On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-08-2376.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez and Skillman.
Defendant was indicted for conspiracy to possess controlled dangerous substances with the intent to distribute, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5, and various other drug offenses. Defendant pled guilty to the conspiracy charge pursuant to a plea bargain. The trial court sentenced defendant to a four-year term of probation for the conspiracy and dismissed the other charges against him.
The trial court subsequently determined that defendant had violated the terms of his probation.*fn1 Based on that violation, the court sentenced defendant to a five-year term of imprisonment, with two-and-a-half years of parole ineligibility.
After hearing defendant's appeal from this sentence on an excess sentence calendar, see R. 2:9-11, we summarily affirmed by an order entered on May 2, 2011. On defendant's petition for certification, the Supreme Court summarily remanded for this court to consider on a plenary calendar. The appeal is now before us pursuant to that remand.
Defendant's sole argument is that the trial court failed to follow the sentencing guidelines contained in State v. Baylass, 114 N.J. 169 (1989), and State v. Molina, 114 N.J. 181 (1989), in sentencing him for the violation of probation. Upon further review, we agree with this argument.
In Baylass, the Court held that a violation of probation may not be considered an aggravating sentencing factor, 114 N.J. at 175-77, and stated: "We anticipate it will be a rare case in which the balance of the original aggravating factors and surviving mitigating factors [after a finding of a violation of probation] weigh in favor of a term of imprisonment greater than the presumptive sentence or of a period of parole ineligibility[,]" id. at 178.
The trial court failed to identify anything regarding defendant's violation of probation or any other circumstances that made this one of those "rare" cases in which it would be appropriate to impose the maximum base term and a period of parole ineligibility upon a violation of probation. Consequently, the court should have imposed only the presumptive, now the mid-point of the range, sentence for a third-degree offense and no period of parole ineligibility.
Accordingly, we reverse the sentence imposed upon defendant for his violation of probation and remand for entry of an amended judgment of conviction providing for a four-year term of ...