State v. ErvinState v. Ervin
This case requires us to consider defendant‘s principal argument that he, after being placed on probation, could not be resentenced to a maximum above that embodied in his original negotiated disposition. While we reject that argument, we nevertheless remand for resentencing consistent with the Supreme Court‘s recent holdings in State v. Molina, 114 N.J. 181, 553 A.2d 332 (1989) and State v. Baylass, 114 N.J. 169, 553 A.2d 326 (1989).
Defendant was charged with various offenses embodied in multiple indictments. Pursuant to a negotiated plea, he pled guilty in 1982 to second degree robbery,
On November 4, 1982 defendant was placed on probation conditioned upon his remaining in the Turning Point Drug Program, a rehabilitation program in which he was then enrolled. During the course of the sentence, the judge stated:
Now, the reason you‘re getting this sentence is because if I pull [you] out of Turning Point the likelihood is you will go back to drugs and that would not be good for you or the community. However, I put you on probation for five years. If you ever go back to drugs, it‘s a violation of probation and then you can be assured of the fact you will go away to prison for as long as a time I can possibly sentence you.
Defendant spent considerable time thereafter in a drug treatment program. However, on June 6, 1985 defendant admitted violating his probation by not completing the program, being convicted in municipal court for a subsequent theft, being in possession of CDS on February 22, 1985 and having begun
After noting that defendant “had every opportunity ... to rehabilitate himself,” and that he had been “sentenced to probation at least six different times, all to no avail,” and that “defendant [is] a repeat offender who has committed crimes against society,” id., including second degree robbery with a presumption of imprisonment, the judge reviewed the facts relating to the offenses and defendant‘s record and concluded that “the public must be protected against him now and in the future” and that “he must now be seriously punished“. The judge announced his “intention ... to protect society for as long a period as possible from the likes of this defendant, ... [as] there is every probability that he will continue with his criminal ways unless sufficiently punished.” Finding “that the aggravating circumstances substantially outweigh the mitigating circumstances” and that “no mitigating circumstances apply“, the judge reached
the inescapable conclusion that not only do the aggravating circumstances preponderate in favor of a greater sentence than the presumptive sentence, [but also] that the court is clearly convinced that the aggravating circumstances so substantially outweigh the mitigating circumstances that a period of parole ineligibility must of necessity be imposed to penalize the defendant for his criminal activity hopefully to deter others and more importantly to protect society for as long a period as possible from this particular defendant.
The court thereupon imposed maximum consecutive sentences with maximum parole ineligibility terms — a ten year sentence with five years parole ineligibility for the robbery, a five year sentence with two and one-half years before parole eligibility on the burglary and an eighteen month sentence with nine months before parole eligibility for the fourth degree theft. The aggregate sentence was therefore sixteen and one-half years with eight and one-quarter years of parole ineligibility.
Defendant appealed and we affirmed the sentence after argument on the Excessive Sentence calendar. Only the issue of excessiveness was considered on the appeal from the violation
Subsequently, defendant filed a petition for post-conviction relief contending that the sentence imposed on the violation of probation was illegal because defendant was “never fully advised of the consequences of his plea“, and because a parole ineligibility term was imposed in violation of State v. Kovack, 91 N.J. 476, 453 A.2d 521 (1982). Defendant also argued that the sentence violated the guidelines embodied in State v. Yarbough, 100 N.J. 627, 498 A.2d 1239 (1985). cert. den., 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed.2d 308 (1986), and that there was no procedural bar to his post-conviction claims because he had been denied effective assistance of counsel and such a bar would constitute a “fundamental injustice.”
We are, of course, precluded from reconsidering the issue of excessiveness decided on the prior appeal.
II.
We first consider defendant‘s principal argument that “the sentence imposed after defendant‘s violation of probation is illegal as it exceeds the concurrent ten year sentence defendant was promised and includes a period of parole ineligibility for which defendant was not warned.”3 It is defendant‘s position that upon a violation of probation the defendant cannot receive a sentence greater in duration than the maximum authorized by the negotiated plea unless, at the time of plea, he is advised of that consequence or possibility upon revocation. It is also defendant‘s position that, upon violation of probation, no period of parole ineligibility can be imposed unless the defendant was warned of that possibility at the time of original plea. We note, although the present issue was not specifically addressed in the opinion, that defendant Baylass was placed on probation as a result of a recommendation that he receive concurrent five year probationary terms. See 114 N.J. at 171, 553 A.2d 326. There was no suggestion in the Supreme Court‘s opinion in Baylass, supra, that no custodial sentence could be imposed upon the violation. In fact, the consequence of defendant‘s argument is that a defendant placed on probation after negotiating a noncustodial sentence can never receive a custodial
Defendant basically relies upon the “rationale” expressed in State v. Ryan, 86 N.J. 1, 429 A.2d 332 (1981), cert. den. 454 U.S. 880, 102 S.Ct. 363, 70 L.Ed.2d 190 (1981) and the “mandate” of State v. Kovack, supra.
Ryan received a custodial sentence which was subsequently reduced pursuant to
Although the statements of principle justifying the imposition of custodial sentence after probation revocation under N.J.S.A. 2A:168-4 have not been entirely consistent, ... the sentence imposed after revocation of probation should be viewed as focusing on the original offense rather than on the violation of probation as a separate offense. This is borne out by the statute‘s limitation on the sentence that follows a violation of probation to the sentence already imposed or one that might originally have been imposed, thereby by anchoring the proceedings to the original offense. The custodial term allowed by the statute is imposed because of the defendant‘s failure to abide by the conditions of his probation but is not for the violation of those conditions. [86 N.J. at 7-8, 429 A.2d 332] (emphasis in original).
See also State v. Molina, supra; State v. Baylass, supra. Additionally, the court concluded that “jeopardy attached as soon as defendant commenced serving his [original] prison term, hence principles of double jeopardy foreclosed the imposition of any increased term after violation of probation.” Ryan, 86 N.J. at 9, 429 A.2d 332. This was essentially because defendant had a “legitimate expectation of finality in his original sentence“, Id. at 10, 429 A.2d 332.
Ryan is distinguishable from this case for two reasons. First, the defendant here received no custodial sentence which was reduced when he was placed on probation and subsequently
... [T]he sentencing discretion can be exercised in the case of a particular offender who has served a portion of his custodial term as well as it can in the case of one who has violated the terms accompanying his suspension or probation. We acknowledge the absence of perfect symmetry between the first situation, in which the defendant can be returned to confinement only for the balance of his previously imposed sentence, and the second, where the defendant faces the maximum term that could be imposed for the offense of which he was convicted. These are appropriate matters for consideration by the court faced with a motion for modification of sentence under R. 3:21-10. If, under the circumstances of this case and [State v.] Cunningham [143 N.J. Super. 415, 363 A.2d 371 (App.Div. 1976)] the court‘s exercise of discretion is `chilled’ by the prospect that a probation violator will be exposed to no more than the unserved balance of his term — a prospect we deem unlikely — that is simply the price of vindication of a defendant‘s right not to be put in double jeopardy. [Id. 86 N.J. at 12-13, 429 A.2d 332; footnote omitted.]
This case does not involve the reduction under
We do not read Kovack, supra, as applying in this setting. Defendant‘s initial sentence conformed to the original negotiated plea; in fact, defendant received a sentence substantially below that for which he negotiated. See and compare State v. Warren, 115 N.J. 433, 558 A.2d 1312 (1989). In essence, defendant is contending that he must be told at the time of plea of a consequence of his failure to satisfy the conditions of probation, and our Supreme Court has made clear that “defendant need be informed only of the penal consequences of his plea and not the collateral consequences ...” State v. Heitzman, 209 N.J. Super. 617, 622, 508 A.2d 1161 (App.Div. 1986), aff‘d o.b., 107 N.J. 603, 604, 527 A.2d 439 (1987). While we are not here dealing with a “collateral consequence” in the traditional sense, relating to a statutory bar or forfeiture flowing from the conviction itself, we are dealing with the “collateral consequence” of defendant‘s failure to honor the conditions of probation imposed upon the original conviction. The consequence flows exclusively from defendant‘s failure to
In fact,
... the rule specifies the contents of the probation order, imposes the obligation on the probation officer to make them clear to defendant, and requires the filing of a statement signed both by the officer and the defendant as to the former‘s compliance with that obligation. These provisions were all intended to insure defendant‘s understanding of the consequences of being placed on probation.... [T]he last sentence of [
R. 3:21-7](a) was added to make clear the power of the court to resentence a defendant who either refuses to be placed on probation or rejects any of the conditions. [Pressler, Current N.J. Court Rules, Comment to R. 3:21-7].
We are therefore satisfied that, upon revocation of probation, defendant may be sentenced to “any sentence that might have been imposed originally for the offense of which he was convicted“,
Even though we reject defendant‘s principal contention that he may not be resentenced above the term embodied in the plea agreement, we recognize that State v. Kovack rejected reliance upon review of the plea form for purposes of assuring the defendant‘s understanding of the consequences of his plea.
IV.
Before turning to the claim that the judge violated the guidelines of Baylass and Molina upon resentencing defendant, we must further address the procedural question regarding whether defendant‘s claims are cognizable by petition for post-conviction relief.
Prior to adoption of the Code of Criminal Justice,
However, because of the technical requirements of the Code of Criminal Justice, designed to reduce judicial discretion and eliminate undue sentence disparity, “... the distinction between an `illegal’ and an `excessive’ sentence has become blurred.” State v. Flores, supra, 228 N.J. Super. at 594, 550 A.2d 752. As Judge Baime recently said
[t]he point to be stressed is that the parameters of sentencing discretion have been substantially narrowed by the Code‘s provisions, and consequently sentencing decisions depend upon application of specific criteria and guidelines.... At one end of the spectrum are sentences, the quantum or length of which is beyond the maximum provided by law. Such sentences are clearly illegal and correctable in post-conviction relief proceedings. At the other end of the spectrum are sentences which are, at least ostensibly, based upon application of the appropriate aggravating and mitigating factors, but which nevertheless appear to be unreasonable in the sense that they shock the conscience. Most would agree that such sentences are excessive, but not illegal, and thus subject to correction only on direct appeal. Against this backdrop, we are convinced that questions concerning the adequacy of the sentencing court‘s findings and the sufficiency of the weighing process employed should be addressed only by way of direct appeal. Important public policy considerations, firmly grounded in the efficient and fair administration of criminal justice, bring us to this result. [Id. at 594-595, 550 A.2d 752].
We agree with this observation and note that in this case defendant‘s direct appeal from the sentence imposed upon violation of probation was rejected. It is clear that issues relating to the determination of aggravating and mitigating factors, the balancing thereof and the conclusions resulting from that balancing generally deal with claims of “excessiveness“, as opposed to “illegality“, provided that the sentence imposed falls within the range authorized by the Legislature for the degree of crime involved. See
In State v. Flores, supra, we concluded that a claimed violation of the Supreme Court‘s guidelines developed in State v. Yarbough is not “an issue cognizable in post-conviction relief proceedings because it does not relate to the legality of the sentence imposed.” We observed that “such claims have historically been characterized as relating to the `excessiveness’ of the sentences, rather than their legality.” Flores, supra, 228 N.J. Super. at 596, 550 A.2d 752. Flores, however, did not deal with a sentence imposed on a violation of probation.
The alleged violation of the Baylass-Molina rationale is harder to classify. In State v. Baylass, supra, the Supreme Court held:
... that a violation of probation relates to mitigating, not aggravating, factors as identified at a defendant‘s original sentencing hearing. Except insofar as the probation violation affects the weight to be accorded to mitigating factors, the violation may not be used to impose a prison term greater than the presumptive sentence or a period of parole ineligibility. Nor should probation violations be used to justify the imposition of consecutive sentences. [114 N.J. at 170-171, 553 A.2d 326].
Baylass involved a “technical” violation (as opposed to a violation based on a new offense) in that defendant failed to keep appointments with his probation officer and continued to use drugs. In concluding that a probation violation could affect the court‘s original determination of mitigating, as opposed to aggravating, factors and that the only aggravating factors that the court could consider upon imposing sentence for the violation of probation were those “that existed at the time of the initial sentencing“, id. at 176, 553 A.2d 326, the court concluded
[i]f a probation violation could be considered as an aggravating factor, the sentence imposed after that violation could be longer than the one to which the defendant was exposed when originally sentenced. The reason is that the subsequent sentence would entail consideration of defendant‘s probation violations as new aggravating factors. The longer prison term would result from the defendant‘s failure to fulfill the terms of probation, a result that breaches the rule that sentences should be oriented toward the offense, not the offender. Id. at 175, 553 A.2d 326.
See also State v. Molina, supra; State v. Ryan, supra, 86 N.J. 1, 7-8, 429 A.2d 332 (1981). However, the court also stated:
Once the court determines that the violation justifies revocation of probation, the Code controls the sentencing decision. Specifically, the term of imprisonment should not exceed the presumptive sentence unless the aggravating factors preponderate over the mitigating factors. N.J.S.A. 2C:44-1f(1). In weighing those factors the court should consider the aggravating factors found to exist at the original hearing and the mitigating factors as affected by the probation violations. We anticipate that it will be a rare case in which the balance of the original aggravating factors and surviving mitigating factors weigh in favor of a term of imprisonment greater than the presumptive sentence or of a period of parole ineligibility. [114 N.J. at 178, 553 A.2d 326 (emphasis added)].
We do not read State v. Baylass or State v. Molina as prohibiting as a matter of law the imposition of any sentence imposed above the presumptive term or with a parole ineligibility term upon a violation of probation, provided the trial judge expressly states his reasons for concluding that the original aggravating
However, we also reject the State‘s contention advanced at oral argument before us that the judge on violation of probation in this case properly imposed a de novo sentence without regard to the guidelines developed in Baylass and Molina because he was not the original sentencing judge and because the original sentencing judge made a clear mistake in imposing the original sentence notwithstanding the presumption of imprisonment. The short answer to that contention is that the State had the right to appeal from the probationary sentence originally imposed notwithstanding the presumption of imprisonment for a first or second degree crime. See
We conclude that the matter should be remanded for resentencing because, on the violation proceeding, the trial judge, considering the matter before Baylass and Molina were decided, violated its dictates and therefore imposed a sentence not “authorized” by
Finally, we note that here the defendant was sentenced for a violation which included a new offense and point out that our Supreme Court in State v. Baylass was specifically dealing with a violation of probation of a “technical” nature not involving a new offense for which the defendant was convicted. State v. Baylass, supra, 114 N.J. at 176, 553 A.2d 326, acknowledges the argument that a new offense evidences the risk that defendant may commit another offense,
Remanded for resentencing on the violation of probation.