. Mastapeter, 290 N.J. Super. 56, 64 (App. 

Div.), certif. denied, 146 N.J. 569 (1996). In Alvarez, we 

concluded the Graves Act escape valve "was constitutional 

because the assignment judge has the ultimate authority to 

decide whether the prosecutor arbitrarily or unconstitutionally 

discriminated against a defendant in determining whether the 

'interests of justice' warrant reference to the assignment 

judge." Alvarez, supra, 246 N.J. Super. at 147 (emphasis 

added); see State v. Ginty, 243 N.J. Super. 39, 41 (App. Div. 

1990); see also Cannel, New Jersey Criminal Code Annotated, 

comment 2 on N.J.S.A. 2C:43-6.2 (2014) ("[A] prosecutor's 

decision not to pursue or endorse an application . . . will not 
8 A-5715-12T3

be disturbed on appeal unless arbitrary, capricious, or unduly 

discriminatory.").

In State v. Watson, 346 N.J. Super. 521 (App. Div. 2002), a 

Graves Act case, we referenced the sentence options when a 

prosecutorial waiver is granted: "a reduced mandatory minimum 

term of one year, or to place the defendant on probation with 

the condition of a jail term pursuant to N.J.S.A. 2C:43-2b(2)." 

Id. at 535.

Predicated upon our review of the record, each judge 

sentenced the respective defendant as though they had no

discretion to sentence other than to that stated in the plea 

agreement. To the contrary, we conclude, as we did in Alvarez

and Watson, the escape valve statute vests discretion with the 

sentencing judge to impose either a one-year minimum term of 

parole ineligibility or probation conditioned on a custodial 

term upon the motion for a waiver or after a prosecutor approved 

referral. Therefore, to the extent the State argues the 

sentencing judge was specifically bound by the plea agreement's 

terms, we disagree.

In State v. Vasquez, 129 N.J. 189 (1992), our Supreme Court 

addressed the issue of mandatory sentences:

Mandatory sentences usually allow for 

no judicial discretion. See, e.g., State v. 

Jefimowicz, 119 N.J. 152, 162 (1990) 

(sentencing standards applicable to 
9 A-5715-12T3

discretionary extended terms do not apply to 

Graves Act because "[t]here is nothing 

discretionary about this determination"); 

State v. Towey, 114 N.J. 69, 80, 82 (1989) 

(no judicial discretion in mandatory 

sentencing structure of Graves Act; State v. 

Des Marets, 92 N.J. 62, 80 (1983) 

(Legislature can limit the judiciary's 

discretion to sentence by prescribing 

mandatory minimum terms for offenses 

committed with firearms).

[Id. at 199.]

However, as noted, these were not "mandatory sentences" 

notwithstanding that the bounds of the judge's authority was 

limited to two sentence options. Further, the plea agreements

were not "contract pleas." See State v. Bridges, 131 N.J. 402, 

414 (1993); see also State v. Thomas, 392 N.J. Super. 169, 174 

(App. Div. 2007) ("[T]he trial court erred by imposing a lower 

sentence than that negotiated between the State and defendant 

pursuant to the Brimage Guidelines3 and N.J.S.A. 2C:35-12[.]"). 

Unlike N.J.S.A. 2C:35-12, the escape valve statute does not 

expressly or implicitly limit the sentencing judge's ability to 

sentence a defendant to a lesser sentence provided for under the 

plea agreement, nor does it require the judge to reject the 

bargain should the judge conclude the plea is not in the 

interest of justice. See State v. Leslie, 269 N.J. Super. 78, 

84 (App. Div. 1993), certif. denied, 136 N.J. 29 (1994). In 

 

3 See State v. Brimage, 153 N.J. 1 (1998).
10 A-5715-12T3

criminal matters not subject to a "contract plea" the "parties 

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." State v. Warren, 

115 N.J. 433, 442 (1989).

We recognize the role of the prosecutor in making charging 

decisions and in extending plea offers. We also recognize that 

the Attorney General may adopt policies relating to those 

charging decisions. Indeed, in 2008, after the Legislature 

amended the Graves Act to expand its scope, the Attorney General 

issued a "Directive to Ensure Uniform Enforcement of the Graves 

Act," ("Directive") published on October 23, 2008 and corrected 

on November 25, 2008. Among other things, the Directive 

addressed the policy of the Attorney General in the prosecutor's 

waiver determinations. The Directive, though binding on 

prosecutors' charging decisions, did not bind the court in the 

exercise of its discretionary sentencing in waiver cases.

Our decision does not alter the prosecutor's role as an 

advocate for the State at sentence. In that role, the 

prosecutor is free to argue, after waiver or referral, for the 

imposition of the mandatory minimum term of one year and the 

base term of the custodial sentence within the authorized range 
11 A-5715-12T3

for the offense, and defense counsel is free to argue for the 

imposition of probation.4

Nor does our decision alter the judge's role at 

sentencing. In the determination of which sentence option to 

impose, the judge is required to state the reasons for the 

sentence. In doing so, the judge must, among other 

considerations, reference "the mitigating and aggravating 

factors . . . to bring rationality to the process and minimize 

disparate sentencing." State v. Natale, 184 N.J. 458, 488 

(2005). 

Finally, we are not concerned that our decision today may 

result in a "revised" plea policy by the State that reduces 

prosecutorial waiver motions or approvals to a referral. As we 

have often noted, in different contexts, the prosecutor's role 

is "to see that justice is done." State v. Frost, 158 N.J. 76, 

83 (1999); State v. Spano, 64 N.J. 566, 568 (1974). We remain 

confident that in carrying out that role, the State would employ 

a plea policy on Graves Act escape valve cases that reflects 

both the statute's legislative intent and the public interest of 

securing a just outcome.

 

4 We note that if a probationary term is imposed, there must be a 

custodial aspect to the sentence. See Watson, supra, 346 N.J. 

Super. at 535.
12 A-5715-12T3

The judgments under review in these consolidated cases are 

reversed and remanded.