On certification to the Superior Court, Appellate Division, whose opinion is reported at 171 N.J. Super.. 427 (1979).
For reversal -- Chief Justice Wilentz, and Justices Sullivan, Pashman, Clifford, Handler and Pollock. Concurring in part and dissenting in part -- Justice Schreiber. The opinion of the Court was delivered by Clifford, J. Schreiber, J., concurring in part and dissenting in part.
Defendant was sentenced to a custodial term on his criminal convictions. He served part of that term, after which the sentence was suspended and he was placed on probation. When defendant violated the terms of his probation, the trial court sentenced him to a custodial term exceeding that originally imposed for the underlying offense. On appeal defendant challenged that sentence on double jeopardy grounds. The Appellate Division affirmed the sentence, State v. Ryan, 171 N.J. Super. 427 (1979). We granted certification, 82 N.J. 297 (1980), to review that determination as well as the Appellate Division's decisions denying sentence credit for time spent on probation and interpreting the impact of N.J.S.A. 2A:168-4 on R. 3:21-10(b) proceedings.
In January 1974 defendant, Edward Joseph Ryan, pleaded guilty to charges of larceny and breaking and entry with intent to steal. He was sentenced to concurrent terms of three to five years in New Jersey State Prison. After serving approximately six months in custody defendant moved for sentence modification under that provision of R. 3:21-10(b) permitting "entry of the defendant into a custodial or non-custodial treatment or rehabilitation program for drug or alcohol abuse * * *." The original sentencing court granted the motion effective August 1, 1974. It transferred defendant to Patrick House, a
narcotic treatment facility of Jersey City Medical Center and placed him on probation for two years.*fn1
In February 1977 Ryan was cited for violating the conditions of his probation. He pleaded guilty to absconding from probationary supervision and leaving the state without permission. It further developed at a hearing on those charges that seven detainers had been lodged against defendant; the State of New York was attempting to extradite him; he was serving thirty days on a conviction for malicious damage and larceny; and he was facing additional punishment for a contempt of court conviction.
Confronted with this supplemental information the trial court revoked both the probation and the suspension of the original three to five year sentence, and sentenced defendant to concurrent terms of five to seven years, the statutory maximum for the underlying offenses. On appeal to the Appellate Division defendant challenged that sentence as violating his double jeopardy rights on the ground that his original sentence was impermissibly increased after having been partially executed. Ryan further claimed entitlement to sentence credit for the time he had spent in the program prior to reincarceration. In addition, he contested the trial court's power to invoke the provision of N.J.S.A. 2A:168-4 allowing imposition of a custodial term after revocation of probation, claiming that the statute is inapplicable in the context of R. 3:21-10(b) sentence modifications.
In rejecting these contentions the Appellate Division relied on the language of N.J.S.A. 2A:168-4 authorizing "the imposition of any sentence that could have been imposed for the underlying crime after probation violation has occurred." 171 N.J. Super. at 434. Hence the court below approved the sentence of five to seven years after probation violation, even though the original sentence had aggregated three to five years and had been partially served. For its conclusion it relied heavily on State v. Cunningham, 143 N.J. Super. 415 (App.Div.1976), which in similar circumstances upheld the imposition of a higher sentence after violation of probation. 171 N.J. Super. at 432.
In disposing of defendant's contention that he was entitled to sentence credit for time spent on probation, the Appellate Division stressed the substantive differences between a probationer's condition of relative freedom of movement and a custodial prisoner's confinement. It concluded that the statutory scheme and prevailing case law recognize those differences in declining to equate probation and prison time. Id. at 441-43. See State v. Smeen, 147 N.J. Super. 229, 233-34 (App.Div.), certif. den., 74 N.J. 263 (1977). See also Hall v. Bostic, 529 F.2d 990, 991 (4th Cir. 1975), cert. den., 425 U.S. 594, 96 S. Ct. 1733, 48 L. Ed. 2d 199 (1976) ("There is nothing unusual in the denial * * * of credit for probation or parole time against a prison sentence. It is common to both state and federal probation and parole systems. The validity of such denial has been universally recognized both in federal and state decisions" (footnote omitted).). However, in denying sentence credit for probation time, the court below did so without prejudice to defendant's right to move in the trial court for credit limited to the time he had spent at Patrick House, inasmuch as the record was uninformative as to "the extent to which defendant's liberty had been restrained during the two months or so he had spent there." 171 N.J. Super. at 442.
Finally, the Appellate Division refused to adopt defendant's position that the provision of N.J.S.A. 2A:168-4, which empowers the trial court, after revocation of probation, to "impose any
sentence which might ordinarily have been imposed" does not apply to probationary terms meted out in connection with R. 3:21-10(b) modifications. The court held that the application of the statute to such probation terms was manifestly in keeping with the legislative mandate, N.J.S.A. 2A:168-1 and N.J.S.A. 2A:164-17, as well as the case law on the subject. See, e.g., State v. Johnson, 133 N.J. Super. 457 (App.Div.1975).
On these latter two issues, namely, the disallowance of sentence credit for time spent on probation, at least under the circumstances of this case, and the applicability of N.J.S.A. 2A:168-4 to modification of sentence proceedings under R. 3:21-10(b), we are in accord with the Appellate Division's disposition and generally adopt its reasoning.*fn2 Our opinion in State v. Williams, 81 N.J. 498 (1980), filed after the Appellate Division decision in this case was handed down, is scant support for defendant's sentence credit argument. The underpinning of the credit allowance for time spent on probation in Williams was the evident unfairness of denying credit inasmuch as uninterrupted service of defendant's sentence was rendered impossible only through the trial court's error in granting probation. 81 N.J. at 500. See also State v. Braeunig, 135 N.J. Super. 89, 94 (Law Div.1975), mod. on other grounds, 140 N.J. Super. 245 (App.Div.1976).
However, because we disagree with the Appellate Division's resolution of defendant's double jeopardy argument, we reverse the judgment below and reinstate the original three-to-five year aggregate custodial sentence.*fn3
Prior to the adoption of the Code of Criminal Justice, resort to the sentencing provision of N.J.S.A. 2A:168-4 was more frequently found in situations in which, on conviction of the underlying offense, the court had either suspended the imposition of any sentence or had imposed sentence and immediately suspended the execution thereof and had placed the defendant on probation.*fn4 When defendant thereafter violated probation, a number of options were open to the trial court under the statute: it might continue the probation or revoke both the probation and the suspension of any sentence previously imposed; following any such revocation it might require a defendant to serve the sentence originally imposed or it might impose any sentence that could have been meted out originally on conviction of the underlying offense.*fn5
The case law recognizing the applicability of N.J.S.A. 2A:168-4 in the stated circumstances is clear. See In re White, 18 N.J. 499 (1955); State v. Driesse, 95 N.J. Super. 491 (App.Div.1967); State v. Zachowski, 53 N.J. Super. 321 (App.Div.1959). Although the statements of principle justifying the imposition
of a custodial sentence after probation revocation under N.J.S.A. 2A:168-4 have not been entirely consistent, compare State v. Wall, 126 N.J. Super. 594, 596 (App.Div.1976), and State v. Pallitto, 107 N.J. Super. 96, 100 (App.Div.1969), certif. den., 55 N.J. 309 (1970), with State v. Pascal, 133 N.J.L. 528, 532-33 (Sup.Ct.1946), aff'd, 1 N.J. 261 (1949), the sentence imposed after revocation of probation should be viewed as focusing on the original offense rather than on the violation of probation as a separate offense. This is borne out by the statute's limitation on the sentence that follows a violation of probation to the sentence already imposed or one that might originally have been imposed, thereby anchoring the proceedings to the original offense. The custodial term allowed by the statute is imposed because of the defendant's ...