On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 00-02-0056 and 01-11-1483.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and St. John.
Defendant Christopher Parson appeals the sentence imposed by the Law Division following his plea of guilty to violation of probation for two unrelated criminal matters. One sentence resulted from Parson's earlier plea to three counts of burglary, contrary to N.J.S.A. 2C:18-2(a)(1), arising out of an indictment. The second resulted from his plea to an accusation charging him with theft by unlawful taking, contrary to N.J.S.A. 2C:20-3(a). The aggregate sentence at issue included two consecutive sentences of four years incarceration, each with an eighteen-month period of parole ineligibility.
Parson raises the following issues on appeal:
POINT I: PURSUANT TO STATE v. HERNANDEZ DEFENDANT IS ENTITLED TO JAIL CREDIT TOWARD HIS SENTENCES ON BOTH THE ACCUSATION AND INDICTMENT FOR TIME SPENT IN CUSTODY AND IN INPATIENT REHABILITATION PROGRAMS PRIOR TO HIS APRIL 12, 2011 SENTENCING.
POINT II: THE IMPOSITION OF CONSECUTIVE PRISON TERMS BOTH WITH PERIODS OF PAROLE INELIGIBILITY ON DEFENDANT'S VIOLATION OF PROBATION WAS EXCESSIVE.
With respect to the issue of jail credit, the State now concedes that, pursuant to State v. Hernandez, 208 N.J. 24, 28 (2011), Parson is entitled to jail credit on both the indictment and the accusation for time spent in custody and in a qualified, inpatient rehabilitation program. Although the State now challenges the sentencing judge's calculation of the number of days of jail credit, it did not raise that issue before the Law Division and it did not file a cross-appeal. Consequently, the issue is not properly before us. Parson is entitled to 456 days on the indictment and 451 days on the accusation.
With respect to the consecutive nature of the sentences, we note that the sentencing judge did not comply with the requirements of State v. Miller, 108 N.J. 112, 122 (1987) and State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), that a judge imposing consecutive sentences clearly state his or her reasons for doing so following an analysis of the factors outlined in Yarbough.
In addition, the sentence needs to be reconsidered in light of the Supreme Court's holding in State v. Baylass, 114 N.J. 169 (1989). In Baylass, the Court held that a violation of probation may not be considered an aggravating sentencing factor, id. at 175-77, and stated: "We anticipate that 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. Here, the sentencing judge failed to identify any circumstance that would make this one of those "rare" cases in which it is appropriate to impose a period of parole ineligibility upon a violation of probation.
For the reasons explained, we remand for resentencing consistent with this opinion. We do not retain jurisdiction.