STATE VS. JEFFREY L. MOREIRA (13-04-0146, 13-10-0488 AND 13-10-0489, WARREN COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4647-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JEFFREY LOPES MOREIRA,
a/k/a JEFF MOREIRA,
Defendant-Appellant.
______________________________
Submitted June 5, 2019 – Decided June 20, 2019
Before Judges Alvarez and Mawla.
On appeal from Superior Court of New Jersey, Law
Division, Warren County, Accusation Nos. 13-04-
0146, 13-10-0488, and 13-10-0489.
Joseph E. Krakora, Public Defender, attorney for
appellant (Molly O'Donnell Meng, Assistant Deputy
Public Defender, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Adam David Klein, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Defendant Jeffrey L. Moreira appeals from a four-year sentence he
received on May 22, 2018, for violating the terms of his drug court probation.
We affirm.
We take the following facts from the record. In April 2013, defendant
was charged under Accusation Number 13-04-0146 (Acc. No. 0146) with third-
degree distribution of heroin, N.J.S.A. 2C:35-5(a)(1) and (b)(3), and pled guilty
to the charge in May 2013. He was sentenced to a two-year probationary term
conditioned upon ninety days in the county jail, with leave to serve his jail
sentence in the County Labor Assistance Program.
In October 2013, defendant was charged under Accusation Number 13-
10-0488 (Acc. No. 0488) with fourth-degree unlawful taking of a means of
conveyance, N.J.S.A. 2C:20-10(b), and third-degree theft by unlawful taking,
N.J.S.A. 2C:20-3(a). He was also charged under Accusation Number 13-10-
0489 (Acc. No. 0489) with third-degree possession of heroin, N.J.S.A. 2C:35-
10(a)(1). He pled guilty to both accusations pursuant to a plea agreement.
In March 2014, defendant was sentenced to: (1) two years of probation for
each of the charges of Acc. No. 0488, each conditioned upon 364 days in the
county jail; and (2) two years of probation for the single charge of Acc. No.
0489, conditioned upon 364 days in the county jail. These sentences were to
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run concurrently and defendant was allowed to serve up to 180 days of the jail
sentence in a long-term in-patient addiction rehabilitation program after the
program was completed.
Defendant violated the terms of his probation. He failed to: report to his
probation officer at least ten times, cooperate with the required treatment and
counseling, pay financial obligations, and notify probation of his employment
status. Therefore, in May 2016, he pled guilty to a violation of probation (VOP)
under all three accusation numbers. Defendant admitted he was sanctioned
twelve times in drug court, waived his right to a VOP hearing, and pled guilty
to the VOPs under each accusation. The judge terminated defendant's terms of
probation and sentenced him to concurrent five-year terms in drug court under
each accusation number.
Following his guilty pleas, defendant was resentenced in December 2017.
The judge considered defendant's drug court sanctions, VOPs, and positive drug
screens since his admission to drug court. The judge noted the third-degree
counts each carried a five-year prison sentence and the fourth-degree count an
eighteen-month sentence. The judge stated he "had hoped . . . [defendant] would
take it upon [himself] to go into [Veterans Assistance], get evaluated and get
treatment[,]" but he failed to do so. The judge stated that, as a last resort, he
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would order defendant into a long-term in-patient treatment program, and also
ordered him to continue with the terms of drug court probation on all three
accusations, including all fines and penalties.
Defendant was discharged from the in-patient program after less than one
month because he had an altercation and threatened to kill another patient. At
his subsequent VOP hearing, the judge considered testimony from defendant's
probation officer who stated defendant caused the disruption, which prompted
his discharge. The in-patient program discharge note admitted into evidence
corroborated the incident and the probation officer's testimony. The judge
concluded defendant had violated his probation and scheduled his sentencing.
The judge made the following findings at sentencing:
[T]his has been probably one of the most
difficult decisions that the [c]ourt has to make because
of several reasons. One, you're a veteran and I have
enormous respect for veterans. Number two, you're a
[d]rug [c]ourt participant and as [the prosecutor] said in
her colloquy, we bent over backwards to allow you to
stay in [d]rug [c]ourt on all of those different
sanctionable events on the violations of probation.
And while you have been polite, you've never
raised your voice. You've always been nice for lack of
a better term when you appeared before me. You
haven't always been honest. That's for certain. And
you haven't always done the right thing.
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We've basically run out of options. There isn't
any treatment recommendation that hasn't been offered
to you that we could offer again that I could even hope
that you would comply with. I also would say that
because of the number of chances that you've been
given, probation is certainly not warranted any longer
in the case.
And you do have a lot of jail credit. But there has
to be some consequences for your actions. Therefore, I
am going to sentence you to four years New Jersey
State prison, concurrent on all charges. Probation will
be terminated without improvement. . . .
. . . As far as the aggravating and mitigating
factors, aggravating factors [three] and [nine];
mitigating factor [ten] were found on [Acc. No. 0146].
I continue to find aggravating factors [three] and [nine]
as they relate to the underlying offense.
. . . Aggravating factors [three] and [nine] were
also found in [Acc. No. 0488]. Mitigating factors
[four], [six] and [ten] were found. I no longer find
mitigating factors [six] and [ten]. I do find mitigating
factor [four] continues to exist. And on [Acc. No.
0489], aggravating factors [three] and [nine] continue
to exist. [I find] [m]itigating factor [four]. But I no
longer find mitigating factor [ten].
....
. . . [Nine] months, [and twenty-eight] days[] . . .
[o]n a four year sentence the minimum time you would
have to spend in state prison to be eligible for parole.
You obviously have more jail credit than that. But
that's a function of [p]arole, not this [c]ourt. And that's
an estimated time that you have to spend in custody.
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A judgment of conviction entered terminating probation without
improvement, and imposing a four-year prison sentence as to all third-degree
counts and an eighteen-month prison sentence for the sole fourth-degree count,
all to run concurrently. Under Acc. No. 0146, the judge applied 350 days of jail
credit, 230 days of Rosado1 credit, and 120 days of prior-service credit to the
sentence imposed. On Acc. No. 0488, the judge applied 331 days of jail credit,
241 days of Rosado credit, and 120 days of prior-service credit to the sentence
imposed. As to Acc. No. 0489, the judge applied 338 days of jail credit, 234
days of Rosado credit, and 120 days of prior-service credit to the sentence
imposed.
I.
Defendant raises the following point on appeal:
NEW JERSEY'S PROBATION REVOCATION
STATUTE ALLOWS A JUDGE TO ENGAGE IN
FACT FINDING THAT RESULTS IN A SENTENCE
ABOVE THE STATUTORY MAXIMUM AND SO
VIOLATES THE SIXTH AMENDMENT OF THE
UNITED STATES CONSTITUTION.
Our review of a sentencing decision is limited. State v. Miller, 205 N.J.
109, 127 (2011). We do "not substitute [our] judgment for that of the trial court."
1
State v. Rosado, 131 N.J. 423 (1993).
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State v. Burton, 309 N.J. Super. 280, 290 (App. Div. 1998) (citing State v. Roth,
95 N.J. 334, 365 (1984)). Instead, we "assess the aggravating and mitigating
factors to determine whether they 'were based upon competent credible evidence
in the record.'" State v. Bieniek, 200 N.J. 601, 608 (2010) (quoting Roth, 95
N.J. at 364-65). We will "modify sentences when the application of the facts to
the law is such a clear error of judgment that it shocks the judicial conscience."
Roth, 95 N.J. at 364 (citing State v. Whitaker, 79 N.J. 503, 512 (1979)).
II.
Defendant argues the imposition of a four-year sentence for a VOP, in
addition to the four-plus years of probation he served, is unconstitutional and in
violation of the Sixth Amendment pursuant to Apprendi v. New Jersey, 530 U.S.
466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). Defendant also
claims he did not receive custody credit for the time spent on probation and in
drug court.
"With respect to a defendant who violates a probationary condition, the
initial question is whether the violation justifies revocation of probat ion. Some
violations are more serious than others." State v. DiAngelo, 434 N.J. Super.
443, 455 (App. Div. 2014) (quoting State v. Baylass, 114 N.J. 169, 175 (1989)).
Once a court determines "the defendant has inexcusably
failed to comply with a substantial requirement
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imposed as a condition of the order or if he has been
convicted of another offense, [the court] may revoke
the suspension or probation and sentence or resentence
the defendant," N.J.S.A. 2C:45–3(a)(4), imposing "any
sentence that might have been imposed originally for
the offense of which he was convicted." N.J.S.A.
2C:45–3(b).
[Ibid. (alteration in original).]
The Comprehensive Drug Reform Act of 1987, N.J.S.A. 2C:35-1 to -31,
provides courts with alternatives to traditional disposition, such as special
probation, i.e., drug court. Similar to the court's power to impose jail time
following the revocation of regular probation, "[i]f the court permanently
revokes the person's special probation pursuant to this subsection, the court shall
impose any sentence that might have been imposed, or that would have been
required to be imposed, originally for the offense for which the person was
convicted or adjudicated delinquent." N.J.S.A. 2C:35-14(f)(4).
"Special probation is designed to divert otherwise prison-bound offenders
into an intensive and highly specialized form of probation designed to 'address
in a new and innovative way the problem of drug-dependent offenders caught in
a never-ending cycle of involvement in the criminal justice system.'" State v.
Bishop, 429 N.J. Super. 533, 540 (App. Div. 2013) (quoting State v. Meyer, 192
N.J. 421, 434-35 (2007)).
A-4647-17T2
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[S]tated in very broad terms, offenders sentenced to
regular probation are not necessarily prison bound,
based upon the nature and seriousness of their crimes
and the general sentencing provisions of the Code. On
the other hand, offenders sentenced to special probation
are prison bound because their offenses, deemed more
serious in the Code, carry a mandatory or presumptive
term of imprisonment. Their eligibility for this form of
non-prison sentence is not determined by weighing
aggravating and mitigating factors as is the case with
regular probation, but by reference to the enumerated
statutory requirements listed in N.J.S.A. 2C:35–14.
[Id., 429 N.J. Super. at 541 (emphasis added) (citing
State v. Clarke, 203 N.J. 166, 175 (2010)).]
Furthermore, "[t]he 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." In re State ex rel. C.V., 201 N.J. 281, 297
(2010) (quoting State v. Ryan, 86 N.J. 1, 8 (1981)). "Imposing the maximum
sentence for the original offense after revocation of probation without grand jury
indictment or trial by jury is not unconstitutional, since the new sentence is only
a sanction for defendant's original offense for which he had been properly tried."
Ryan, 86 N.J. at 8 (emphasis added) (citation omitted).
In deciding a sentence for a probation violation the "court should consider
the aggravating factors found to exist at the original hearing and the mitigating
factors as affected by the probation violations." State v. Baylass, 114 N.J. 169,
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178 (1989). While it may "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[,]" such a sentence is permissible where the aggravating factors
outweigh the mitigating. Ibid.Here, there was ample evidence to support the sentence imposed. The
charge at issue was defendant's possession of heroin under Acc. No. 0489.
N.J.S.A. 2C:43-6(a)(3) states "[i]n the case of a crime of the third degree, for a
specific term of years which shall be fixed by the court and shall be between
three years and five years[.]" The four-year sentence given after defendant's
probation was revoked was less than the five-year maximum and within the
range of the original sentence, and thus permitted by N.J.S.A. 2C:35-14.
The trial judge properly considered the aggravating factors assigned
during the original disposition of Acc. No. 0489, finding "aggravating factors
[three] and [nine] continue[d] to exist" from the original sentencin g. The judge
also continued to find mitigating factor four, but did not continue to find
mitigating factor ten after the VOP was committed. Thus, the judge adhered to
In re State ex rel. C.V. by considering the aggravating factors as to the original
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charge and the mitigating factors as to the VOP itself, and violated neither
Apprendi2 nor Blakely. 3
A presumption of imprisonment existed when defendant was sentenced to
drug court after he failed to comply with his previous probation terms and
committed multiple VOPs. Bishop, 429 N.J. Super. at 541. The judge noted the
multiple opportunities given to defendant, that the court had "run out of
[treatment] options[,]" and correctly concluded probation was no longer
warranted. Thus, probation followed by incarceration was not an extended
sentence and does not shock the judicial conscience.
Finally, we reject defendant's argument regarding custody credit. The
Supreme Court has noted:
[T]he thrust of . . . [Rule 3:21-8] is to restrict
credit to "custodial" confinements, either in jail or in a
state hospital. Ordinarily, a defendant's confinement is
custodial if it is imposed by a court, see State v. Lee,
60 N.J. 53, 58 (1972), and involuntary in the sense that
a defendant is not "at liberty by an exercise of his own
will to choose to leave that facility." State v. Smeen,
147 N.J. Super. 229, 233 (App. Div. 1977). Thus, in
2
Holding any fact other than a prior conviction which increases a penalty
beyond the statutory maximum "must be submitted to a jury, and proved beyond
a reasonable doubt." Apprendi, 530 U.S. at 490.
3
Reversing the imposition of a ninety-month sentence where a defendant was
subject to a fifty-three-month sentence because the sentencing court considered
facts not in evidence or found by a jury. Blakely, 542 U.S. at 303-04.
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State v. Reyes, 207 N.J. Super. 126 (App. Div. 1986),
the Appellate Division denied credit to [a] defendant
for time spent in a residential drug treatment program
as a condition of probation. The court concluded that
"[a]ttendance at such a program is not the equivalent of
'custody' so long as there are no physical restraints and
a participant retains the option to leave without
committing an additional crime." Id. at 144.
[State v. Towey, 114 N.J. 69, 85–86 (1989) (last
alteration in original) (emphasis added).]
Here, the judge credited defendant with the appropriate amount of jail time
credit, Rosado credit, and gap-time credit under each accusation. Pursuant to
Towey, the time defendant spent on special probation at the in-patient program
did not qualify as custody credit because it was a condition of his probation, not
a form of custody.
Affirmed.
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