State v. RyanState v. Ryan
This appeal concerns a defendant who served part of a State Prison sentence before being released on probation for drug treatment pursuant to R. 3:21-10(b). Defendant thereafter violated probation. The issues are (1) whether the trial judge could properly sentence or resentence defendant after the probation violation to a greater sentence than defendant was serving when he was placed on probation and (2) whether defendant is entitled to credit for time spent on probation. State v. Cunningham, 143 N.J. Super. 415 (App.Div. 1976), with which we agree, upheld a higher sentence imposed after violation of probation in similar circumstances. However, State v. Williams, 167 N.J. Super. 203 (App.Div. 1979), certif. granted 81 N.J. 272 (1979), held that a defendant who was released on probation after serving part of his sentence has a constitutional right to credit against his remaining prison term for time spent on probation. We reach a different result as to this issue in the case at hand.
After serving seven months in custody, defendant‘s motion under R. 3:21-10(b) to suspend his sentences was granted as of August 1, 1974, and he was placed on probation and transferred to a drug treatment center where he resided until some time in September 1974. Thereafter, in February 1977 defendant was cited for violating probation. He pleaded guilty to two of the three charges, namely, abscond from probationary supervision and failing to report since January 5, 1976, and changing his residence without permission and leaving the State for more than 24 hours without permission. Sentence was imposed pursuant to
Similar double jeopardy claims were considered and rejected in State v. Cunningham, 143 N.J. Super. 415 (App.Div. 1976), and, as indicated above, we concur in its holding. Suspending a defendant‘s prison sentence, whether before any part of a custodial sentence has been served, as in In re White, 18 N.J. 449 (1955), or after part has been served, as in State v. Cunningham, supra, and placing a defendant on probation, is done pursuant to legislative authority. As part of the legislative scheme,
In Roberts, supra, 320 U.S. at 274-275, 64 S.Ct. at 118-119, 88 L.Ed. at 46-47, Mr. Justice Frankfurter argued that it should make no difference whether the sentencing judge fixes a prison term which is suspended or fixes no term at all and merely suspends all sentencing before placing a defendant on probation. The third variant is the case at hand, where a prison term has been imposed and was partially served before the court, at defendant‘s request, suspended the balance of the term. In all three situations the legislative scheme attaches the same consequences to a violation: a new sentence can be imposed for the underlying crimes to the limits allowed by law. The probation violation permits a judge to revoke probation and compel execution of the original sentence; it also allows the judge to vacate the original sentence and impose any sentence that could have been imposed at the outset. In re White, supra, 18 N.J. at 454. When, as here, a defendant moves to suspend the prison term which he is serving and for release on probation, he must be taken to accept the probation laws that he invokes.
We recognize the general rule that double jeopardy attaches when a defendant begins serving his sentence, so that he cannot be subjected to multiple punishments for the same offense. Ex parte Lange, 85 U.S. (18 Wall.) 163, 174, 21 L.Ed. 872, 878 (1874); North Carolina v. Pearce, 395 U.S. 711, 730-732, 89 S.Ct. 2072, 2091-2092, 23 L.Ed.2d 656, 672-674 (1969). Normally, a sentence which has begun cannot be set aside and a higher sentence imposed. Id.; State v. Matlack, 49 N.J. 491, 501-502 (1967), cert. den. 389 U.S. 1009, 88 S.Ct. 572, 19 L.Ed.2d 606 (1967). However, where on appeal defendant‘s conviction is reversed and his sentence vacated, defendant can be given a more severe sentence upon reconviction than originally imposed, so long as his subsequent conduct justifies the higher sentence and retaliation for taking an appeal has not motivated the new
Apart from the constitutional issue, defendant contends that R. 3:21-10(b) was not intended to authorize an increase in sentence under any circumstances. Defendant cites State v. Matlack, 49 N.J. 491 (1967), cert. den. 389 U.S. 1009, 88 S.Ct. 572, 19 L.Ed.2d 606 (1967), in support, as well as a general comment to this effect in the Report of the New Jersey Supreme Court‘s Committee on Criminal Practice, 98 N.J.L.J. 321, 343 (1975). However, these references are not pertinent. The Committee on Criminal Practice cited Matlack for the proposition that R.
Defendant also contends that
We see no reason to resort to our inherent power to suspend sentences when
Nor do we find persuasive defendant‘s reference to
Thus, as in State v. Cunningham, we conclude that a court has the full authority granted by
Defendant also contends that the trial judge erred in not allowing him credit against the new sentences for time served while on probation, in addition to time served in jail, in keeping with the holding of State v. Williams, supra.2 In Williams the court reasoned that probation is “a form of punishment.” 167 N.J. Super. at 207. In re Buehrer, 50 N.J. 501, 509 (1967), was quoted to show that probation has “sting” and that restrictions on the probationer are “punitive in quality.” Thus, our colleagues in Williams concluded that in the circumstances of that case, compelling a defendant to serve his full sentence without credit for time spent on probation constitutes “multiple punishments for the same offense,” interdicted by the double jeopardy clause of the Fifth Amendment. 167 N.J. Super. at 208. North Carolina v. Pearce, supra, was cited in support of that holding.
There is a factual distinction between Williams and the case at hand which may or may not be significant. In Williams, defendant was ordered released from prison pursuant to R. 3:21-10 and placed on probation with drug-treatment conditions. The State appealed this order without seeking a stay, and, while defendant was on probation it was reversed as an abuse of the trial judge‘s discretion. Defendant was remanded to serve his prison term. The court held that “refusing defendant
The court in Williams may have thought it unfair that defendant‘s full sentence was to be extended by the several years he spent on probation without wrongdoing on his part, and without violating probation. In those circumstances it treated probation as a form of punishment for which credit was allowed against defendant‘s maximum sentence.
We question whether North Carolina v. Pearce, supra, compels the result reached in Williams. North Carolina v. Pearce did not involve credit for time spent on probation before or during a custodial term. Pearce involved a sentence imposed after the retrial of a defendant who had served part of his jail sentence under a conviction that was reversed on appeal. As noted above, Pearce held that on resentencing a defendant must be given full credit for time served under his original sentence, but that an increase in sentence may be imposed. Probation was not involved.
We hesitate to allow the labels applied to the goals of probation — punishment, deterrence, rehabilitation — to determine the result in this case. It is preferable to look at the burdens of probation to determine the issue involved. Despite some restrictions on a probationer‘s movements, the probationer‘s condition, like a parolee‘s, is “very different from that of confinement in a prison.” Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 2601, 33 L.Ed.2d 484, 495 (1972). In our view, “street time” spent by a defendant on probation cannot be equated with prison time. The probationer is free to move about, with some restrictions; he is encouraged to become and remain employed,
We conclude that defendant cannot demand credit for probation time as a matter of right. This is the prevailing view.
We had referred to defendant‘s residential status in a drug treatment center, Patrick House, in Jersey City. Defendant did not expressly contend that the time spent there should be considered separately in determining whether probation should be equated with prison time for credit purposes. On the record before us, however, we are unable to determine the extent to which defendant‘s liberty had been restrained during the two months or so that he spent there. The record indicates that he was on a methadone program, but tells us nothing more. Accordingly, in denying credit for probation time we do so without prejudice to defendant‘s right to move in the trial court for credit limited to the time he spent at Patrick House. See State v. Smeen, supra. We doubt that a sufficient showing can be made to annul on constitutional grounds a statutory scheme which does not allow for such credit. Out of caution, however, we prefer to leave the issue open until a record is made and the contention is specifically advanced in this or any other case.
As background we note that defendant, born in July 1950, has a history as a juvenile and adult offender, with two previous indeterminate sentences to the Youth Correctional Institution Complex. His criminal conduct continued while on parole from that institution. He asserted that the property crimes in this case were committed to support his addiction to heroin.
We are primarily interested in his behavior after he was released from prison on August 1, 1974 and placed on probation. First defendant spent two months or less in Patrick House. (He claimed at the probation violation hearing that he successfully ended his use of methadone as well as heroin.) In June 1975 he was charged with growing marijuana in a field in Highlands, New Jersey.3 That same month he was arrested in Seaside Heights for possession of stolen property and larceny. Defendant continued to report to the probation department until January 5, 1976, when he made his last visit and advised that his conviction for the disorderly persons marijuana offense was being appealed.
In February 1977 defendant was committed for 30 days for malicious damage and larceny. By then there were five or six detainers lodged against him by New Jersey and New York authorities. These included charges on two counts of burglary, one of possession of stolen property and one of jewelry theft in May 1976 in New York, a disorderly persons offense of contributing to the delinquency of a minor in May 1976, two contempt of court offenses, one of which was for failing to pay a fine, and larceny of a motor vehicle in October 1976 in Ocean County.
Defendant had served only seven months in jail for the underlying serious crimes before he was released on probation. Considerable leniency was accorded him; but he was unfaithful to the obligations of probation. We cannot say that the trial judge abused his discretion in the sentences imposed. See State v. Whitaker, 79 N.J. 503, 512-517 (1979); State v. Knight, 72 N.J. 193 (1976).
Affirmed.
Notes
We note, also, that defendant has been released on parole. This does not moot the appeal, however, because the length of defendant‘s lawful sentence and credit for time served will determine the duration of parole.