On appeal from the Superior Court of New Jersey, Law Division, Camden County.
King, Gaulkin and D'Annunzio. The opinion of the court was delivered by King, P.J.A.D.
Defendant claims that she received an excessive sentence for a violation of probation. Her original sentence was a five-year probation term. The judge imposed a five-year prison term with a two-and-one-half year parole disqualifier for violation of her probation. We conclude that the imposition of the parole disqualifier was unjustified and vacate it. On the day after argument we issued such an order because we were told that defendant was eligible for parole at that time.
This is the factual background. On September 7, 1984 Daniel Blackwell broke into a drive-in booth at the Heritage Bank in Camden. The defendant, Lena Wilson, a former bank employee, helped him steal $17,874.16 from the booth. She was indicted for burglary, N.J.S.A. 2C:18-2, and theft, N.J.S.A. 2C:20-3. On June 26, 1985 she pled guilty and on September 6, 1985 received a five-year probationary term, purportedly to be served concurrently with a probationary term which she was serving for an earlier bad check offense. Restitution to the bank was ordered.
There is some confusion in the record about the defendant's two sentences. The presentence report seems to confirm defendant's version. She had been arrested on April 19, 1984 on the bad check charge. For that, she was sentenced on May 31, 1985 to a three-year probation term. The crime of stealing from the drive-in cage of Heritage Bank, the subject of this appeal, was committed on September 7, 1984, before defendant was sentenced on the bad check charge. Thus the State and the judge were incorrect when they concluded that defendant had committed the bank theft while on probation for a previous
crime. Rather, she was awaiting disposition of that charge at that time.
When he sentenced defendant on the bank-theft charge, the judge told her "quite frankly you should be going to jail." He also told her "I want to remind you at this time, if you violate the terms or conditions of your probation, you may at that time be brought back and sent to the New Jersey State Prison for five years, fined $7,500 or both, and I could order that you spend one-half of the five years before you would be eligible for parole."
On December 12, 1986 defendant appeared before the judge on the violation of probation charge. Specifically she was charged with: (1) failure to report since December 16, 1985, (2) a urine sample positive for cocaine, and (3) failure to keep three drug evaluation appointments at Turning Point in October 1986. She pled guilty to the violation charge and the judge revoked her probation and, as noted, sentenced her to a five-year term with the two-and-one-half-year parole disqualifier. He said that she "was in fact, on probation, September Twenty-Fourth, Eighty-Four, [on the bad check charge, he thought] when she committed the present offense and it was obvious to me that probation would have no punitive effect, it would have no rehabilitative effect, and I was not wrong."
In balancing the aggravating and mitigating factors, the judge also said "there are no mitigating circumstances applying to this defendant. In fact, there is not a redeeming quality that the court can find as it relates to this defendant, other that she is, in fact, a human being. The fact that she is a mother is a disgrace in the opinion of this court."
We removed the case from our summary sentencing appeal calendar and ordered briefing and argument on these issues:
The scope of sentencing for a violation of probation; the use of a parole disqualifier in sentencing for violation or probation; and whether and the extent to which the fact that defendant has violated probation may be ...