On appeal from the Superior Court, Law Division, Camden County, State of New Jersey.
Michels and Long. The opinion of the court was delivered by Long, J.A.D.
In 1986, pursuant to a plea agreement, defendant, Ronald Robinson, entered pleas of guilty to the following charges: count one of Accusation No. 2623-10-86 charging second degree robbery contrary to N.J.S.A. 2C:15-1; count seven of Accusation No. 2624-10-86 charging terroristic threats contrary to N.J.S.A. 2C:12-3; count one of Accusation No. 2625-10-86 charging third degree theft contrary to N.J.S.A. 2C:20-3; count three of Accusation No. 2626-10-96 charging terroristic threats contrary to N.J.S.A. 2C:12-3; and count one of Accusation No. 2627-10-86 charging second degree burglary contrary to N.J.S.A. 2C:18-2. In accordance with the plea bargain, the State recommended concurrent probationary terms of five years on each conviction and the dismissal of numerous other charges then pending against defendant. The trial judge sentenced defendant to an aggregate term of five years probation and imposed an appropriate Violent Crimes Compensation Board penalty.
In 1987, defendant was arrested on a robbery charge at which time he made an inculpatory statement to a law enforcement officer. A charge of probation violation was filed against him in February, 1987. Thereafter, a violation hearing was held before the trial judge who based his conclusion that defendant violated his probation on the defendant's inculpatory statement and on the testimony of the officer as to the circumstances under which the statement was given. He then sentenced defendant on the original charges as follows: 1) ten
years, with parole ineligibility for five years, for robbery (Accusation 2623-10-86); 2) five years, with parole ineligibility for two and one-half years, for each of the counts of terroristic threats (for a total of ten years, with parole ineligibility for five years) (Accusations 2624-10-86 and 2626-10-86); 3) five years, with parole ineligibility for two and one-half years, for theft (Accusation 2625-10-86); and 4) ten years, with parole ineligibility for five years, for burglary (Accusation 2627-10-87). The sentences were to be served consecutively, except for the sentence for burglary, which was ordered to run concurrently with the robbery sentence. Defendant later entered a guilty plea to the charge of robbery which underpinned his probation violation and was sentenced to an extended term of thirty years, twelve and one-half without parole to be served concurrent with the sentence at issue here.
Defendant appeals, claiming that the following errors warrant reversal:
THE COURT IMPROPERLY IMPOSED A PROBATION REVOCATION SINCE AT THE TIME OF ITS REVOCATION DEFENDANT HAD NOT BEEN FOUND GUILTY OF ANY OFFENSE.
THE SENTENCE IMPOSED ON DEFENDANT'S PROBATION VIOLATION WAS MANIFESTLY EXCESSIVE, UNREASONABLE AND AN IMPROPER EXERCISE OF JUDICIAL DISCRETION.
In Point I, defendant maintains that the State is precluded from holding a revocation proceeding in a situation such as this. In support of this argument, he relies on State v. Reyes, 207 N.J. Super. 126, 135 n. 2 (App.Div.1986), certif. den. 103 N.J. 499 (1986) where we made the following observation:
If the charged violation is the commission of an offense for which defendant has not yet been tried, the issue of guilt or innocence of that offense is not normally tried in a summary hearing. Defendant may be committed without bail in the probation proceedings pending determination of the new criminal charge "if there is probable cause to believe that the defendant has committed another offense or if he has been held to answer therefor. . . ." [citation omitted] [232 NJSuper Page 25] The question presented here is not answered by Reyes. We are not faced with the issue of what is the better procedure in a case in which a violation of probation is based on the commission of a new offense. Clearly, in most cases, the most sensible, fair and expeditious procedure will be to await the outcome of the trial on the new criminal charges. See Commentary, New Jersey Penal Code (1971), Vol. II at 347. The question before us is a different one: is the State limited to abiding the event of a new criminal disposition or may a violation of probation hearing take place in advance of it. Our recent decision in State v. Wilkins, 203 N.J. Super. 261 (1989) laid this issue to rest. There we reaffirmed the proposition that the commission of a new offense also constitutes a failure to comply with a substantial requirement imposed as a condition of probation under N.J.S.A. 2C:45-3a(4). Thus, while under the statute, a probationer may be confined without bail pending disposition of criminal charges (N.J.S.A. 2C:45-3a(3)), that is not the only available procedure. The court may alternatively proceed with a probation revocation hearing based upon the probationer's failure to comply with the probation condition requiring law-abiding ...