STATEOF NEW JERSEY v. EVERETT DOLLAR

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0622-16T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

EVERETT DOLLAR,

        Defendant-Appellant.


              Argued January 22, 2018 - Decided February 23, 2018

              Before Judges Sabatino, Ostrer and Rose.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No. 12-
              09-2216.

              Alison Perrone, Designated Counsel, argued the
              cause for appellant (Joseph E. Krakora, Public
              Defender, attorney; Andrew J. Shaw, Designated
              Counsel, on the brief).

              Kayla   Rowe,    Special   Deputy    Attorney
              General/Acting Assistant Prosecutor, argued
              the cause for respondent (Robert D. Laurino,
              Acting Essex County Prosecutor, attorney;
              Camila A. Garces, Special Deputy Attorney
              General/Acting   Assistant   Prosecutor,   of
              counsel and on the brief).

PER CURIAM
      Defendant Everett Dollar appeals from an August 22, 2016

order denying his petition for post-conviction relief ("PCR").

Defendant contends his sentence for fourth-degree contempt is

illegal because he already was otherwise punished for violating

the consent order at issue.         Having reviewed defendant's arguments

in light of the record and applicable legal principles, we reverse

and vacate defendant's conviction.

                                       I.

      We glean the facts and procedural history pertinent to this

appeal from the record.        Following the completion of a sentence

served   at   the   Adult   Diagnostic      and   Treatment    Center    for    an

unspecified sexual offense, defendant was civilly committed to the

Special Treatment Unit (“STU”), pursuant to the Sexually Violent

Predator Act (“SVPA”), 
N.J.S.A. 30:4-27.24 to -27.38.              On January

22,   2010,   Judge   Philip   H.    Freedman,    issued   a   consent     order

conditionally discharging defendant from the STU by January 27,

2010.    Among other conditions, defendant agreed to "comply with

all terms and conditions of [p]arole as if he were on community

supervision for life."         One of these conditions included GPS

monitoring.

      On April 10, 2012, defendant was incarcerated at the Essex

County Jail ("ECJ") on charges not reflected in the record, and

the GPS monitoring bracelet was removed by jail authorities.

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Defendant was released from the ECJ on May 22, 2012, but failed

to report to parole authorities to enable them to reattach the GPS

monitoring device.        On May 24, 2012, Judge Freedman entered an

order vacating defendant's conditional discharge, and ordering his

return to the STU, upon his arrest, for temporary commitment

pending a hearing.

     On September 10, 2012, defendant was charged in Indictment

No. 12-09-02216-I with fourth-degree contempt, 
N.J.S.A. 2C:29-9(b)

(count    one),     and   third-degree       failure    to   comply   with     GPS

monitoring, 
N.J.S.A. 30:4-123.89 and 
N.J.S.A. 30:4-123.94 (count

two).    Defendant was arrested for these charges in New York on

August 14, 2013, and returned to the ECJ on or about August 30,

2013.

     On February 10, 2014, defendant pled guilty to fourth-degree

contempt,    as   amended.
1 On    February    18,   2014,    defendant    was

released from the ECJ and returned to the STU.               On June 25, 2014,

Judge    Freedman    entered   an    order   continuing      defendant's     civil

commitment pursuant to the SVPA.



1
  Prior to entry of his guilty plea, the State amended count one
of Indictment No. 12-09-02216-I from 
N.J.S.A. 2C:29-9(b) to

N.J.S.A. 2C:29-9(a).   As part of the plea agreement, the State
agreed to recommend noncustodial probation at sentencing, and
dismiss count two of Indictment No. 12-09-02216-I, and Indictment
No. 12-06-1504-I that charged defendant with a single count of
third-degree failure to comply with GPS monitoring.

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     On September 19, 2014, the trial court sentenced defendant

to a probationary term of four years, and 130 hours of community

service, to commence upon his release from custody at the STU.

Defendant appealed the excessiveness of his sentence.   We rejected

his argument and affirmed the sentence on June 1, 2015.    Defendant

remains committed at the STU.

     On appeal, defendant raises the following points for our

consideration:

          POINT ONE

          THE PCR PETITION SHOULD BE GRANTED BASED UPON
          AN ILLEGAL SENTENCE.

          POINT TWO

          THE PCR     COURT ERRED IN DENYING THE PCR
          PETITION    [WITHOUT] HOLDING AN EVIDENTIARY
          HEARING.

          A. Trial Counsel Was Ineffective By Failing
          to Object To The Illegal Sentence While
          Appellate Counsel Was Ineffective By Failing
          To Raise The Issue On Appeal.

          B. Trial Counsel Was Ineffective By Coercing
          The Defendant Into Pleading Guilty.

          C. Trial Counsel Was Ineffective By Failing
          to Object To [] Defendant's Inadequate Factual
          Basis.
          (Not Raised Below)

          D. Trial and Appellate Counsels' Cumulative
          Errors.
          (Not Raised Below)



                                4                            A-0622-16T1
                                      II.

     "Post-conviction      relief    is     New   Jersey's   analogue     to   the

federal writ of habeas corpus."           State v. Preciose, 
129 N.J. 451,

459 (1992).    Pursuant to Rule 3:22-2(a), a criminal defendant is

entitled to post-conviction relief if there was a "[s]ubstantial

denial in the conviction proceedings of defendant's rights under

the Constitution of the United States or the Constitution or laws

of the State of New Jersey."         Ibid.    "A petitioner must establish

the right to such relief by a preponderance of the credible

evidence."    Ibid.     Unlike factual findings, a PCR court’s legal

conclusions    do    not   receive    any    deference.       A     PCR   court’s

interpretations of law, therefore, are reviewed de novo.                    State

v. Nash, 
212 N.J. 518, 540-41 (2013) (citing State v. Harris, 
181 N.J. 391, 415 (2004)).        Because defendant claims his sentence for

fourth-degree contempt was illegal, the PCR judge's decision is

subject to our de novo review.

     We acknowledge that a court may correct an illegal sentence

"at any time before it is completed."             State v. Schubert, 
212 N.J.
 295, 309 (2012) (quoting State v. Murray, 
162 N.J. 240, 247 (2000);

see also, R. 3:21-10(b)(5) (providing that, "an order may be

entered at any time . . . correcting a sentence not authorized by

law including the Code of Criminal Justice"). "There are two

categories    of    illegal   sentences:      (1)    those   that    exceed    the

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penalties authorized by statute for a particular offense and

(2) those that are not in accordance with the law, or stated

differently,    those   that    include     a     disposition    that    is   not

authorized by our criminal code."               Schubert, 
212 N.J. at 308

(citing Murray, 
162 N.J. at 246-47).

     Here, defendant contends the sentence imposed for contempt

by the trial court was illegal because it enhanced the punishment

he   received   pursuant   to    the       SVPA     for   the   same    conduct.

Specifically, the SVPA provides a procedure for failure to comply

with the terms of a conditional discharge order:

          A designated staff member on the person’s
          treatment team shall notify the court if the
          person fails to meet the conditions of the
          discharge plan, and the court shall issue an
          order directing that the person be taken to a
          facility designated for the custody, care and
          treatment of sexually violent predators for
          an assessment. The court shall determine, in
          conjunction   with   the   findings   of   the
          assessment, if the person needs to be returned
          to custody and, if so, the person shall be
          returned to the designated facility for the
          custody, care and treatment of sexually
          violent predators.    The court shall hold a
          hearing within 20 days of the day the person
          was returned to custody to determine if the
          order of conditional discharge should be
          vacated.

          [N.J.S.A. 30:4-27.32(c)(3).]

Because defendant violated the conditions of the civil consent

order, he was recommitted to the STU.             Nevertheless, defendant was


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also charged with, and convicted of, contempt for the same conduct.

The relevant contempt statute provides:

             A person is guilty of a crime of the fourth
             degree if he purposely or knowingly disobeys
             a judicial order or . . . hinders, obstructs
             or impedes the effectuation of a judicial
             order or the exercise of jurisdiction over any
             person, thing or controversy by a court,
             administrative body or investigative entity.

             [N.J.S.A. 2C:29-9(a).]

      We are persuaded defendant's contempt conviction constituted

an   additional    punishment,   in     light      of     the   SVPA's   prescribed

consequences.      We find persuasive defendant's reliance on State

v. Williams, 
234 N.J. Super. 84, 93 (App. Div. 1989), where we

affirmed an order vacating the defendant’s conviction for fourth-

degree contempt.       In that case, the defendant pled guilty to

several contempt charges and was sentenced to a probationary term.

Id. at 86.    As a condition of his probation, the judge ordered the

defendant to avoid all contact with the complaining witnesses

involved in the original complaint.               Ibid.

      The defendant, however, violated the court's order by making

threatening telephone calls to the individuals he was barred from

contacting.      Id. at 87.   He was subsequently indicted, and found

guilty by a jury of fourth-degree contempt.                     Id. at 87-88.     The

trial   judge,    however,    vacated       the    conviction      because    “[t]he

defendant may not be charged now with an entirely new offense of

                                        7                                    A-0622-16T1
violating the special conditions of probation when that conduct

in and of itself is not inherently violative of the law.”     Id. at

88-89.   The original judge's directive to avoid contact with the

complaining witnesses was solely a condition of probation and not

an independent judicial order.    Id. at 90.

     On appeal, we noted that prior reported decisions did not

consider violations of probationary conditions as a basis for

contempt of court. Rather, these violations give rise to probation

hearings governed by the procedure set forth in 
N.J.S.A. 2C:45-

3(a).    We thus construed conditions of probation as statutory

conditions rather than independent provisions of a judicial order.

Id. at 90-91.   Further, 
N.J.S.A. 2C:45-3(a) specifies that, after

a hearing, the consequence for a violation of a condition of

probation may be revocation of probation.      Thus, we

           dr[e]w a distinction between an order directed
           to a defendant or another to do or refrain
           from doing a particular act (the violation of
           which could be the basis of a contempt of court
           citation by a judge or indictment by a grand
           jury), and a conditional order which either
           states the ramifications of its violation or
           has such consequences established by law.

           [Id. at 91.]

     The Williams panel reasoned further that holding otherwise

would raise disorderly persons offenses for individuals serving a

term of probation to fourth-degree offenses, and even criminalize


                                 8                           A-0622-16T1
non-criminal acts.      Ibid.        It added that the Legislature intended

that the sanction for violation of a condition of probation was

revocation, and not contempt.            Id. at 93.       We thus affirmed the

trial   court's     order     vacating       the   defendant's   conviction    for

contempt.     Ibid.

     Although not cited by the parties, we have likewise recognized

this concept in a juvenile delinquency case.                 In State ex rel.

S.S., 
367 N.J. Super. 400, 403-04 (App. Div. 2004), a juvenile was

charged with contempt, pursuant to 
N.J.S.A. 2C:29-9(a), after

violating a court's order that she obey the rules of her home and

school.     She violated these rules by running away from her home.

Id. at 403.    In reversing the juvenile adjudication for contempt,

we   noted    the     "goal     of     the     juvenile   justice     system    is

rehabilitation, not punishment."                   Id. at 407.      The relevant

sections of the Code of Juvenile Justice and related legislative

history indicate that the remedy for a juvenile's actions should

not be criminal proceedings when the actions are not otherwise

criminal.     Id. at 409-10.           Applying Williams to the juvenile-

family crisis context, we concluded the appropriate remedy is to

"bring the juvenile and her parents back before the Family Part

and to reconsider the placement and conditions originally imposed,

but not to charge her with criminal contempt of court for conduct



                                          9                              A-0622-16T1
that 'itself is not otherwise criminal.'"         Id. at 413 (quoting

Williams, 
234 N.J. Super. at 91).

     Here,   defendant   admits   he   violated   the   terms   of     Judge

Freedman's January 22, 2010 civil consent order by failing to have

his GPS monitoring bracelet reattached upon release from the ECJ.

Per Judge Freedman's May 24, 2012 order, defendant's conditional

discharge was vacated.    The judge also ordered defendant's return

to the STU, and he was ultimately re-committed at the STU following

a hearing.

     We are persuaded our holding in Williams applies in the

present case.   In Williams, the consequences for a violation of a

condition of probation were set forth in 
N.J.S.A. 2C:45-3(a).

Williams, 
234 N.J. Super. at 93.       Analogously, violation of the

terms of Judge Freedman's conditional consent order was governed

by the SVPA, that is, defendant was arrested and re-committed to

the STU. 
N.J.S.A. 30:4-27.32(c)(3).        This section requires the

individual's return to the STU and a hearing held within twenty

days to determine if the conditional discharge should be vacated.

Two days after defendant violated the terms of Judge Freedman's

consent order, defendant's conditional discharge was vacated, he

was ordered to be returned to the STU for temporary commitment

pending a hearing, and he was ultimately re-committed under the

SVPA.

                                  10                                 A-0622-16T1
    The consequence of defendant's violation of the consent order

is similar to Williams, where the proper sanction was revocation

of probation.   In both cases, the punishment for violation of the

orders at issue is provided by law.         As such, an additional

contempt charge is inappropriate.

    We   are    satisfied   defendant's   conviction   for   contempt

constituted an additional penalty to that provided under the SVPA

for violation of the same order.      As such, defendant's sentence

for contempt is illegal and the PCR court erred by denying his

petition on this ground.    In light of our decision, we need not

reach defendant's remaining PCR claims.

    Reversed and vacated.




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