STATE OF NEW JERSEY v. WILLIAM THOMAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0306-11T1

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

WILLIAM THOMAS,

Defendant-Respondent.

_________________________________

December 10, 2012

Submitted November 7, 2012 - Decided

Before Judges Harris and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-05-1099.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief).

James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Richard E. McKelvey,Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant William Thomas after pleading guilty to several violations of probation appeals his June 3, 2011 sentence of three years imprisonment. Thomas had previously entered a plea of guilty to a charge of possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), and was afforded a five-year probationary sentence on October 8, 2010. Thomas's single claim on appeal is the following:

POINT I: THE COURT ERRED WHEN IT IMPOSED A STATE PRISON TERM UPON DEFENDANT'S VIOLATION OF PROBATION MERELY TO GIVE "SIGNIFICANCE OR CREDIBILITY" TO THE PROSECUTOR'S "PLEA INITIATIVE PROGRAM."

We disagree and affirm.

I.

At Thomas's initial plea allocution hearing, in August 2010, the prosecutor indicated the following:

This is what's known as a factor ten plea.[1] Basically what that means is should this defendant violate his probation for anything or miss [an] appointment, dirty urine, failure to notify a change of address, any of those, the State [will] be moving to sentence him to state prison. [The sentencing judge] in all likelihood would sentence him to state prison because factor ten will go away, factor ten being the only reason in this case that he is amenable to probation.

Although the court at that time did not expressly echo the prosecutor's statement, it asked defense counsel if he wanted to respond, and defense counsel stated, "No Judge. He's correct."

At sentencing on October 8, 2010, a different judge found the existence of aggravating factors three, six, and nine.2 He also applied mitigating factor ten. As a result, Thomas was sentenced to a five-year probationary term, with several conditions. The judge pointed out that if Thomas "do[es] well, [probation] can be terminated sooner." However, Thomas was also urged "to take advantage of [probation] because the aggravating factors here, three, six and nine, could very well put you into that jail we had a talk about a few moments ago. So take an opportunity to do something and make some changes."3

Thomas did not comply with the conditions of probation. In short order, he neglected to report to probation on October 27, 2010, failed to make child support payments, and tested positive for a controlled dangerous substance on March 31, 2011.

At the June 3, 2011 violation of probation hearing, defense counsel anticipated "that the State is probably going to be asking for [a] state prison [sentence]." To counter the State's position, defense counsel urged the court to "impose a 364 and terminate without improvement," hoping that the court would end probation and sentence Thomas to less than one year in the Atlantic County jail. When Thomas addressed the court, he said, "I would love for the Court to sentence me to a 364. I do not want to go to state prison. I can I understand that I made I made the mistake and I beg the Court to give me a 364, please." In response, the prosecutor stated, "because this was a factor ten initiative plea entered into between the defendant and the Prosecutor's Office, we must ask for state prison at this time."

The sentencing court reviewed the initial sentencing analysis, which noted "that the defendant is suitable for probation only if he's in treatment and recovery and noting that the aggravating factors substantially outweighed the single mitigating factor at that time." The court then commented upon the so-called "plea initiative program in Atlantic County":

But as noted in the sentencing statement on the form of the Judgment of Conviction, Mr. Thomas was placed on probation for a period of five years, consistent with the plea initiative program in Atlantic County where certain cases which would not, based on a defendant's prior record of convictions, warrant probation would be placed on probation anyway and that factor ten would be stipulated to apply by the parties on a hopeful assumption that this time would be the charm and that probation might actually work.

Obviously in the circumstances that are presented here, that hope has turned out to be illusory and the defendant has violated substantial terms and conditions of his probation, including failure to make his child support payments and testing positive for cocaine.

And obviously I need to rebalance the aggravating and mitigating factors. I take ten out of the equation as I indicated. I think in order for the plea initiative program to have any significance or credibility in the circumstances, it's important that the understandings reached at the time of the sentence be followed through on in terms of what would happen in the event of a violation of probation. But I will sentence Mr. Thomas to the minimum term of three years in state prison.

This appeal followed.4

II.

Defendant argues that the sentencing court "robotically follow[ed] the State's demand that a state prison term be imposed," which "not only served to grant the power of sentencing to the prosecutor, in violation of the separation of powers doctrine, but it also was an abdication of the court's obligation to exercise its sentencing discretion." Under the objective lens of the totality of circumstances we are unable to agree with this exaggerated view of the proceedings.

One of the primary goals of the Code of Criminal Justice, N.J.S.A. 2C:1-1 to 2C:104-9, is to improve the consistency of sentences. State v. Kromphold, 162 N.J. 345, 352 (2000). To advance that goal, the Code contains a framework for "structured discretion" in crafting a sentence. State v. Roth, 95 N.J. 334, 345 (1984).

A plea bargain does not relieve a sentencing court of its obligation to sentence in accordance with the Code's guidelines, and the court's assessment of the existence and relative weight of the aggravating and mitigating factors must be supported by competent, credible evidence in the record. State v. Warren, 115 N.J. 433, 447-49 (1989). Moreover, "[o]ur jurisprudence makes clear that the State cannot insist on a term in a plea agreement that would vitiate the court's ability to exercise discretion in sentencing." State v. Hess, 207 N.J. 123, 151 (2011).

Our review of the record satisfies us that the sentencing court followed all appropriate sentencing protocols when it imposed the three-year prison term upon Thomas. The court reviewed the initial judgment of conviction and the reasons given for the sentence at that time. It further analyzed the nature of Thomas's incomplete adjustment to probation. Finally, it rebalanced the aggravating and mitigating factors after concluding that Thomas's behavior bespoke a lack of amenability to continued probationary treatment.

We do not view the court's gratuitous commentary "I think in order for the plea initiative program to have any significance or credibility in the circumstances, it's important that the understandings reached at the time of the sentence be followed through on in terms of what would happen in the event of a violation of probation" as dispositive of the sentencing calculus. These comments neither confirm a mechanical approach to sentencing nor suggest that the prosecutor had arrogated the sentencing decision to itself. Rather, the court was merely re-expressing the incentives offered initially to Thomas, and the risks attendant to his failure to comply with the conditions of probation. We do not view these comments as evidencing a preordained prison sentence when Thomas faltered.

We are satisfied that the sentencing court acted well within its discretion in identifying and weighing the aggravating and mitigating factors supported by the evidence, and imposed a sentence within the permissible range for the offense. State v. Bieniek, 200 N.J. 601, 608 (2010). As the court applied correct legal principles, and the sentence is amply supported by the record and does not shock our judicial conscience, we discern no basis to disturb it. See Roth, supra, 95 N.J. at 363-64.

Affirmed.

1 "Factor ten" refers to the mitigating factor found in N.J.S.A. 2C:44-1(b)(10): "The defendant is particularly likely to respond affirmatively to probationary treatment."

2 See N.J.S.A. 2C:44-1(a)(3); -1(a)(6); -1(a)(9).

3 The judge had previously spoken to Thomas directly about Thomas's addiction, telling him the following: "And as I said to another person here today, . . . you end up in one of three places if you're out there in active addiction: a jail, an institution, a graveyard."

4 Thomas initially prosecuted the appeal pursuant to Rule 2:9-11. After oral argument, we removed the case to the plenary calendar and required briefing. See State v. Jones, 347 N.J. Super. 150, 152 (App. Div.), certif. denied, 172 N.J. 181 (2002).