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.
Pursuant to a plea agreement, defendant, John Baylass, was convicted of three counts of forgery and was placed on probation. He violated the terms of his probation, and the trial court converted defendant's status from non-incarceration to incarceration for four and one-half years with a parole disqualifier of two years and three months.
The Appellate Division affirmed the sentence after hearing the matter as part of the Excessive Sentence Oral Argument Program. We granted defendant's petition for certification, 111 N.J. 561 (1988), and now reverse and remand the matter to the Law Division. We hold that a violation of probation relates to mitigating, not aggravating, factors as identified at a defendant's original sentencing hearing. Except insofar as the probation violation affects the weight to be accorded to mitigating factors, the violation may not be used to impose a prison term greater than the presumptive sentence or a period of parole
ineligibility. Nor should probation violations be used to justify the imposition of consecutive sentences.
Defendant was indicted on three counts of forgery, N.J.S.A. 2C:21-1(a), a fourth-degree offense, and theft by deception, N.J.S.A. 2C:20-4, a second-degree offense. The underlying facts were that over two consecutive days defendant cashed at a bank three forged checks totaling $522.43. He pled guilty to the three forgery counts. In exchange, the State dismissed the theft charge and recommended that defendant receive three concurrent five-year probationary terms.
At the sentencing hearing on June 20, 1986, the trial court approved the recommended sentence, and admonished defendant that if he violated the terms of his probation, the court could resentence him on each count to the maximum term of eighteen months with a nine-month period of parole ineligibility, require that the terms run consecutively, and impose a $7500 fine. The court warned the defendant that
in the opinion of the court, you, sir, are heading for a serious involvement with the criminal justice system. You have seven prior municipal convictions, you have received fines, probations, short jail terms but, apparently, you have not been convinced that violating the law is serious business. You are getting one more chance by reason of the graciousness of the prosecutor.
The court then sentenced defendant to five years' probation, 200 hours of community service, restitution of $410.43, and a $90 violent crime penalty. At some later time, remaining drug-free apparently became a further condition of defendant's probation.
Thereafter defendant was charged with violating the terms of his probation. On December 12, 1986, the trial court sustained the charges, finding that defendant had failed to keep three appointments with his probation officer and had continued to use drugs. At the hearing on the probation violations, the court focused on defendant's drug use. Defense counsel sought to explain defendant's conduct by stating that defendant's
problem "all along" was his heroin addiction. In response to defendant's assertion that he "wanted help," the court stated, "I'll give you help. Give you a lot of help." Referring to the fact that defendant lived at home with his parents, the court continued, "[i]t's bad enough he lives at their home and they have to feed him, a man of twenty-five years of age. I find that he's an absolute disgrace to the community, to mankind." In determining the length of defendant's sentence, the court focused on defendant's drug use, stating:
I can't conceive of a more violent -- violation of probation than the continuous use of heavy drugs. He claims that he's been unable to do his community service. Well, obviously he's been too busy taking drugs.
When I look at the need here for punishment and deterrence, there is a substantial need to punish him for his criminal activity and to deter him from not only future criminal activity, but the use of drugs * * *.
The court thereupon imposed three consecutive eighteen-month sentences, the maximum term for a fourth-degree offense, with a nine-month parole disqualifier on each term. According to the court, three consecutive sentences were necessary to ...