On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-05-1099.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 7, 2012
Before Judges Harris and Hoffman.
Defendant William Thomas -- after pleading guilty to several violations of probation -- appeals his June 3, 2011 sentence of three years imprisonment. Thomas had previously entered a plea of guilty to a charge of possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), and was afforded a five-year probationary sentence on October 8, 2010. Thomas's single claim on appeal is the following:
POINT I: THE COURT ERRED WHEN IT IMPOSED A STATE PRISON TERM UPON DEFENDANT'S VIOLATION OF PROBATION MERELY TO GIVE "SIGNIFICANCE OR CREDIBILITY" TO THE PROSECUTOR'S "PLEA INITIATIVE PROGRAM."
At Thomas's initial plea allocution hearing, in August 2010, the prosecutor indicated the following:
This is what's known as a factor ten plea.[*fn1 ] Basically what that means is should this defendant violate his probation for anything or miss [an] appointment, dirty urine, failure to notify a change of address, any of those, the State [will] be moving to sentence him to state prison. [The sentencing judge] in all likelihood would sentence him to state prison because factor ten will go away, factor ten being the only reason in this case that he is amenable to probation.
Although the court at that time did not expressly echo the prosecutor's statement, it asked defense counsel if he wanted to respond, and defense counsel stated, "No Judge. He's correct."
At sentencing on October 8, 2010, a different judge found the
existence of aggravating factors three, six, and nine.*fn2
He also applied mitigating factor ten. As a result, Thomas
was sentenced to a five-year probationary term, with several
conditions. The judge pointed out that if Thomas "do[es] well,
[probation] can be terminated sooner." However, Thomas was also urged
"to take advantage of [probation] because the aggravating factors
here, three, six and nine, could very well put you into that jail we
had a talk about a few moments ago. So take an opportunity to do
something and make some changes."*fn3
Thomas did not comply with the conditions of probation. In short order, he neglected to report to probation on October 27, 2010, failed to make child support payments, and tested positive for a controlled dangerous substance on March 31, 2011.
At the June 3, 2011 violation of probation hearing, defense counsel anticipated "that the State is probably going to be asking for [a] state prison [sentence]." To counter the State's position, defense counsel urged the court to "impose a 364 and terminate without improvement," hoping that the court would end probation and sentence Thomas to less than one year in the Atlantic County jail. When Thomas addressed the court, he said, "I would love for the Court to sentence me to a 364. I do not want to go to state prison. I can -- I understand that I made -- I made the mistake and I beg the Court to give me a 364, please." In response, the ...