On certification to the Superior Court, Appellate Division.
Stein, Wilentz, Clifford, Handler, Pollock, O'Hern, Garibaldi
The opinion of the court was delivered by
This appeal concerns the scope of a court's discretion when resentencing a defendant for violation of the conditions of a probationary term based on proof of a subsequent criminal conviction. We consider whether, following revocation of probation, a court may impose either a term concurrent or consecutive to the sentence received for the subsequent offense, or whether N.J.S.A. 2C:44-5f(3) requires that any sentence imposed for the violation of probation be consecutive to the sentence imposed for the subsequent offense.
In January 1989, defendant, Michael Sutton, was indicted in Ocean County for two counts of possession of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-10a(1), and possession of a controlled dangerous substance with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and b(3) ("Ocean County offense"). Defendant pleaded guilty to the possession-with-intent-to-distribute charge. In exchange, the County Prosecutor agreed to dismiss the remaining counts and recommend a sentence of time served.
At the plea hearing, defendant admitted that on April 6, 1988, he and three other persons had been stopped by the New Jersey State Police for a motor-vehicle violation. During the course of that stop, police had found approximately 2.83 grams of heroin and 1.02 grams of cocaine in defendant's possession. Defendant admitted that although the heroin had been primarily for his personal use, "eventually [he] would have shared some with the other members of the car." Satisfied that defendant's recitation provided an adequate factual basis, the court accepted the plea.
The court sentenced defendant to a five-year probationary term with the condition that he enter a drug-treatment program.
Further, the court revoked defendant's driver's license for twenty-four months and imposed a $1,000 D.E.D.R. penalty, a $50 forensic-laboratory fee, and a $30 V.C.C.B. penalty.
To accommodate defendant, probationary supervision was transferred to Atlantic County. While on probation, defendant was arrested in Atlantic County for new drug offenses. Defendant was indicted for possession of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-10a(1); possession of a controlled dangerous substance with intent to distribute, contrary to N.J.S.A. 2C:35-5b(3); and distribution of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-5b(3) ("Atlantic County offense").
Defendant pleaded guilty to the possession and possession-with-intent-to-distribute charges. In establishing a factual basis for his plea, defendant admitted that on July 8, 1989, a police officer had discovered one bag of heroin on defendant's person. With respect to the possession-with-intent-to-distribute charge, defendant explained that on June 10, 1990, a man had offered defendant forty dollars with which to purchase two bags of heroin, one of which defendant could retain for his personal use. Defendant admitted that he had bought the heroin and had distributed one bag to the man.
Because of defendant's prior convictions for possession with intent to distribute, including the Ocean County offense, he was sentenced to an extended term of ten-years imprisonment with a two-year period of parole ineligibility. N.J.S.A. 2C:43-6f. In addition, defendant's driving privileges were suspended for twenty-four months and he was required to pay a $1,000 D.E.D.R. penalty, a $50 forensic-laboratory fee, and a $30 V.C.C.B. penalty.
Thereafter, the Ocean County Probation Department charged defendant with violating the conditions of his probationary term. On November 5, 1990, the trial court sustained the charge, citing defendant's recent conviction in Atlantic County. The court resentenced defendant for the Ocean County offense to the presumptive term of four years and ordered that it run consecutive to the Atlantic County sentence. The court justified its decision to impose a consecutive term, stating:
Probation is a privilege and when you violate probation, my position is, you get an additional jail sentence.
I don't think that anytime someone commits an offense while on probation, they should have a [concurrent] sentence. I don't know if I've ever imposed a [concurrent] sentence when it wasn't brought to me as a package deal, and I don't think it's appropriate in this case. * * * I'm sorry, Mr. Sutton, but I just don't think that there should be free crimes, and that's the way I interpret it anytime a sentence was given.
Defendant appealed. In an unreported decision, an excessive-sentence panel of the Appellate Division remanded the matter to the trial court for reconsideration in light of our decisions in State v. Molina, 114 N.J. 181, 553 A.2d 332 (1989); State v. Baylass, 114 N.J. 169, 553 A.2d 326 (1989); and State v. Yarbough, 100 N.J. 627, 498 A.2d 1239 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). At the resentencing hearing, defense counsel urged that any term imposed for the Ocean County offense based on the violation of probation should be made concurrent with the Atlantic County sentence. In response to the court's concern that a concurrent sentence would allow "one free crime", defense counsel explained that defendant had received an extended sentence in Atlantic County, in part ...