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State v. Ancrum

Superior Court of New Jersey, Appellate Division

April 19, 2017

STATE OF NEW JERSEY, Plaintiff-Appellant,
DONNELL W. ANCRUM, Defendant-Respondent.

          Argued February 28, 2017

         On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-01-0336.

          Jason Magid, Assistant Prosecutor, argued the cause for appellant (Mary Eva Colalillo, Camden County Prosecutor, attorney; Mr. Magid, of counsel and on the brief).

          Stefan 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).

          Before Judges Messano, Suter, and Guadagno.


          MESSANO, P.J.A.D.

         This 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."

         In this 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.


         Following 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.[1]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[?]

         The judge noted that a conviction for aggravated assault would bar a sentence of special probation and defendant's entry into Drug Court.

         However, 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").

         Treatment Assessment Services for the Courts (TASC) evaluated defendant and recommended he receive intensive outpatient treatment.[2] 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."

         The 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 marijuana habit.

         Defendant 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.

         At 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 ...

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