STATE OF NEW JERSEY v. WALEK P. DUNLAP

Annotate this Case

(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE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.

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
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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.

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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.

A-4526-17T1
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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.

A-4526-17T1
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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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22
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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23
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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24
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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25
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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