STATE OF NEW JERSEY VS. WALEK P. DUNLAP (12-05-0858, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4526-17T1
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent, February 6, 2020
APPELLATE DIVISION
v.
WALEK P. DUNLAP,
a/k/a MONTANA,
Defendant-Appellant.
_________________________
Submitted November 18, 2019 – Decided February 6, 2020
Before Judges Messano, Vernoia and Susswein.
On appeal from the Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No. 12-
05-0858.
Joseph E. Krakora, Public Defender, attorney for
appellant (Rochelle Mareka Amelia Watson, Deputy
Public Defender, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Lauren Bonfiglio, Deputy Attorney
General, of counsel and on the brief).
The opinion of the court was delivered by
SUSSWEIN, J.S.C. (temporarily assigned).
This case probes the boundaries of the United States Supreme Court's
landmark Sixth Amendment decision in Apprendi v. New Jersey, 530 U.S. 466
(2000). Defendant, Walek P. Dunlap, appeals from a sentence of ten years in
prison for a second-degree robbery conviction imposed after violating special
probation (Drug Court), N.J.S.A. 2C:35-14. Defendant argues the revocation
and resentencing provisions of the special probation statute, N.J.S.A. 2C:35 -
14(f), permit a judge to engage in prohibited judicial fact finding. He
specifically contends the imposition of a ten-year prison sentence after having
already served four years on special probation is an unconstitutional extension
of the statutory ten-year maximum sentence for a second-degree conviction
prescribed by N.J.S.A. 2C:43-6(a)(2), contrary to Apprendi, 530 U.S. at 490.
In addition to his novel constitutional arguments, defendant contends the
resentencing court did not follow sentencing guidelines and imposed an
excessive sentence that shocks the judicial conscience. We reject defendant's
contentions and affirm his sentence.
I.
We begin by briefly summarizing the circumstances of the robbery. The
victim drove to a gas station where he purchased marijuana from defendant for
$20. The encounter was recorded on surveillance video. Defendant and the
victim met again at the gas station about twenty minutes after the first
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transaction. This time, defendant and a second individual entered the victim's
car. Defendant sat in the front passenger seat while the other person occupied
the rear seat. The two passengers directed the victim to drive to an apartment
complex. Once parked, the rear-seat passenger grabbed the victim around the
neck, put a gun to his head, and told him to close his eyes, warning, "If you
move, I'll kill you." Defendant took the victim's jacket, wallet, hat, money,
and car keys. The robbers then exited the vehicle and fled.
A Middlesex County Grand Jury returned a four-count indictment
charging defendant with (1) first-degree robbery contrary, to N.J.S.A. 2C:15-1;
(2) second-degree conspiracy to commit armed robbery, contrary to N.J.S.A.
2C:5-2; (3) second-degree unlawful possession of a firearm, contrary to
N.J.S.A. 2C:39-5(b); and (4) second-degree possession of a weapon for an
unlawful purpose, contrary to N.J.S.A. 2C:39-4(a).
Defendant entered a conditional guilty plea to an amended count of
second-degree robbery. Defendant admitted he took the victim's possessions
by threat of force. However, defendant denied using a gun. In exchange for
the guilty plea, the State agreed to reduce the first-degree robbery charge to
second degree1 and to dismiss the other charges in the indictment.
1
Defendant would have been ineligible for special probation had he been
convicted of first-degree robbery. N.J.S.A. 2C:35-14(b)(1), (2). He also
A-4526-17T1
3
The plea agreement presented two distinct sentencing options contingent
on whether defendant was admitted to Drug Court. If defendant's application
to Drug Court were denied, the plea agreement provided that the term of
imprisonment would be capped at six years, subject to the requirements of the
No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In the event defendant's
application to Drug Court was successful, the agreement provided for an
alternate sentence of ten years in prison, subject to NERA. The alternate
sentence could be imposed if defendant were subsequently revoked from Drug
Court in accordance with N.J.S.A. 2C:35-14(f).
The trial court adjourned sentencing to permit defendant to apply to
Drug Court. At the sentencing hearing, the trial court admitted defendant into
Drug Court over the State's objection. Defendant then entered a new guilty
plea. The new guilty plea included the alternate sentence recommendation of
ten years in prison were defendant to be revoked from Drug Court. The court
explained to defendant the new guilty plea replaced and superseded the
original conditional plea. The court further explained that if special probation
were revoked and defendant were resentenced to prison, that sentence would
would have been ineligible if he had possessed a firearm at the time of the
present offense. N.J.S.A. 2C:35-14(a)(5).
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not be capped at six years. Rather, the court made clear, defendant could be
resentenced to a ten-year term of imprisonment.
The sentencing court found aggravating factors three (the risk that
defendant will commit another offense), six (the extent of defendant's prior
criminal record and the seriousness of his convictions), and nine (the need to
deter defendant and others). N.J.S.A. 2C:44-1(a)(3), (6), (9). The court found
no mitigating factors. The court concluded the aggravating factors
substantially outweighed the mitigating factors but not to the extent that the
court would need to reject the plea agreement. The court sentenced defendant
under the new guilty plea to a term of five years of special probation in Drug
Court, N.J.S.A. 2C:35-14(a), with an alternate sentence of ten years in prison
subject to NERA.
Defendant's performance in Drug Court was checkered with setbacks.
After almost four years, the Probation Division filed a statement of charges
alleging defendant had committed a series of violations of special probation
falling into five distinct categories: (1) defendant tested positive for or
admitted to the use of a controlled dangerous substance on six occasions; (2)
defendant failed to report to his probation officer; (3) defendant was charged
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with multiple new offenses; 2 (4) defendant twice failed to cooperate in
examinations, tests, and counseling as directed by his probation officer; and
(5) defendant failed to pay court-imposed financial obligations.
Defendant appeared before a different judge than the one who originally
sentenced him and entered a guilty plea to violating conditions of special
probation. Defendant admitted to all of the allegations in the statement of
charges.
At a revocation-resentencing hearing, the court terminated defendant's
participation in Drug Court and revoked special probation. The court
considered the applicable aggravating and mitigating factors and imposed the
alternate sentence of ten years in prison contemplated in the plea agreement.
The sentencing court credited defendant with time served in county jail and in
a residential treatment facility pursuant to Rule 3:21-8 and N.J.S.A. 2C:35-
14(f)(4). He was not credited with time spent on special probation while
participating in non-residential treatment. Defendant filed a timely appeal,
challenging the ten-year prison sentence.
II.
Defendant presents the following contentions for our consideration:
2
While on special probation, defendant incurred new charges for simple
assault, theft by unlawful taking, and obstruction of the administration of law.
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POINT I
NEW JERSEY'S PROBATION REVOCATION
STATUTE ALLOWS A JUDGE TO ENGAGE IN
FACT FINDING THAT RESULTS IN A SENTENCE
ABOVE THE STATUTORY MAXIMUM AND
THEREFORE VIOLATES THE SIXTH
AMENDMENT OF THE UNITED STATES
CONSTITUTION.
POINT II
A REMAND FOR RESENTENCING IS REQUIRED
BECAUSE THE COURT IMPOSED AN
EXCESSIVE SENTENCE, FAILED TO ABIDE BY
THE CRIMINAL CODE, AND SUMMARILY
IMPOSED THE "ALTERNATIVE SENTENCE"
WITHOUT CONDUCTING AN INDIVIDUALIZED
SENTENCING ASSESSMENT.
III.
Defendant contends his ten-year prison sentence is illegal on several
grounds. An illegal sentence is one that is either unconstitutional or not
authorized by the New Jersey Code of Criminal Justice. State v. Zuber, 227
N.J. 422, 437 (2017) (first citing State v. Tavares, 286 N.J. Super. 610, 618
(App. Div. 1996), then citing State v. Acevedo, 205 N.J. 40, 45 (2011)); see
also R. 3:21-10(b)(5) (permitting the correction of a sentence not authorized by
the New Jersey Code of Criminal Justice). We first address defendant's
constitutional argument.
A-4526-17T1
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A.
Defendant contends that N.J.S.A. 2C:35-14(f) violates Sixth Amendment
rights first recognized by the United States Supreme Court in Apprendi. In
State v. Hawkins, ___ N.J. Super. ___, ___ (App. Div.) (slip op. at 2), certif.
denied, ___ N.J. ___ (2019), we rejected essentially the same argument
defendant raises in this appeal. In that case, we affirmed the defendant's eight-
year prison sentence on his second-degree conviction "without ruling directly
on . . . whether the imposition of the maximum statutory custodial sentence
plus special probation would be constitutionally defective." __ N.J. Super. __
(slip op. at 12).
In the case before us, defendant was in fact resentenced to the maximum
statutory custodial sentence after having served several years on special
probation. We therefore confront the issue left open in Hawkins. In doing so,
we embrace the reasoning in Hawkins that a year on special probation
undergoing outpatient treatment does not count as a year spent in prison. We
further hold that Apprendi principles simply do not apply to non-custodial
forms of punishment, such as special probation. We find additional support
for this conclusion in the United States Supreme Court's most recent
pronouncement in the line of Apprendi cases, United States v. Haymond, 588
U.S. __, 139 S. Ct. 2369 (2019).
A-4526-17T1
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Defendant's constitutional argument rests on two faulty premises. One
relates to the specific circumstances under which his special probation was
revoked. The other relates to his interpretation of what constitutes the
"prescribed statutory maximum" sentence under Apprendi. We address both
analytical flaws in turn.
To provide context for our review of defendant's proposed expansion of
the Apprendi doctrine, we begin by summarizing Sixth Amendment principles
that are now firmly rooted in our constitutional jurisprudence. In Apprendi,3
the United States Supreme Court held that "[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt." 530 U.S. at 490; see also Ring v. Arizona, 536 U.S. 584,
602 (2002) ("[I]f a State makes an increase in a defendant's authorized
3
The Court addressed a New Jersey hate-crime statute that prescribed a range
of sentences greater than the range that ordinarily applies to the degree of
crime for which the defendant was convicted, known as an "extended term."
530 U.S. at 468–69 (quoting N.J.S.A. 2C:44-3(e) (repealed 2001)). The Court
concluded the extended-term sentencing enhancement provision impermissibly
intruded on the jury's role as fact finder of all essential elements of guilt
because this enhanced sentence was imposed based on the sentencing judge's
finding by a preponderance of the evidence that the underlying offense was
motivated by racial bias. Id. at 471, 490; see also Blakely v. Washington, 542
U.S. 296, 303–05 (2004) (applying Apprendi to a Washington statute that
authorized an "exceptional sentence" upon a judge's finding of deliberate
cruelty).
A-4526-17T1
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punishment contingent on the finding of a fact, that fact—no matter how the
State labels it—must be found by a jury beyond a reasonable doubt.").
"In deciding the question of what facts must be subject to a jury finding,
'the relevant inquiry is one not of form, but of effect—does the required
finding expose the defendant to a greater punishment than that authorized by
the jury's guilty verdict?'" State v. Natale, 184 N.J. 458, 473 (2005) (quoting
Apprendi, 530 U.S. at 494). "[I]t is unconstitutional," the Apprendi Court
held, "for a legislature to remove from the jury the assessment of facts that
increase the prescribed range of penalties to which a criminal defendant is
exposed." 530 U.S. at 490 (alteration in original) (quoting Jones v. United
States, 526 U.S. 227, 252–53 (1999) (Stevens, J., concurring)).
Sentencing courts still have discretion, however, to "tak[e] into
consideration various factors relating both to offense and offender [when]
imposing a judgment within the range prescribed by statute." Id. at 481
(emphasis omitted). The critical case-sensitive question, therefore, is whether
the sentence falls within the range of sentences authorized by statute, that is,
the range of sentences that can be imposed "solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant." Blakely, 542 U.S.
at 303 (emphasis omitted).
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B.
This brings us to the first flaw in defendant's constitutional argument. In
this instance, there was no judicial fact finding of the type prohibited by
Apprendi. Defendant not only admitted his guilt to the underlying substantive
crime, second-degree robbery, but also admitted to the facts constituting the
violations of special probation that resulted in revocation and re-sentencing.
But even were we to assume that judicial fact finding occurred, we still reject
defendant's argument as to how Apprendi principles extend to resentencing
following revocation of special probation.
We do not doubt that constitutional limitations on a court's authority to
impose an original sentence also apply to a court's authority to impose a new
sentence following revocation of special probation. Cf. Haymond, 588 U.S.
__, 139 S. Ct. 2369 (plurality opinion) (applying Apprendi principles to
imposition of a new custodial sentence following violation of supervised
release under federal law). The issue presented by defendant's constitutional
argument, therefore, is not whether Apprendi principles apply to post-
revocation resentencing proceedings, but rather how the time spent on special
probation prior to revocation should be treated for purposes of Apprendi
analysis.
A-4526-17T1
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The fundament of defendant's constitutional argument is that when
determining whether the statutory maximum sentence prescribed by N.J.S.A.
2C:43-6(a)(2)4 has been exceeded we must combine the term of imprisonment
imposed at re-sentencing with the period of time defendant has already served
on non-custodial special probation.5 In essence, defendant contends the Sixth
4
Pursuant to N.J.S.A. 2C:43-7.2(c), every sentence for a NERA-designated
crime must include a period of parole supervision. Because parole can be
revoked and a defendant returned to prison to serve the remainder of the parole
supervision period, it is possible that a person convicted of a NERA crime may
serve more time in prison than the maximum term prescribed in N.J.S.A.
2C:43-6(a). This framework does not raise Apprendi concerns, however,
because the prescribed statutory maximum for purposes of Apprendi analysis
is fixed by a legislature. With respect to NERA crimes, the New Jersey
Legislature has made clear that the maximum possible period of imprisonment
is determined by combining the prison term authorized by N.J.S.A. 2C:43 -6(a)
with the parole supervision term prescribed by N.J.S.A. 2C:43-7.2(c).
Furthermore, the imposition of a prescribed parole supervision term is
automatic based on the degree of the NERA conviction and therefore does not
rely on any judicial fact finding.
5
In Hawkins, we noted that, "[i]f we accept the defense argument, it follows
that a [violation of probation] judge may either conduct a jury trial or credit a
defendant with the years served on probation against the possible maximum
prison term." __ N.J. Super. at __ (slip op. at 10). We add that either of those
options would constitute a significant change to the way that probation
violations are addressed. See State v. Clarity, 454 N.J. Super. 603, 613 (App.
Div. 2018) ("[T]he subsequent consequences of violating probation are
considered part of the corrections process, not a separate prosecution and
conviction."). For one thing, having juries decide violation of probation
hearings would present significant logistical challenges. Furthermore , jurors
would necessarily know from the outset that the defendant was convicted of an
offense and placed on probation with specified conditions. Ordinarily, to
avoid unfair prejudice, jurors are not told about a defendant's prior conviction
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Amendment requires courts to treat imprisonment and non-custodial probation
as equal and indistinguishable for purposes of Apprendi analysis.
This brings us to the second faulty premise on which defendant's
constitutional argument relies. We reject the notion that time spent in the
community on non-custodial special probation is functionally equivalent to
time spent incarcerated. See Hawkins, __ N.J. Super. at __ (slip op. at 11)
("[W]e do not accept that a year of probation is equal to a year of
incarceration, or that eight years in prison plus five years of probation is
greater than ten years in prison . . . ."). Non-custodial probation is
qualitatively different from incarceration, as authoritative precedents clearly
establish.
before deciding whether he or she committed an unlawful act. See State v.
Ragland, 105 N.J. 189, 193 (1986) (requiring bifurcation when a defendant is
charged with unlawful possession of a weapon and possession by a convicted
felon).
The other option presented in Hawkins—awarding prison credit for the
entire time spent on probation—would progressively reduce a probationer's
incentive to comply with the terms and conditions of probation. At some
point, revocation of probation might result in no more than the defendant being
resentenced to time served. Relatedly, knowing that delay reduces the
quantum of imprisonment that might be imposed at resentencing, probation
officers and courts might be less willing to defer the filing of violation of
probation charges for less serious violations and during the early stages of the
probationary period. In this case, defendant was given numerous bites at the
rehabilitation apple, accumulating at least eleven distinct violations over the
span of several years before the Probation Division filed a formal statement of
charges, initiating the revocation process.
A-4526-17T1
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In State v. Evers, for example, we concluded that "[p]robation is not the
same as incarceration," and therefore the "defendant [was] not entitled to credit
for time served on probation because his probation was not as restrictiv e and
confining as a custodial sentence." 368 N.J. Super. 159, 173 (App. Div. 2004);
see also United States v. Gordon, 961 F.2d 426, 432–33 (3d Cir. 1992)
("[P]robation time cannot be converted into prison time with any mathematical
precision."); Clarity, 454 N.J. Super. at 606, 611 (holding probation was not
confinement for purposes of determining, under the persistent offender statute ,
N.J.S.A. 2C:44-3(a), whether the defendant had been released from
confinement within ten years preceding the instant offense).
We see no reason to retreat from these precedents and hold for the first
time that a day serving non-custodial special probation while undergoing
outpatient treatment is equivalent punishment to a day of incarceration. In this
instance, the Legislature has explicitly set forth when and to what extent a
defendant is entitled to credit against a prison sentence imposed following
revocation of special probation. N.J.S.A. 2C:35-14(f)(4) provides in pertinent
part:
If the court determines or is required pursuant to any
other provision of this chapter or any other law to
impose a term of imprisonment, the person shall
receive credit for any time served in custody pursuant
to N.J.S.A. 2C:45-1 or while awaiting placement in a
treatment facility pursuant to [N.J.S.A. 2C:35-14], and
A-4526-17T1
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for each day during which the person satisfactorily
complied with the terms and conditions of special
probation while committed pursuant to [N.J.S.A.
2C:35-14] to a residential treatment facility.
[(Emphases added).]
It is clear from this provision that the Legislature did not intend to award
credit for the entirety of the time spent on special probation. As we have
already noted, under Apprendi, it is the province of a legislature by statute to
determine the maximum sentence that may be imposed based on a conviction.
In Hawkins, we explained that,
[t]he statutory scheme delineates that the maximum
custodial sentence for a second-degree crime is ten
years in prison, unless a defendant applies for and is
accepted into special Drug Court probation, in which
case he may receive a sentence of five years of Drug
Court with the risk of spending ten years in prison if
he violates that special probation, with credit given for
time spent in jail or inpatient treatment.
[__ N.J. Super. at __ (slip op. at 11).]
Applying that understanding of the statutory framework to the case before us,
the trial court resentenced defendant on his second-degree robbery conviction
to the maximum prison term authorized by N.J.S.A. 2C:43-6(a)(2) but not
more than that maximum.
In reaching this conclusion, we do not mean to suggest that a
probationary sentence is not a form of punishment. The point, rather, is that
A-4526-17T1
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non-custodial punishment is substantively different from incarceration. We
read Apprendi and its progeny to focus solely on the latter form of punishment,
not the former.
We therefore hold that when determining whether the "prescribed
statutory maximum" has been exceeded for purposes of Apprendi analysis, we
look to the length of time the defendant is incarcerated, not to the length of
time he or she serves on non-custodial probation. We note in this regard that
the United States Supreme Court has never held that non-custodial sentences
raise Apprendi concerns. In the absence of explicit instruction from higher
courts, and especially considering the significant consequences were we to
accept defendant's extrapolation of Apprendi, see supra note 5, we decline to
untether the Apprendi doctrine from its historical moorings and expand it to
apply to non-custodial forms of punishment.
The United States Supreme Court's recent decision in Haymond supports
this conclusion. In that case, the Court confronted the application of Apprendi
principles in the context of federal supervised release. A jury found the
defendant guilty of possessing child pornography. 588 U.S. __, 139 S. Ct. at
2373 (plurality opinion). Federal law authorized the judge to impose a prison
term of "between zero and ten years." Ibid. (citing 18 U.S.C. § 2252(b)(2)).
Based on the defendant's criminal background and characteristics, the judge
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sentenced the defendant to thirty-eight months in prison, followed by ten years
of supervised release. Ibid.
Haymond completed the custodial portion of his sentence and was on
supervised release when federal authorities discovered child pornography on
his cellphone and computers. Id. at 2374. At a hearing, a judge found by a
preponderance of the evidence that Haymond had violated a condition of
supervised release. Ibid. The question then turned to the appropriate sentence
in response to the violation. Federal law ordinarily would have permitted the
judge to sentence Haymond "to between zero and two additional years in
prison." Ibid. (citing 18 U.S.C. § 3583(e)(3)). However,
[u]nder [18 U.S.C.] § 3583(k), . . . if a judge finds by
a preponderance of the evidence that a defendant on
supervised release committed one of several
enumerated offenses, including the possession of child
pornography, the judge must impose an additional
prison term of at least five years and up to life without
regard to the length of the prison term authorized for
the defendant's initial crime of conviction.
[Ibid.]
The judge thus was required to impose a minimum prison sentence of five
years for the violation of supervised release, even though the defendant's
original conviction under § 2252(b)(2) did not prescribe a minimum term of
imprisonment. Id. at 2375.
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A sharply divided Court struck down § 3583(k). A four-justice plurality
held § 3583(k) violated the court's decision in Alleyne v. United States, 570
U.S. 99 (2013), which held "'Apprendi applies with equal force to facts
increasing the mandatory minimum' as it does to facts increasing the statutory
maximum penalty." Haymond, 588 U.S. __, 139 S. Ct. at 2378 (quoting
Alleyne, 570 U.S. at 112). Applying that principle, the Haymond plurality
deemed § 3583(k) unconstitutional because judicial fact finding triggered a
mandatory sentence of at least five years in prison when, on the basis of the
facts found by the jury, the defendant was subject to as little as no years in
prison. Ibid.
The circumstances in Haymond that prompted the Court to find an
Apprendi violation are clearly distinguishable from the case before us. In stark
contrast to § 3583(k), N.J.S.A. 2C:35-14(f) does not prescribe a new
mandatory minimum sentence. Rather, our statute incorporates by reference
the minimum and maximum sentences that could have been imposed originally
based on defendant's conviction. Specifically, N.J.S.A. 2C:35-14(f)(4)
provides that,
[i]f the court permanently revokes the [defendant'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.
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Importantly, the Haymond plurality distinguished the defective federal
supervised release statute at issue before it from probation and parole, which it
noted "have usually been understood to comport with the Fifth and Sixth
Amendments." Haymond, 588 U.S. __, 139 S. Ct. at 2381 (plurality opinion).
The plurality explained that probation and parole comply with Apprendi
principles because, upon finding a violation, "a judge generally could sentence
the defendant to serve only the remaining prison term authorized by statute for
his [or her] original crime of conviction." Id. at 2382. "Thus, a judge could
not imprison a defendant for any longer than the jury's factual findings
allowed—a result entirely harmonious with the Fifth and Sixth Amendments."
Ibid. New Jersey's special probation revocation law is just the sort of
traditional probation statute the Haymond plurality deemed "to comport with
the Fifth and Sixth Amendments." Id. at 2381.
It is also noteworthy that when describing the maximum allowable
sentence following a violation of supervised release, the Haymond plurality
made no mention of the non-custodial portion of the sentence. The plurality
opinion, in other words, does not pronounce, or even intimate, that as a matter
of constitutional imperative, the time a defendant has already spent out of
prison on supervised release must be added to the custodial sentence for
A-4526-17T1
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purposes of determining whether the prescribed statutory maximum has been
exceeded.
Under federal law, the period of incarceration and ensuing period of
supervised release are deemed to be "distinct aspects" of punishment. United
States v. Work, 409 F.3d 484, 489 (1st Cir. 2005). Accordingly, "courts
routinely have held that the combined sentence of years of imprisonment plus
years of supervised release may exceed the statutory maximum number of
years of imprisonment authorized by the substantive statute applicable to the
crime of conviction." Ibid.
If defendant's expansive interpretation of Apprendi were correct, the
federal statutory scheme upheld in Work and revisited in Haymond would run
afoul of the Sixth Amendment unless time spent on supervised release before
revocation were treated the same as time spent in prison. However, §
3583(e)(3) expressly provides to the contrary that the new sentence following
revocation of supervised release is imposed "without credit for time previously
served on postrelease supervision." 6 It bears emphasis that the plurality made
no mention of any constitutional concern with this statutory feature, even as
6
We note the plurality decision reproduces the "pertinent part" of §
3583(e)(3), including the provision that expressly prohibits awarding credit for
time previously served on postrelease supervision. 588 U.S. at __ n.1, 139 S.
Ct. at 2374 n.1.
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the Court struck down a specific mandatory minimum sentencing provision of
that statute on Apprendi grounds. The failure to allude to any constitutional
problem with the statutory feature that treats time on supervised release so
differently from time spent in prison is telling. In our view this confirms that
the Court never contemplated that Apprendi principles might possibly extend
to forms of punishment other than minimum and maximum terms of
imprisonment.
We find further support for our conclusion that the Supreme Court never
meant for Apprendi to apply to non-custodial forms of punishment in the
plurality's response to concerns expressed by the dissenting Justices. The
dissent complained, "[t]he plurality opinion appears to have been carefully
crafted for the purpose of laying the groundwork for later decisions of much
broader scope." 588 U.S. at __, 139 S. Ct. at 2386 (Alito, J., dissenting). The
plurality responded to those concerns about the future expansion of the
Apprendi doctrine, noting:
Besides, even if our opinion could be read to cast
doubts on § 3583(e) and its consistency with
Apprendi, the practical consequences of a holding to
that effect would not come close to fulfilling the
dissent's apocalyptic prophecy. In most cases
(including this one), combining a defendant's initial
and post-revocation sentences issued under § 3583(e)
will not yield a term of imprisonment that exceeds the
statutory maximum term of imprisonment the jury has
authorized for the original crime of conviction.
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[588 U.S. __, 139 S. Ct. at 2384 (plurality opinion)
(emphases added).]
Notably, in this pointed discussion of the potential breadth of Apprendi's
reach, the plurality referred to the combination of two periods of incarceration,
not to the combination of a period of incarceration and a period of supervised
release when describing a composite sentence that might conceivably exceed
the "statutory maximum." The point simply is that even as the plurality and
dissenting Justices argued vociferously about the prospects for expanding the
Apprendi doctrine, no one raised the possibility of an expansion of the type
and to the degree defendant urges us to accept in this appeal.
In sum, we read the Haymond plurality and dissenting opinions to be
consistent with our conclusion that Apprendi, Blakely, Alleyne, and Ring
focus exclusively on prison sentences and simply do not apply to non-custodial
probationary sentences.
IV.
We turn next to defendant's more traditional sentencing arguments. He
contends the court failed to comply with sentencing guidelines and imposed an
excessive sentence that shocks the judicial conscience. Defendant argues the
court summarily imposed the sentence contemplated in the plea agreement
without conducting an individualized assessment of defendant's crime and his
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personal background. We have reviewed the record in light of the applicable
legal principles and conclude that contrary to defendant's contentions, the trial
court conducted a thorough and thoughtful analysis of all relevant
circumstances pertaining both to the offense and his personal background.
Sentencing determinations are entitled to deference. State v. Fuentes,
217 N.J. 57, 70 (2014). Appellate courts are not to substitute their judgment
for the trial court's judgment simply because the appellate court would have
reached a different result. State v. Lawless, 214 N.J. 594, 606 (2013).
The appellate court must affirm the sentence unless
(1) the sentencing guidelines were violated; (2) the
aggravating and mitigating factors found by the
sentencing court were not based upon competent and
credible evidence in the record; or (3) "the application
of the guidelines to the facts of [the] case makes the
sentence clearly unreasonable so as to shock the
judicial conscience."
[Fuentes, 217 N.J. at 70 (alteration in original)
(quoting State v. Roth, 95 N.J. 334, 364–65 (1984)).]
Furthermore, "[a] sentence imposed pursuant to a plea agreement is presumed
to be reasonable because a defendant voluntarily '[waived] . . . his right to a
trial in return for the reduction or dismissal of certain charges,
recommendations as to sentence and the like.'" Id. at 70–71 (alteration in
original) (quoting State v. Davis, 175 N.J. Super. 130, 140 (App. Div. 1980)).
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The record before us confirms that the resentencing judge reviewed the
facts from the presentence report and defendant's plea colloquy. He not ed the
evidence in the record that a gun was involved in the robbery but accepted
defendant's statement that he did not possess the weapon. He considered
defendant's employment and educational status, as well as defendant's mental
health and history of substance abuse. The sentencing judge also reviewed
defendant's criminal history of juvenile adjudications.
The judge's assessment of the relevant circumstances led him to find
aggravating factors three (risk of recidivism) and nine (need to deter ).
N.J.S.A. 2C:44-1(a)(3), (9). The sentencing judge concluded with respect to
aggravating factor three that there was a strong risk defendant would reoffend
until he successfully managed his substance abuse. He found no mitigating
factors.
The court considered but ultimately rejected defendant's argument for
mitigating factor four (substantial grounds tending to excuse or justify
defendant's conduct though failing to establish a defense). N.J.S.A. 2C:44 -
1(b)(4). Defendant claimed he was under the influence of Percocet, cocaine,
beer, and marijuana at the time of the offense. The court concluded there was
insufficient evidence establishing the degree to which defendant was under the
influence during the robbery and to what extent that may have excused his
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conduct. See Roth, 95 N.J. at 364 (requiring any factors, aggravating or
mitigating, found by the court to be supported by competent and credible
evidence). Additionally, the court considered and ultimately rejected
mitigating factor ten (likelihood of responding positively to probation) in view
of defendant's violations of special probation. N.J.S.A. 2C:44-1(b)(10).
Because there were no mitigating factors, the court found the aggravating
factors substantially outweighed the mitigating factors.
The record clearly shows that the sentencing judge did not summarily
impose the sentence contemplated by the plea agreement, as defendant now
asserts. Rather, the sentencing judge noted only that the plea agreement was
entitled to a presumption of reasonableness. That observation comports with
our Supreme Court's holding in Fuentes, 217 N.J. at 70. Having found that the
aggravating factors substantially outweighed the mitigating factors, the court
concluded it was in the interest of justice to impose the recommended
sentence.
Defendant argues the resentencing court improperly considered
defendant's addiction in finding aggravating factor three, contrary to State v.
Baylass, 114 N.J. 169, 179 (1980). Defendant also contends the court
improperly considered defendant's violations of probation as an aggravating
factor, again contrary to Baylass.
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We disagree with defendant on both counts. His arguments on appeal
ignore well-recognized differences between special probation and regular
probation. In State v. Bishop, after reviewing the legislative history of
N.J.S.A. 2C:35-14 and case law explaining the sentencing procedures for
regular probation, we determined the Legislature "inten[ded] to provide a
separate [violation of probation] resentencing regime for special probation
than that which had previously existed and continues to exist for regular
probation." 429 N.J. Super. 533, 547 (App. Div. 2013). We concluded the
analytical framework from Baylass "does not apply to prison-bound offenders
sentenced to special probation." Id. at 548. The statute authorizing
resentencing after revocation of special probation makes clear that while a
judge is only permitted to "impose any sentence that might have been
imposed" originally, the court must "conduct a de novo review of any
aggravating and mitigating factors present at the time of both original
sentencing and resentencing." N.J.S.A. 2C:35-14(f)(4) (emphasis added).
Accordingly, it was entirely appropriate for the sentencing judge to consider
defendant's failure to take advantage of Drug Court to address his addiction.
We conclude by noting that the court expressed sadness in revoking
defendant's participation in Drug Court. We concur in that sentiment. Drug
Court is an extraordinary rehabilitative opportunity for defendants who
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26
otherwise face a presumption of imprisonment. Hawkins, __ N.J. Super. __
(slip op. at 12). It is unfortunate that defendant failed to take advantage of that
opportunity.
In sum, the sentencing judge conducted a comprehensive review of all
relevant aggravating and mitigating circumstances and acted well within his
discretion in imposing the sentence recommended in the plea agreement.
Although defendant received the maximum prison term authorized by that
agreement and by law, his sentence is reasonable and does not shock the
judicial conscience. Roth, 95 N.J. at 364–65.
To the extent we have not already addressed them, any other arguments
raised by defendant lack sufficient merit to warrant discussion in this written
opinion. Rule 2:11-3(e)(2).
Affirmed.
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