February 28, 2017
appeal from the Superior Court of New Jersey, Law Division,
Camden County, Indictment No. 13-01-0336.
Magid, Assistant Prosecutor, argued the cause for appellant
(Mary Eva Colalillo, Camden County Prosecutor, attorney; Mr.
Magid, of counsel and on the brief).
Van Jura, Deputy Public Defender, II, argued the cause for
respondent (Joseph E. Krakora, Public Defender, attorney; Mr.
Van Jura, of counsel and on the brief).
Judges Messano, Suter, and Guadagno.
appeal requires us to interpret two sections of N.J.S.A.
2C:35-14 (the Statute), the provision of our Criminal Code
permitting the court to sentence certain offenders to
"special probation." Specifically, we examine
N.J.S.A. 2C:35-14(a)(7) (Section a(7)), which provides that
the court may sentence a defendant to special probation if,
after making other required findings, the court also finds
"the person has not been previously convicted or
adjudicated delinquent for, and does not have a pending
charge of murder, aggravated manslaughter, manslaughter,
kidnapping, aggravated assault, aggravated sexual
assault or sexual assault . . . ." (Emphasis added). We
also must consider N.J.S.A. 2C:35-14(b)(2) (Section b(2)),
which provides: "A person shall not be eligible for
special probation ... if the person is convicted of or
adjudicated delinquent for ... a crime of the first or second
degree [subject to the No Early Release Act (NERA), N.J.S.A.
2C:43-7.2 (d) ], other than a crime of the second degree
involving . . . robbery or . . . burglary."
case, defendant Donnell Ancrum pled guilty to Camden County
Indictment Number 13-01-0336, charging him with second-degree
burglary, N.J.S.A. 2C:18-2(a)(1) (count one), second-degree
robbery, N.J.S.A. 2C:15-1(a)(1) (count two), second-degree
aggravated assault (serious bodily injury), N.J.S.A.
2C:12-1(b)(1) (count three), and third-degree aggravated
assault (significant bodily injury), N.J.S.A. 2C:12-1(b)(7)
(count four). After merging count four into count three, and
count three into counts one and two, and over the State's
objection, the judge sentenced defendant to special probation
for five years, conditioned upon his enrollment in, and
successful completion of, Drug Court. The judge denied the
State's request to stay imposition of the sentence. We
granted the State's motion for leave to appeal, entered a
stay and expedited the appeal. See State v. Rippy, 4
31 N.J.Super. 338, 347 (App. Div. 2013) ("The State may
appeal an illegal sentence, and a sentence not imposed in
accordance with law is illegal.") (citations omitted),
certif. denied, 217 N.J. 284 (2014). We now reverse,
vacate defendant's guilty pleas and remand the matter to
the Law Division.
an earlier court appearance at which there were apparent
discussions regarding defendant's eligibility for Drug
Court, the parties appeared before the Law Division judge on
July 22, 2016.The judge described the disputed
facts of the case:
[T]he assault consisted of . . . defendant striking the
homeowner . . . during the commission of the theft from the
home .... [T]he defendant entered the home, was . . .
discovered either by the homeowner coming back to the home or
having been there unbeknownst to the defendant, and then
appearing. . . . [T]he allegation is there was a
confrontation. . . . [T]he defendant struck the homeowner.
Great controversy about the degree to which the homeowner was
injured, with medical records and other issues that counsel
have made me aware of as well.
For drug court purposes, the issue that we confront ... is
... if [defendant] . . . [were to be] found guilty of both
the aggravated assault and the robbery, would he be eligible
to apply to drug court[?]
judge noted that a conviction for aggravated assault would
bar a sentence of special probation and defendant's entry
into Drug Court.
relying primarily on State v. Mirault, 92 N.J. 4 92
(1983), the judge concluded that, under the facts of the
case, any conviction for aggravated assault would merge with
any conviction for robbery or burglary. As a result,
"defendant would not be statutorily barred" from
entry into Drug Court. The judge also found that based upon
the State's representations regarding the facts of the
case, and defendant's lack of a prior criminal record,
defendant would not be excluded under "paragraph nine
either." See N.J.S.A. 2C:35-14(a)(9) (requiring
the court find "no danger to the community will result
from [defendant] being placed on special probation").
Assessment Services for the Courts (TASC) evaluated defendant
and recommended he receive intensive outpatient
treatment. During proceedings on September 28,
2016, the prosecutor argued defendant was ineligible for Drug
Court because there was no nexus between his drug abuse and
the crime. See N.J.S.A. 2C:35-14(a)(3) ("[T]he
present offense was committed while the person was under the
influence of a controlled dangerous substance ... or was
committed to acquire property or monies in order to support
the person's drug or alcohol dependency . . ."). The
prosecutor noted the TASC report demonstrated defendant's
"very minimal" use of drugs or alcohol, and the
allegations of violence were inconsistent with
defendant's admitted use of only marijuana. Defense
counsel countered, contending defendant's admitted
marijuana use was "out of control."
judge determined defendant was "clinically
eligible" for Drug Court. Noting defendant had no other
source of income, the judge concluded the offense was
committed either while defendant was under the influence of
cannabis or for the purpose of obtaining money to support his
pled guilty under oath to all four counts of the indictment
without any agreed-upon sentence recommendation by the State,
i.e., a so-called "open plea, " and with the State
continuing to object to defendant's entry into Drug
Court. Defendant admitted entering the victim's home
without permission and with the intent to commit a crime,
"tak[ing] something" from the victim and purposely
striking the victim in the face as defendant ran out of the
house. Defendant admitted that the victim suffered a
concussion as a result, and the judge concluded that
established "serious bodily injury." The judge
accepted defendant's guilty pleas.
sentencing on October 26, the State renewed its objection to
defendant being placed on special probation and requested he
be sentenced to eight years' imprisonment, subject to
NERA. The victim told the judge that he had suffered serious
injuries because of the assault, including "near
constant headaches, " sensitivity to noise and light,
"balance problems, " "permanent damage to ...