On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-07-0969.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Parker.
Defendant Gregory Grant appeals from a judgment of conviction entered on December 7, 2005 after he entered a guilty plea to a violation of probation (VOP). He previously pled guilty to third degree theft of a motor vehicle, N.J.S.A. 2C:20- 3, and driving while suspended, N.J.S.A. 39:3-40.
On July 28, 2004, defendant pled guilty pursuant to a non- negotiated plea agreement, whereby he was sentenced to a five- year term of probation and long-term drug treatment. The plea agreement provided that if defendant failed to complete the drug treatment program, he was subject to the imposition of a five- year prison term, subject to two-and-a-half years parole ineligibility. Defendant twice violated probation by leaving drug treatment programs after a few days. On December 2, 2005, after he pled guilty to the violation of probation, defendant was sentenced in accordance with the plea agreement to a term of five years subject to two-and-a-half years parole ineligibility.
In this appeal, defendant argues:
POINT ONE THE IMPOSITION OF A MAXIMUM TERM UPON VIOLATION OF PROBATION IS IMPERMISSIBLE PURSUANT TO STATE V. BAYLASS, AND IS NOT JUSTIFIED BY AN "ALTERNATIVE" PLEA AGREEMENT
In State v. Baylass, 114 N.J. 169 (1989), the defendant entered a guilty plea to three counts of forgery and was placed on probation. When he violated probation, he was sentenced to a term of four-and-a-half years, subject to two years and three months parole ineligibility. After we affirmed on a Sentence Only Argument (SOA) calendar, the Supreme Court reversed, holding 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.
At sentencing on the VOP, defense counsel argued that even though the plea agreement called for a term of five years if probation was violated, defendant should be sentenced to no more than the presumptive or mid-range term of three years. After finding that defendant willfully violated probation and that the aggravating factors still outweighed the non-existent mitigating factors, the trial judge sentenced defendant in accordance with the plea agreement.
Defendant appealed and the case was presented to us on an SOA calendar in August 2007. It was transferred to a plenary calendar for full briefing on the issue.
As defendant notes in his brief,
As noted, the Court in Baylass stated that "[o]nce the court determines that the violation justifies revocation of probation, the Code controls the sentencing decision," meaning that "the term of imprisonment should not exceed the presumptive sentence unless the aggravating factors [remaining after the violation] preponderate over the mitigating factors [as affected by the violation]." 114 N.J. at 178. Accordingly, the imposition of a maximum ...