On certification to the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, O'Hern, Pollock, Garibaldi and Stein. For affirmance -- None. The opinion of the Court was delivered by Pollock, J.
[114 NJ Page 182] In the companion case, State v. Baylass, 114 N.J. 169, decided today, we held that probation violations may be used on
the "in-out" decision whether to revoke probation and incarcerate the defendant. We held further that a probation violation is neither an aggravating factor nor evidence of such a factor. The violation, however, may be used to diminish or negate mitigating factors such as defendant's ability to lead a law-abiding life, N.J.S.A. 2C:44-1b(7); the unlikelihood as manifested through defendant's character and attitude that he will commit another offense, N.J.S.A. 2C:44-1b(9); and the likelihood that he will respond affirmatively to probation, N.J.S.A. 2C:44-1b(10). For a defendant who has committed multiple offenses, we held that a probation violation may not be used to determine whether the sentences should be concurrent or consecutive. Baylass, supra, 114 N.J. at 173. Finally, we emphasized the need for a court to identify and weigh aggravating and mitigating factors at both the original sentencing hearing and the probation violations hearing. Id. at 173. With those rules in mind, we turn to the present case.
Defendant, Rubin Molina, admitted that on July 30, 1985, he possessed at the time of his arrest "a nickel bag and dime of coke," and on December 2, 1985, he pled guilty to possession of cocaine. N.J.S.A. 24:21-20a(1) (repealed by Comprehensive Drug Reform Act of 1986, L. 1987, c. 106 (codified at N.J.S.A. 2C:35-1 to -23)). Under Title 24, such an offense is punishable by a term of imprisonment not to exceed five years. Ibid. Defendant also pled guilty to escape, a third-degree offense. N.J.S.A. 2C:29-5. Although the record before the trial court is not clear, that offense apparently arose out of defendant's unauthorized departure from municipal court while he was in custody along with some fifteen other defendants.
Pursuant to a plea agreement, defendant was sentenced on the escape charge to two years' probation, and on the cocaine possession to five years' probation with a ninety-day county jail term. In imposing the jail term, the court noted that
the defendant was involved in possession of marijuana on a previous occasion and was fined and that didn't convince him of the error of his ways, because he then became involved in possession of C.D.S. again. And, it is for that reason that it is absolutely necessary that defendant be sent to jail, because we have to try to convince him in some way the criminal justice system is serious and will not tolerate one who continually commits criminal acts.
The court also warned defendant that if he violated the terms of probation, it could resentence him to consecutive maximum terms of five years with a two-and-one-half year parole disqualifier on each count.
Defendant, however, continued his drug use and failed to attend a drug rehabilitation program. Consequently, on April 15, 1987, he appeared before the court for a probation violations hearing. At that hearing, the court found that imprisonment was necessary. Mixing the need to deter defendant and others from criminal activity with the need to punish and rehabilitate defendant, the court stated:
All efforts at punishment thus far have been a complete and total failure. So, obviously he hasn't been punished and we have not deterred him from continuing the use of drugs, because that, he did on a continuous pattern, starting a few months after sentencing, probably never stopped the use of drugs. We find there are no prospects for rehabilitation unless the gentleman in some way is convinced that society will not tolerate his conduct, that he will rid himself of drugs whether he likes it or not and, hopefully, we'll put him in a facility where he will not have access to them and for the first time, why, he will, by the passage of time alone, rid his body of the temptation to use drugs.
The court thereupon resentenced defendant to two consecutive terms of five years, the maximum sentence under N.J.S.A. 2C:43-6a(3) and the now repealed N.J.S.A. 24:21-20(a)(1), and imposed an eighteen-month period of parole ineligibility on each count. In an unreported decision, an excess-sentencing panel of the Appellate Division affirmed. We granted defendant's petition ...