Before Judges Havey, Wells and Payne. On appeal from Superior Court
of New Jersey, Law Division, Mercer County, Indictment Numbers: 96-03-290
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant George Thomas was indicted in I-92-06-614 for receipt of stolen property in violation of N.J.S.A. 2C:20-7a and 2C:2-6, having been found as a passenger in a stolen auto.
He was indicted in I-96-03-290 for, among other things, fraudulent use of a credit card in violation of N.J.S.A. 2C:21-6h and theft by deception from a supermarket, Mayfair Foodtown, in violation of N.J.S.A. 2C:20-4. He pled guilty to the stated charges in both indictments, and on June 14, 1996, he was sentenced to a three-year period of probation, with the requirement that he pay restitution in the amount of $2,979.22 and perform a specified amount of community service. In determining the appropriate sentence on the two offenses, the sentencing judge found as an aggravating factor number 9 (the need to deter defendant and others from violating the law) and, as mitigating factors, numbers 1 (defendant's conduct neither caused nor threatened serious harm), 7 (defendant had no history of prior delinquency or criminal activity), 9 (the character and attitude of the defendant indicated that he was unlikely to commit another offense), and 10 (defendant was particularly likely to respond affirmatively to probationary treatment). See N.J.S.A. 2C:44-1a(9) and -1b(1), (7), (9), and (10).
Exactly one year after he was placed on probation, on June 14, 1997, Thomas was stopped for speeding on the New Jersey Turnpike, and it was discovered that he was driving a stolen car. He was therefore charged in I-98-08-796 with receipt of stolen property, N.J.S.A. 2C:20-7a, and unlawful withholding of a means of conveyance, N.J.S.A. 2C:20-10b. He was tried on those charges and convicted. Prior to sentencing, he pled guilty to a charge of harassment, N.J.S.A. 2C:33-4, set forth as Count One of I-99-03-292, as the result of another offense committed on June 24, 1998 while on probation.
Despite the fact that Thomas had committed violations of the terms of his probation on two occasions during his probationary period, charges were not filed at the time of either the 1997 or 1998 arrest. Instead, no action was taken by the probation department until June 11, 1999, two days before the three-year probationary period ended. At that time, according to the testimony of Thomas' probation officer given at a hearing conducted in the matter, she prepared an arrest warrant that was signed by a Chief Green. She stated as well that the warrant had been filed on June 16, 1999, a few days after the expiration of probation, and had been entered in a computer by an employee of the Mercer County Sheriff's Department on that same day. However, the warrant never appeared as a computerized entry, and its existence was not disclosed to the State or Thomas' attorney during any of his court appearances in connection with his subsequent trial on charges related to receipt of stolen property or his plea of guilty to the charge of harassment. A formal petition seeking revocation of probation was not prepared until February 10, 2000.
Twelve days thereafter, on February 22, 2000, defendant was sentenced on I-98-08-796 and I-99-03-292. It was intended that a revocation hearing and sentencing on the probationary violations would occur simultaneously with sentencing on the 1998 and 1999 indictments. However, defendant took the position that the court lacked jurisdiction over the violations because revocation proceedings were not "commenced" until some time after the probationary period expired. A hearing was therefore scheduled on that issue, and sentencing proceeded on the remaining charges.
The sentencing judge sentenced Thomas to the maximum five-year term on the third-degree receipt of stolen property charge and to a concurrent eighteen-month term on the fourth- degree harassment charge. The fourth-degree charge of unlawful withholding of a means of conveyance was merged into the charge of receipt of stolen property. In sentencing on the stolen property charge, the judge found as aggravating factors numbers 3 (the risk that defendant would commit another offense), 6 (the extent of his prior record), 9 (the need for deterrence), and "14" - the fact that the crime was committed while defendant was on probation. See N.J.S.A. 2C:44-1a(3), (6), and (9). Factor number 2 (that defendant did not contemplate that his conduct would cause or threaten serious harm) was found as a mitigating factor. See N.J.S.A. 2C:44-1b(2). In sentencing on the harassment charge, the judge found as aggravating factors 3, 6, 8 (that the offense was committed against a police officer) and "14," with number 2 as a mitigating factor. See N.J.S.A. 2C:44-1a(3), (6), and (8) and -1b(2). Aggravating factor "14" was enumerated on the judgments of conviction, as well.
Following a hearing, the judge found the revocation of probation to have been timely commenced, and that jurisdiction over it existed. He therefore sentenced Thomas on the violations to concurrent three-year custodial terms, consecutive to the sentences imposed in connection with I-98- 08-796 and I-99-03-292. The sentences were justified by the removal of the mitigating factors found previously.
In these consolidated appeals from the sentences imposed for the violations of probation (A-1488-00T4) and from the court's exercise of jurisdiction over the revocation proceedings and its imposition of a five-year sentence on Thomas for his conviction for receipt of stolen property (A- 1493-00T4), *fn1 Thomas makes the following arguments:
Point I The Trial Court Lacked
Jurisdiction To Revoke Probation
Because The Probationary Period Had Long Expired Before the State Commenced Any Revocation Proceeding Point II The Five Year Sentence Imposed By The Court Is Excessive We address Thomas' ...