Opinion
DOCKET NO. A-5948-13T2
04-01-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WILLIAM T. DOLAN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer L. Gottschalk, Designated Counsel, on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 07-10-0765 and 08-10-0797. Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer L. Gottschalk, Designated Counsel, on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
This appeal solely involves sentencing issues. Defendant William T. Dolan contends that the trial court erred when it sentenced him to a discretionary extended term of imprisonment of seven years with a three-and-one-half year parole ineligibility period after he violated his Drug Court probation. We disagree and affirm the sentence imposed.
I.
Somerset County Indictment No. 07-10-0765 (the "first indictment") charged defendant with third-degree fraudulent use of a credit card, N.J.S.A. 2C:21-6h. Defendant pled guilty to the charge on February 15, 2008. In return, the State agreed to recommend a term of non-custodial probation, conditioned on defendant performing community service and paying restitution. When defendant entered the plea, he was specifically advised, and stated he understood, that if he violated probation he was "looking at up to five years in State Prison, two-and-a-half [years] without parole."
Defendant was sentenced in accordance with the plea agreement to three years' probation on May 2, 2008. The sentencing judge noted that it represented defendant's fifth indictable conviction, and reiterated that defendant faced five years in state prison, half to be served without parole, should he violate his probation. Defendant was also ordered to perform fifty hours of community service, pay $500 in restitution, and undergo a drug evaluation and obtain treatment if necessary.
On October 29, 2008, defendant was charged in Somerset County Indictment No. 08-10-0797 (the "second indictment") with two counts of third-degree burglary, N.J.S.A. 2C:18-2; eight counts of third-degree attempted burglary, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2; one count of fourth-degree resisting arrest, N.J.S.A. 2C:29-2a; and three counts of third-degree theft, N.J.S.A. 2C:20-3. In November, defendant applied for admission to the Drug Court Program.
On January 30, 2009, defendant pled guilty to violating his probation on the first indictment. At the plea hearing, defendant was advised that, if he was not admitted to Drug Court, the State was recommending a three-year term of imprisonment, to run concurrent to an extended seven-year term with a three-and-one-half year parole disqualifier that the State was seeking on the second indictment. Defendant was not immediately sentenced on the violation of probation (VOP).
Defendant's Drug Court application was initially denied. Following a series of appeals, our Supreme Court remanded the matter to the trial court "for the Drug Court judge to consider the substance abuse evaluator's report." State v. Dolan, 203 N.J. 166, 183 (2010).
On August 9, 2011, defendant pled guilty to all fourteen counts of the second indictment. It was indicated on the plea form, and stated at the plea hearing, that the State recommended an extended-term sentence of seven years with a three-and-one- half year parole disqualifier in exchange for defendant's plea. On October 3, 2011, over the State's objection, the trial court sentenced defendant on the second indictment and the VOP to concurrent five-year terms of probation in the Drug Court Program.
On November 12, 2013, defendant pled guilty to violating his Drug Court probation. At the VOP hearing, defendant admitted that he pled guilty to a new drug charge in October, and that he failed to report his whereabouts to the probation department.
The parties appeared for sentencing on the Drug Court VOP on April 15, 2014. The State renewed its request that defendant be sentenced to a seven-year extended term of imprisonment, with a three-and-one-half year parole disqualifier. Defense counsel objected on the basis that the State had failed to move for an extended term within fourteen days of the entry of defendant's guilty plea, as required by Rule 3:21-4(e). The court adjourned the sentencing and, the same day, the State filed a motion, pursuant to N.J.S.A. 2C:44-3a, to sentence defendant as a persistent offender to an extended term of imprisonment.
On May 20, 2014, the court granted the State's motion and sentenced defendant to a discretionary extended term of seven years with a three-and-one-half year parole ineligibility period. The court specifically noted that defendant did not challenge the prior convictions relied on by the State to establish his status as a persistent offender under N.J.S.A. 2C:44-3a. The court also reviewed defendant's extensive criminal history, including thirty adult arrests and nine juvenile arrests, ten indictable convictions, nine pending cases, and several violations of probation and parole.
In sentencing defendant, the court found significant the following aggravating factors: (1) the risk of re-offense (factor three), N.J.S.A. 2C:44-1(a)(3), (2) the extent of defendant's prior criminal record and the severity of those offenses (factor six), N.J.S.A. 2C:44-1(a)(6), and (3) the need for deterrence (factor nine), N.J.S.A. 2C:44-1(a)(9). The court found mitigating factor four, N.J.S.A. 2C:44-1(b)(4), that there were substantial grounds to justify defendant's conduct, i.e., his drug addiction. On balance, the court concluded that the aggravating factors outweighed the mitigating factors.
The sentencing court rejected defendant's argument that the State's failure to move for an extended term in a timely manner precluded imposition of an extended term. The court found that defendant did "not deny knowing and understanding" from the outset "that he was exposed to an extended-term sentence as a persistent offender and that the State would recommend a sentence of seven years, with three-and-one-half years to be served without parole eligibility." The court concluded that defendant was neither surprised nor prejudiced by such extended -term sentence.
Defendant appealed his sentence. He argued, among other things, that the State failed to comply with the notice requirement of Rule 3:21-4(e). We affirmed defendant's sentence on an Excessive Sentencing Oral Argument (ESOA) calendar. State v. Dolan, No. A-5948-13 (App. Div. June 1, 2015). Thereafter, defendant filed a petition for certification with the Supreme Court. On November 9, 2015, the Court granted certification and remanded the matter to this court for reconsideration in light of State v. Bishop, 223 N.J. 290 (2015). State v. Dolan, 223 N.J. 403 (2015).
On remand, defendant presents the following argument for our consideration:
DEFENDANT'S ORIGINAL SENTENCE TO DRUG COURT PROBATION IN 2011 WAS NOT "SPECIAL PROBATION" AS CURRENTLY DEFINED, AND THEREFORE THE HOLDING IN STATE V. BISHOP, [223 N.J. 290] (2015) DOES NOT REQUIRE IMPOSITION OF AN EXTENDED TERM AND PERIOD OF PAROLE INELIGIBILITY FOR HIS DRUG COURT PROBATION VIOLATION; THE IMPOSITION OF THE EXTENDED TERM WITH PAROLE DISQUALIFIER WAS AN ABUSE OF JUDICIAL DISCRETION.
II.
We begin our analysis by distinguishing between regular probation and special probation. Regular probation has long been an authorized disposition under the New Jersey Code of Criminal Justice (Code), N.J.S.A. 2C:1-1 to -104-9. See N.J.S.A. 2C:43-2(b)(2). Regular probation is a non-state prison sentence, although it can be conditioned upon serving not more than 364 days in a county jail. Ibid.
In general terms, a regular probationary sentence is typically imposed for third or fourth-degree offenses which do not contain a specific provision requiring a state prison sentence. For such offenders with no prior criminal record, there is a presumption against state prison, and for such offenders with a prior record, there is no presumption either for or against state prison. N.J.S.A. 2C:44-1(e); State v. Meyer, 192 N.J. 421, 433 n.5 (2007). Where there is no presumption either for or against state prison, the court must weigh aggravating and mitigating factors enumerated in N.J.S.A. 2C:44-1a and b in making the "in-out" decision, that is, whether to impose a state prison sentence or a probationary sentence. State v. Clarke, 203 N.J. 166, 176 (2010); Meyer, supra, 192 N.J. at 433 n.5.
For crimes of the first or second degree, there is a presumption of imprisonment, N.J.S.A. 2C:44-1d, which is rarely overcome. State v. Soricelli, 156 N.J. 525, 532-34 (1999). Thus, for such offenders, a regular probationary sentence is almost never appropriate under the Code's general sentencing provisions.
Special probation is another authorized disposition under the Code. It is not contained in N.J.S.A. 2C:43-2b(2), but in N.J.S.A. 2C:35-14. The term "special probation" first appeared in that section when it was amended in 1999. Meyer, supra, 192 N.J. at 434. . . . [T]hat amendment, together with subsequent amendments, set special probation apart from regular probation, rendering each a separate and distinct sentencing disposition authorized by the Code.
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." Id. at 434-35. Thus, the Legislature created special probation as a disposition aimed specifically at prison-bound offenders, who would not be eligible for regular probation.
[State v. Bishop, 429 N.J. Super. 533, 539-40 (App. Div. 2013), aff'd o.b., Bishop, supra, 223 N.J. 290.]
The term "Drug Court" does not appear anywhere in the plain text of N.J.S.A. 2C:35-14. However, as the Supreme Court has explained, "that statute and Drug Courts serve complementary purposes[.]" Meyer, supra, 192 N.J. at 424. Admission into Drug Court is authorized for "first track" applicants who meet the requirements for special probation, N.J.S.A. 2C:35-14, not relevant in this case, or for "second track" applicants, such as defendant, who are eligible for probation under the general sentencing provisions of the Code. Clarke, supra, 203 N.J. at 174-76; Meyer, supra, 192 N.J. at 434-35.
The distinction between "first track" and "second track" applicants is significant because, "in light of the vastly different criteria governing admission to these separate forms of probation, the consequences of resentencing upon revocation of probation [] also differ." Bishop, supra, 429 N.J. Super. at 541. We concluded in Bishop that the Legislature intended "to provide a separate VOP resentencing regime for special probation than that which had previously existed and continues to exist for regular probation." Id. at 547. Importantly, when the court revokes regular probation, "it may impose on the defendant any sentence that might have been imposed originally for the offense of which he was convicted." N.J.S.A. 2C:45-3b.
In the present case, defendant was admitted to Drug Court under the "second track" of the program. Accordingly, upon violating his probation, he was subject to any sentence that the court could have originally imposed. N.J.S.A. 2C:45-3b. Based on his prior criminal history, defendant unquestionably qualified as a "persistent offender," and he was therefore eligible for an extended term of imprisonment pursuant to N.J.S.A. 2C:44-3a.
The persistent offender statute "grants the sentencing court discretion to impose an extended sentence when the statutory prerequisites for an extended-term sentence are present." State v. Pierce, 188 N.J. 155, 161 (2006). After determining the defendant's eligibility for an extended term, the court must next determine whether to impose an extended sentence. Then, the court must "weigh the aggravating and mitigating circumstances to determine the base term of the extended sentence." Id. at 164 (quoting State v. Dunbar, 108 N.J. 80, 89 (1987)). The range of available sentences "starts at the minimum of the ordinary-term range and ends at the maximum of the extended-term range." Id. at 169.
The decision to sentence a defendant within this range lies within "the sound judgment of the court--subject to reasonableness and the existence of credible evidence in the record to support the court's finding of aggravating and mitigating factors." Ibid. Finally, the court "must determine whether to impose a period of parole ineligibility." Id. at 164.
Our standard of review is one of deference. Even if we would have reached a different result, we must affirm a sentence "as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989). Here, the sentencing court applied correct legal principles and its findings regarding aggravating and mitigating factors are supported by the record. See State v. Megargel, 143 N.J. 484, 493 (1996). We independently conclude that the aggravating factors substantially outweigh the mitigating factors, especially in light of defendant's long criminal history. We find no clear error of judgment in the court's application of the facts to the law that would shock our conscience. See ibid. Accordingly, we find no abuse of discretion in the imposition of an extended term or the particular sentence imposed here, including the period of parole ineligibility. See Pierce, supra, 188 N.J. at 166 n.4; see also State v. Hudson, 209 N.J. 513, 526 (2012).
Defendant again argues, as he did before the ESOA panel, that the extended term sentence must also be vacated because the State did not timely serve written notice of its intention to seek it, as required by Rule 3:21-4(e). Initially, we note that this argument appears to fall outside the scope of the remand, which is specifically limited to reconsideration under Bishop. In any event, we conclude the argument lacks merit.
Rule 3:21-4(e) provides that a motion for an extended term of imprisonment pursuant to N.J.S.A. 2C:44-3 shall be filed by the prosecutor within fourteen days of the entry of defendant's guilty plea or the return of the verdict. The Rule further provides that:
Where the defendant is pleading guilty pursuant to a negotiated disposition, the prosecutor shall make the motion at or prior to the plea. If the negotiated disposition includes the recommendation of an extended term, the prosecutor's oral notice and the recordation of the extended term exposure in the plea form completed by defendant and reviewed on the record shall serve as the State's motion. For good cause shown the court may extend the time for filing the motion.
[R. 3:21-4(e)].
Here, the State announced its intention to seek an extended term and a period of parole ineligibility both before and at the time defendant entered his plea. The State's recommendation was also contained in the plea form. The trial court chose not to accept the State's recommendation. Instead, when the plea was entered, the court stated its intention to admit defendant into Drug Court over the State's objection. It is clear from the record that the State's motion for an extended term would have been unavailing had it been filed within fourteen days of the plea's entry. Therefore, even if the State's motion was untimely when it was later filed on April 15, 2014, we find good cause existed to extend the time for its filing. Also, as the trial court correctly noted, defendant was neither surprised nor prejudiced by the late filing.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION