On appeal from Superior Court of New Jersey, Law Division, Camden County.
Approved for Publication April 3, 1997.
Before Judges Dreier, Newman and Villanueva. The opinion of the court was delivered by Newman, J.A.D.
The opinion of the court was delivered by: Newman
The opinion of the court was delivered by
Defendant, Oscar Williams, Jr., appeals from the imposition of an extended term of ten years' imprisonment with a five-year period of parole ineligibility, to which he was resentenced after he violated probation by being convicted of multiple other offenses. We affirm.
These are the facts. On May 18, 1990, defendant was indicted on four counts of third-degree burglary, N.J.S.A. 2C:18-2 (Counts 1, 3, 5 and 7) and four counts of third-degree theft, N.J.S.A. 2C:20-3 (Counts 2, 4, 6 and 8). On September 17, 1990, defendant pled guilty to Count 7 of the indictment. Under the negotiated plea, defendant agreed to be sentenced as a persistent offender to an extended term of ten years with a five-year period of parole ineligibility, and the State agreed to dismiss the remaining counts of the indictment. Further, the State then agreed not to contest defendant's application for reduction of his sentence to a five-year probationary term if defendant had been accepted into a substance abuse rehabilitation program at the time he made his motion.
On November 2, 1990, the court sentenced defendant to ten years' imprisonment with a five-year parole disqualifier, in accordance with the plea agreement. At sentencing, the trial Judge said the following:
You're 27 years of age. You've executed a stipulation for an extended term which increases and enhances the penalties on the third-degree crime to which you pled guilty. You're in good health. You do have the drug problem. Single, high school graduate, plus a year of college. You served in the Army. Aggravating factors are your record. There were several juvenile convictions, five Superior Court convictions and a number of municipal court convictions, so your record, past criminal record, [is] an aggravating factor as is the risk of another offense and need for deterrence.
Ten months later, on September 3, 1991, defendant moved for reconsideration of the sentence pursuant to R. 3:21-10(b)(1). The motion was granted. Defendant was resentenced to a five-year term of probation, a condition of which was the successful completion of the inpatient drug rehabilitation program run through P.O.S.T. House in New Lisbon.
A little over a year later, on November 30, 1992, defendant was arrested for burglary and theft. On November 15, 1993, the Camden County Probation Department filed a petition of violation of probation, listing five grounds for violation: failure to remain arrest free, failure to enter an inpatient drug treatment program, failure to enter an intensive outpatient drug treatment program, failure to comply with urine monitoring on November 24, 1992 and failure to report to Probation on September 1, 1992. On August 4, 1994, a sixth ground was added to the petition: conviction of four counts of third-degree burglary and three counts of third-degree theft arising out of defendant's November 1992 arrest.
At the probation violation hearing on September 30, 1994, the State withdrew the first five grounds listed in the violation petition, relying solely on defendant's convictions while on probation. The trial Judge terminated probation and reimposed the original sentence of ten years with a five-year parole disqualifier, to run concurrent with the sentence imposed on the new convictions. The trial Judge credited defendant for the time he had already served. The Judge did not reiterate the aggravating or mitigating factors or place his reasons for the sentence on the record.
On appeal, defendant raises the following points:
POINT I THE IMPOSITION OF THE EXTENDED TERM TEN (10) YEAR SENTENCE WITH THE EXTENDED TERM OF PAROLE INELIGIBILITY OF FIVE (5) YEARS ON THE VIOLATION OF PROBATION WAS MANIFESTLY EXCESSIVE AND REPRESENTS AN ABUSE OF DISCRETION BY THE SENTENCING COURT. A. THE COURT FAILED TO PROPERLY "RESENTENCE" DEFENDANT ON THE VIOLATION OF PROBATION. B. THE COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT AS A PERSISTENT OFFENDER. C. THE COURT ABUSED ITS DISCRETION BY FAILING TO STATE ITS REASONS FOR IMPOSING A FIVE (5) YEAR PAROLE DISQUALIFIER ON THE VIOLATION OF PROBATION. POINT II THE TRIAL COURT VIOLATED DEFENDANT'S ...