STATE OF NEW JERSEY v. JOHN R. MASON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-00396-12T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN R. MASON,

Defendant-Appellant.

________________________________

March 21, 2014

Submitted March 12, 2014 Decided

Before Judges Fasciale and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 07-02-164.1

Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z. Abbasi, Designated Counsel, on the brief).

Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Defendant returns to us appealing from the re-imposition of two concurrent five-year prison terms with one year of parole ineligibility. The judge re-imposed these sentences due to defendant's multiple violations of his special drug court probation (VOPs). We affirm.

In February 2007, defendant pled guilty to two separate offenses of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1). As part of that plea agreement, the State recommended to the judge that defendant participate in the drug court program.2 Defendant applied for admission into the program and, in April 2007, the court sentenced defendant to drug court in accordance with the plea agreement.

Defendant violated probation on at least three occasions. In April 2009, at defendant's second VOP hearing, defense counsel proposed to the judge that defendant plead guilty to the VOPs in exchange for remaining in the drug court program and "be[ing] subject to having his alternate increased from a flat sentence of three years to a five-year sentence with a one-year period of parole ineligibility." The judge responded by stating that

in exchange for a guilty plea to this [VOP], the recommendation is that [defendant] remain in the [d]rug [c]ourt [p]rogram under strict probation . . . . And that if he were ultimately unsuccessful in the [d]rug [c]ourt and terminated from the . . . [p]rogram, [then] his prior recommended alternate sentence would be increased from a three-year . . . prison term to a five-year . . . prison term, subject to a one-year period of parole ineligibility.

Defendant agreed to these terms and then pled guilty to the VOPs. Thereafter, defendant continued to violate the terms of his special probation. As a consequence of the additional VOPs, the judge terminated defendant from the drug court program and sentenced him two concurrent prison terms of five years with one year of parole ineligibility.

Defendant appealed and the parties appeared before us on our excessive sentencing oral argument (ESOA) calendar. We agreed with defendant's contention that the judge violated State v. Baylass, 114 N.J. 169 (1989) and remanded for re-sentencing. The sentencing judge then wrote us indicating that she inadvertently listed aggravating factor number six on the judgment of conviction. We issued an amended order but still remanded for re-sentencing. In May 2012, the judge re-imposed the same sentence.

On appeal, defendant argues that:

THE TRIAL COURT ERRED WHEN [IT] RESENTENC[ED] [DEFENDANT] TO FIVE YEARS IN NEW JERSEY STATE PRISON WHEN THE SENTENCE IMPOSED ON THE [VOP] WAS ABOVE THE MIDPOINT RANGE FOR A THIRD-DEGREE CRIME AND WAS IN EXCESS OF THE ORIGINAL ALTERNATIVE SENTENCE TO WHICH [DEFENDANT] ORIGINALLY AGREED TO AT THE PLEA.

After carefully considering the record and the briefs, we conclude that defendant's arguments are "without sufficient merit to warrant discussion in a written opinion," R. 2:11-3(e)(2), and we affirm substantially for the reasons expressed by the judge in her oral opinion dated May 9, 2012. We add the following comments.

The Legislature addressed the sentencing authority for re-sentencing a defendant upon permanent revocation of special probation in N.J.S.A. 2C:35-14f, which provides in pertinent part that

(1) Upon a first violation of any term or condition of the special probation authorized by this section or of any requirements of the course of treatment, the court in its discretion may permanently revoke the person's special probation.

(2) Upon a second or subsequent violation of any term or condition of the special probation authorized by this section or of any requirements of the course of treatment, the court shall, subject only to the provisions of subsection g. of this section, permanently revoke the person's special probation unless the court finds on the record that there is a substantial likelihood that the person will successfully complete the treatment program if permitted to continue on special probation, and the court is clearly convinced, considering the nature and seriousness of the violations, that no danger to the community will result from permitting the person to continue on special probation pursuant to this section. The court's determination to permit the person to continue on special probation following a second or subsequent violation pursuant to this paragraph may be appealed by the prosecution.

(3) In making its determination whether to revoke special probation, and whether to overcome the presumption of revocation established in paragraph (2) of this subsection, the court shall consider the nature and seriousness of the present infraction and any past infractions in relation to the person's overall progress in the course of treatment, and shall also consider the recommendations of the treatment provider. The court shall give added weight to the treatment provider's recommendation that the person's special probation be permanently revoked, or to the treatment provider's opinion that the person is not amenable to treatment or is not likely to complete the treatment program successfully.

(4) If 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 convicted3 or adjudicated delinquent. The court shall conduct a de novo review of any aggravating and mitigating factors present at the time of both original sentencing and resentencing.

[(Emphasis added).]

See also State v. Bishop, 429 N.J. Super. 533, 545-52 (App. Div.) (analyzing the VOP sentencing regime for special probation), certif. granted, 216 N.J. 14 (2013).

In re-sentencing defendant on remand, the judge conducted the appropriate analysis under N.J.S.A. 2C:35-14f and Bayless. She stated in part that

I am still going to sentence to the five do one. And I will tell you why, because I find the aggravating factors do remain the same. They are three and nine. I am still removing mitigating factor number ten. The defendant is no longer amenable to probation. I am not in any way adding to the aggravating factors[.]

The judge acknowledged the parties' attempt to reach an alternative "sentence"4 that defendant negotiated in the event that he violated his special probation, but she stated, in accordance with N.J.S.A. 2C:35-14f(4), that she is not re-sentencing defendant "exclusively for that reason." At any rate, the judge acknowledged the unique nature of special probation and expressed independent reasons for the re-imposition of the sentence by stating in part that

I think [the five-year prison term with one year of parole ineligibility] is appropriate . . . .

And when one person has a first VOP they're not kicked out of the program because we all believe so strongly in the program. But again, they're given as an incentive because we want you to complete the program. Without a doubt, so we imposed perhaps a larger hammer after you have violated and that is what has happened in this instance.

The judge therefore recognized that "the carrot-and-stick approach is integral to the Drug Court concept," Bishop, supra, 429 N.J. Super. at 548, and carefully considered the pertinent factors under N.J.S.A. 2C:35-14f. Here, we see no error with the way the judge exercised her sentencing authority.

1 Defendant's notice of appeal incorrectly uses Indictment number 04-02-164, but the record indicates that defendant was sentenced under Indictment number 07-02-164 and Accusation number 07-02-181.

2 The initial plea papers referenced an alternate "sentence" of three years in State prison. In general, the drug court manual provides that prison-bound defendants, who would otherwise be sentenced to prison but for participation in the drug court program, must meet "all other eligibility criteria" for admission into the drug court program. See N.J.S.A. 2C:35-14a. In this context, the drug court manual contemplates that parties include in plea agreements an alternate "offer" in the event that a defendant's drug court application is denied. See Administrative Office of the Courts, Manual for Operation of Adult Drug Courts in New Jersey, Directive #2-02, at 9 (July 22, 2002), available at http://www.judiciary.state.nj.us/directive/dctman.pdf (Manual).

3 In the context of regular probation, N.J.S.A. 2C:45-3b similarly provides that "[w]hen the court revokes a suspension or probation, it may impose on the defendant any sentence that might have been imposed originally for the offense of which he was convicted."

4 The drug court manual states in part that

[t]he plea agreement [in State prison-bound] cases must clearly indicate that the defendant has been given an alternative offer and must set forth the state prison sentence that was being offered as the alternative to the drug court program, e.g., Drug Court participation or three years in New Jersey State Prison.

[Manual, supra, at 9 (emphasis added).]

As we stated in Bishop, supra, 429 N.J. Super. at 550-51, the drug court manual is an authoritative source for the operation of the drug court program, but it cannot "create a sentencing disposition not authorized by the Legislature in the Code."