STATE OF NEW JERSEY v. COREY D. HILL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

COREY D. HILL, a/k/a

HILL COREY,

Defendant-Appellant.

_______________________________________________________________

June 26, 2014

Submitted November 14, 2013 Decided

Before Judges Lihotz and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 03-11-1506 and 04-08-1196.

Joseph E. Krakora, Public Defender, attorney for appellant (Alicia Hubbard, Assistant Deputy Public Defender, of counsel and on the briefs).

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Corey Hill appeals from the Law Division judgment of convictions dated June 6, 2011, terminating probation and imposing concurrent custodial sentences following his guilty pleas for violations of probation (VOP). We affirm.

On January 31, 2005, the court sentenced defendant to a five-year probationary term following a conviction under Indictment No. 03-11-1506 (1506), for one count of possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10. On May 23, 2005, defendant received another five-year probationary sentence under Indictment 04-08-1196 (1196), for another conviction for possession of CDS, N.J.S.A. 2C:35-10, to run concurrent with 1506.

Defendant pled guilty to violations of probation (VOP) on July 23, 2007 and August 31, 2009, each time the judge ordered his probation continue. On December 1, 2009, the cases were referred to the Comprehensive Enforcement Program (CEP) due to defendant's non-payment of court-imposed fines and fees. The CEP court extended the probationary terms for an additional year for the collection of fines.1 Due to that determination, probation would terminate on January 31, 2011 on Indictment 1506, and May 23, 2011 on Indictment 1196.

The VOP statement of charges at issue was initially filed on January 10, 2011, setting forth defendant's failure to report to his probation officer as directed on numerous occasions, and failure to satisfy his financial obligations. A summons issued on January 14, 2011 for a February 14, 2011 hearing. The VOPs were amended on April 1, 2011 to add an additional charge for failing to seek or maintain gainful employment. The May 27, 2011 summons required defendant to appear in court on June 6, 2011. As noted in the April 15, 2011 VOP Report, the outstanding balance due on all of defendant's court-imposed fines and fees was $2622 with an arrears balance of $177.

On June 6, 2011, defendant pled guilty to all charges cited in the VOP, following which the court vacated probation and sentenced defendant to two concurrent custodial terms of four years on the original charges of possession of CDS. This appeal followed.

On appeal, defendant raises the following issues:

I. THE IMPOSITION OF A PROBATIONARY TERM OF MORE THAN FIVE YEARS WAS ILLEGAL BECAUSE [DEFENDANT] SHOULD NOT HAVE BEEN ON PROBATION AT THE TIME THE VIOLATION WAS FILED AND HE SHOULD NOT HAVE BEEN FOUND TO BE IN VIOLATION OF HIS PROBATION.

II. THE SENTENCE WAS EXCESSIVE AS THE COURT FAILED TO PROPERLY WEIGH THE AGGRAVATING AND MITIGATING FACTORS IN SENTENCING [DEFENDANT] TO A FOUR-YEAR SENTENCE FOR THE VIOLATIONS OF PAROLE.

In a reply brief, defendant raises these additional claims:

I. BECAUSE [DEFENDANT] IS CURRENTLY SUBJECT TO SUPERVISION AND WILL CONTINUE TO BE UNDER SUPERVISION UNTIL 2016, THE MATTER OF HIS APPEAL IS NOT MOOT.

II. [DEFENDANT] RELIES ON THE ARGUMENTS SET FORTH IN POINT TWO OF HIS [INITIAL] BRIEF.

Defendant contends the court did not have the authority to impose a custodial sentence for the violations of probation on his 2005 offenses since his probationary terms had expired without the State commencing proceedings. Defendant further contends the one year extensions were solely for the collection of fines and could not be used to support a violation of probation that results in a custodial sentence. The prosecutor counters that the probation violation proceedings were commenced in a timely manner by way of the issuance of the "January 10 or January 14, 2011" VOPs during the one-year probationary extension period. After a careful review of the record and briefs submitted, we conclude defendant's claims lack merit.

The imposition of probationary sentence is discussed in N.J.S.A. 2C:45-2, which states the term of probation may not be less than one year nor exceed five years. When ordering a probationary sentence, the court may impose "reasonable conditions" as it "deems necessary to insure that [a defendant] will lead a law-abiding life or is likely to assist him to do so." N.J.S.A. 2C:45-1(a). A non-exhaustive list of permissible conditions of a probationary sentence is provided in N.J.S.A. 2C:45-1(b). Moreover, the statute grants the authority to impose payment of assessments and restitution, as a condition of probation. N.J.S.A. 2C:45-1(c). A court is also authorized to discharge the defendant from probation, N.J.S.A. 2C:45-2(a) and to modify or eliminate any requirement found to impose an unreasonable burden on the defendant or add further requirements, N.J.S.A. 2C:45-2(b). Finally, in specific instances, the statute gives the court the discretionary authority to extend the probationary period for up to an additional five years if the probationer has failed to pay fines or assessments which were imposed as a condition of probation. N.J.S.A. 2C:45-2(c)(1),(2).

This court examined the provision of N.J.S.A. 2C:45-2(c) in State v. De Christino, 235 N.J. Super. 291, 297-98 (App. Div. 1989), noting:

The exception was added by an amendment to subsection c. of the statute. The [c]omment to that subsection . . . [states], 'The amendment to subsection c. was intended to continue a person on probation in order to allow for the payment of a fine or restitution.' [Cannel, New Jersey Criminal Code Annotated, comment 4 on N.J.S.A. 2C:45-2(c) (2013)]. In order to effectuate this purpose, we construe the provision to mean that the period can be extended for up to an additional five years in order to allow for payment. . . However, since the stated purpose of the exception is to allow for payment of a fine or restitution, we hold that an extension under this provision may not be used to incarcerate a probationer in circumvention of the limitation of N.J.S.A. 2C:45-3(a), although probation may, of course, be revoked for a substantial violation, including willful failure to pay, occurring during the extended period. Cf. N.J.S.A. 2C:45-3(a)(4). See also N.J.S.A. 2C:46-1 and following which provide for the collection of fines and restitution.

This makes clear that the court has the authority to revoke probation during an extended probationary period upon a finding of a substantial violation occurring during that extended period.

Here, the bases for the VOPs were defendant's failure to (1) report to his probation officer; (2) satisfy the court-imposed financial obligations; and (3) seek or maintain gainful employment. The VOP statement of charges filed January 10, 2011, noted, among other things, defendant was required to report to the probation officer on a weekly basis. Defendant failed to report October 19, 2009, and then twenty-two non-consecutive weeks in 2010. The April 2011 VOP addendum reported two additional missed appointments as of that date. Also during this time, defendant failed to make payments on court imposed financial obligation.

The VOPs were filed timely as per N.J.S.A. 2C:45-2(c). The original five year probationary terms imposed at the original sentencing hearings would have expired on January 31, and May 23, 2010. The one year extensions imposed in 2009 by the CEP court lengthened the terms to the corresponding dates in 2011. The filing of the VOPs on January 10, 2011, and the issuance of the hearing summons on January 14, 2011, therefore, commenced the probation revocation proceedings during defendant's probationary term. State v. Nellom, 178 N.J. 192, 202 (2003).

During the VOP plea and sentencing hearing, the judge found defendant guilty of all of the cited violations, especially finding that the numerous failures to report to probation were substantial violations of probation. N.J.S.A. 2C:45-3(a)(4). Thereafter, the judge resentenced defendant to prison terms "that might have been imposed originally for the offenses of which he was convicted." N.J.S.A. 2C:45-3(b).

Defendant's arguments run counter to recognized and established legal principles governing violations of probation. We find no error.

Defendant has also appealed from the concurrent four-year sentences imposed upon him as the result of his convictions for possession of CDS arguing that the judge failed to consider mitigating factors N.J.S.A. 2C:44-1(b)(4)(substantial grounds tending to excuse or justify the defendant's conduct) and (10) (defendant is particularly likely to respond affirmatively to probationary treatment). We reject defendant's contention.

During sentencing, defendant implored the court to consider his effort to complete college, pay rent and remain drug free. The judge was not persuaded. The judge noted "he's been here before this [c]ourt before and the [c]ourt gave [him] every opportunity to go to school, to get a job, to move to another [c]ounty." In addition, as stated above, the judge considered the numerous failures to report a substantial violation of a condition of probation.

In State v. Bieniek, 200 N.J. 601, 608 (2010), our Supreme Court noted that the role of an appellate court is not to substitute its judgment about appropriate sentencing factors for that of the sentencing judge. When the sentencing court adheres to the "sentencing principles set forth in the Code and defined in our case law, its discretion [is] immune from second-guessing." Id. at 612.

The judge found applicable aggravating factor three, N.J.S.A. 2C:44-1(a)(3), the risk that defendant will commit another crime; aggravating factor six, N.J.S.A. 2C:44-1(a)(6), the extent of defendant's prior criminal record; and aggravating factor nine, N.J.S.A. 2C:44-1(a)(9), the need to deter defendant and others from violating the law. As for the mitigating factors, the judge found no mitigating factors applicable under N.J.S.A. 2C:44-1(b). The judge rejected application of mitigating factor four, finding defendant's explanation for his non-compliance with the terms and conditions of probation as repeated excuses. Given defendant's conviction for violations of probation, mitigating factor ten was clearly no longer applicable.

We find no abuse of discretion in the judge's findings with respect to aggravating and mitigating factors. See Bieniek, supra, 200 N.J. at 610-11. We discern no basis to disturb this sentence on appeal.

Affirm.

1 The CEP court action was reflected in the January 2011 VOP statement of charges, as well as in subsequent probation reports. Although we have not been provided a copy of the CEP order confirming the extension of probation, or a transcript of the proceeding, the fact is not disputed.