STATE OF NEW JERSEY v. DALE A. SCOTT, Jr.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1989-05T31989-05T3

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

DALE A. SCOTT, JR.,

Defendant-Respondent.

______________________________________

 

Argued March 14, 2007 - Decided September 5, 2007

Before Judges A. A. Rodr guez and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, 04-07-471.

Eric Mark, Assistant Prosecutor, argued the cause for appellant (Wayne J. Forrest, Somerset County Prosecutor, attorney; Mr. Mark, on the brief).

Stephen P. Hunter, Assistant Deputy Public Defender, argued the cause for respondent (Yvonne Smith Segars, Public Defender, attorney; Mr. Hunter, of counsel and on the brief).

PER CURIAM

Defendant, Dale A. Scott, Jr., entered a negotiated plea of guilty to multiple charges, i.e., three counts of third degree burglary, N.J.S.A. 2C:18-2; five counts of third degree theft, N.J.S.A. 2C:20-3; three counts of third degree forgery, N.J.S.A. 2C:21-1a(2); three counts of third degree uttering a forged instrument, N.J.S.A. 2C:21-1a(3); and one count of fourth degree theft, N.J.S.A. 2C:20-3. In exchange, the State agreed to recommend concurrent terms aggregating a ten-year period with a three-year parole disqualifier, or successful completion of "Drug Court." Judge Edward M. Coleman imposed a five-year probationary term in "Drug Court." Four months later, defendant pled guilty to a violation of probation for failing to comply with the terms of the "Drug Court" program. Over the State's objection, a different judge re-sentenced defendant to continue in "Drug Court." The State appeals from that sentence. We affirm.

These are the salient facts regarding the offense. On May 27, 2004, defendant burglarized a home and stole a checkbook. He then drafted and endorsed the check to himself and cashed it for $250. Between July 29, 2004 and August 4, 2004, defendant unlawfully obtained another person's checks, which he then drafted, endorsed and cashed. On August 20, 2004, defendant entered his cousin's home and another home and stole more than $500 from his cousin and more than $200 from the other home. On August 25, 2004, defendant entered his friend's home without permission and stole $1,119.40. On August 29, 2004, defendant stole more than $500 and uttered another check without permission.

On April 2, 1993, defendant was sentenced to a three-year term with a one-year period of parole ineligibility for fourth degree distribution of CDS, N.J.S.A. 2C:35-5a(1); and third degree distribution of CDS while within 1,000 feet of school property, N.J.S.A. 2C:35-7. On May 16, 1995, defendant was sentenced to a five-year term with a two-year and six-month period of parole ineligibility for violations of fourth degree distribution of CDS, N.J.S.A. 2C:35-5a(1); and third degree distribution of CDS while within 1,000 feet of school property, N.J.S.A. 2C:35-7.

Defendant absconded from Damon House, his in-patient treatment facility, after only one month of residence there. A warrant was issued for defendant's arrest. Defendant did not turn himself into the courts, police, probation or Damon House. He was arrested at his home about two weeks later.

The State appealed. The matter was heard at a sentencing oral argument calendar on April 5, 2006. We ordered that the matter be briefed and heard at a plenary calendar.

On appeal, the State contends:

THE DEFENDANT'S SENTENCE IS ILLEGAL AS CONTRARY TO N.J.S.A. 2C:35-14 AND MUST BE CORRECTED.

We disagree.

At the outset, we reject defendant's contention that the State has no right to appeal his re-sentence to "Drug Court." An illegal sentence can always be corrected. State v. Chambers, 377 N.J. Super. 365, 370 (2005); see State v. Eigenmann, 280 N.J. Super. 331, 339 (App. Div. 1995). N.J.S.A. 2C:35-14c provides that if the prosecutor objects to a sentence of probation in "Drug Court," such sentence should not be imposed, unless the court finds the objection to be "a gross and patent abuse of prosecutorial discretion." Ibid.

Both parties rely on the holding in State v. Matthews, 378 N.J. Super. 396 (App. Div.), certif. denied, 185 N.J. 596 (2005), which was decided after the trial court sentenced defendant for the first time, but before the trial court re-sentenced defendant. During the original sentencing in Matthews, the prosecutor objected to the defendant being sentenced to probation and placed into "Drug Court." Id. at 398. The trial court, in its belief that it was bound by N.J.S.A. 2C:35-14c, then proceeded to sentence the defendant to a custodial term, finding that the prosecutor's objection to "Drug Court" was not a "patent abuse of prosecutorial discretion," pursuant to N.J.S.A. 2C:35-14c.

On appeal, we affirmed the sentence, holding that:

[W]hen the express conditions enumerated in N.J.S.A. 2C:35-14-the specific statute--are extant, admission into special probation, i.e., a drug court program, is governed by N.J.S.A. 2C:35-14. It is only when a defendant is not precluded from a drug court program by the restrictions in N.J.S.A. 2C:35-14a and b, and the prosecutor does not have the right to object under the patent and gross abuse of discretion standard under subsection c, that admission into a drug treatment program under N.J.S.A. 2C:45-1b(3) may be appropriate.

[Matthews, supra, 378 N.J. Super. at 403.]

Because the defendant was convicted of offenses which were similar to N.J.S.A. 2C:35-5, we found that the prosecutor had the right pursuant to N.J.S.A. 2C:35-14c to object to the defendant's request to be placed into "Drug Court." Matthews, supra, 378 N.J. Super. at 404. We also concluded that the prosecutor's objection to defendant's requested sentence of probation and "Drug Court" was not "a patent and gross abuse of discretion," and therefore upheld the trial judge's sentence. Ibid. We conclude that the reasoning in Matthews is persuasive and well-reasoned. We will continue to follow Matthews unless and until the Supreme Court decides differently.

However, Matthews presents a different procedural history than this case. Here, the prosecutor consented to "Drug Court" at the original hearing, but objected after a Violation of Probation (VOP) finding. The State argues that because a VOP sentence should be based on the original crime, the State is allowed, "to raise objections that could have been raised at the original sentencing." We are not persuaded.

The State argues that State v. Ikerd, 369 N.J. Super. 610 (App. Div. 2004) stands for the proposition that because a VOP sentence should be based on the original crime, the State is therefore able to object upon re-sentencing. However, no such proposition is found in Ikerd. The State consented to a "Drug Court" sentence. It did not qualify this consent or reserve the right to object upon a re-sentencing. We conclude that in these particular circumstances the State has the right to be heard at a re-sentencing hearing, but it cannot exercise the veto power that N.J.S.A. 2C:35-14c permits at the original sentencing.

 
Affirmed.

(continued)

(continued)

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A-1989-05T3

September 5, 2007