State v. Dunlap
| Citation | 225 A.3d 1068,462 N.J.Super. 274 |
| Decision Date | 06 February 2020 |
| Docket Number | DOCKET NO. A-4526-17T1 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Walek P. DUNLAP, a/k/a Montana, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Joseph E. Krakora, Public Defender, attorney for appellant (Rochelle Mareka Amelia Watson, Deputy Public Defender, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (Lauren Bonfiglio, Deputy Attorney General, of counsel and on the brief).
Before Judges Messano, Vernoia and Susswein.
The opinion of the court was delivered by
SUSSWEIN, J.S.C. (temporarily assigned).
This case probes the boundaries of the United States Supreme Court's landmark Sixth Amendment decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Defendant, Walek P. Dunlap, appeals from a sentence of ten years in prison for a second-degree robbery conviction imposed after violating special probation (Drug Court), N.J.S.A. 2C:35-14. Defendant argues the revocation and resentencing provisions of the special probation statute, N.J.S.A. 2C:35-14(f), permit a judge to engage in prohibited judicial fact finding. He specifically contends the imposition of a ten-year prison sentence after having already served four years on special probation is an unconstitutional extension of the statutory ten-year maximum sentence for a second-degree conviction prescribed by N.J.S.A. 2C:43-6(a)(2), contrary to Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. In addition to his novel constitutional arguments, defendant contends the resentencing court did not follow sentencing guidelines and imposed an excessive sentence that shocks the judicial conscience. We reject defendant's contentions and affirm his sentence.
We begin by briefly summarizing the circumstances of the robbery. The victim drove to a gas station where he purchased marijuana from defendant for $20. The encounter was recorded on surveillance video. Defendant and the victim met again at the gas station about twenty minutes after the first transaction. This time, defendant and a second individual entered the victim's car. Defendant sat in the front passenger seat while the other person occupied the rear seat. The two passengers directed the victim to drive to an apartment complex. Once parked, the rear-seat passenger grabbed the victim around the neck, put a gun to his head, and told him to close his eyes, warning, "If you move, I'll kill you." Defendant took the victim's jacket, wallet, hat, money, and car keys. The robbers then exited the vehicle and fled.
A Middlesex County Grand Jury returned a four-count indictment charging defendant with (1) first-degree robbery contrary, to N.J.S.A. 2C:15-1 ; (2) second-degree conspiracy to commit armed robbery, contrary to N.J.S.A. 2C:5-2 ; (3) second-degree unlawful possession of a firearm, contrary to N.J.S.A. 2C:39-5(b) ; and (4) second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a).
Defendant entered a conditional guilty plea to an amended count of second-degree robbery. Defendant admitted he took the victim's possessions by threat of force. However, defendant denied using a gun. In exchange for the guilty plea, the State agreed to reduce the first-degree robbery charge to second degree1 and to dismiss the other charges in the indictment.
The plea agreement presented two distinct sentencing options contingent on whether defendant was admitted to Drug Court. If defendant's application to Drug Court were denied, the plea agreement provided that the term of imprisonment would be capped at six years, subject to the requirements of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In the event defendant's application to Drug Court was successful, the agreement provided for an alternate sentence of ten years in prison, subject to NERA. The alternate sentence could be imposed if defendant were subsequently revoked from Drug Court in accordance with N.J.S.A. 2C:35-14(f).
The trial court adjourned sentencing to permit defendant to apply to Drug Court. At the sentencing hearing, the trial court admitted defendant into Drug Court over the State's objection. Defendant then entered a new guilty plea. The new guilty plea included the alternate sentence recommendation of ten years in prison were defendant to be revoked from Drug Court. The court explained to defendant the new guilty plea replaced and superseded the original conditional plea. The court further explained that if special probation were revoked and defendant were resentenced to prison, that sentence would not be capped at six years. Rather, the court made clear, defendant could be resentenced to a ten-year term of imprisonment.
The sentencing court found aggravating factors three (the risk that defendant will commit another offense), six (the extent of defendant's prior criminal record and the seriousness of his convictions), and nine (the need to deter defendant and others). N.J.S.A. 2C:44-1(a)(3), (6), (9). The court found no mitigating factors. The court concluded the aggravating factors substantially outweighed the mitigating factors but not to the extent that the court would need to reject the plea agreement. The court sentenced defendant under the new guilty plea to a term of five years of special probation in Drug Court, N.J.S.A. 2C:35-14(a), with an alternate sentence of ten years in prison subject to NERA.
Defendant's performance in Drug Court was checkered with setbacks. After almost four years, the Probation Division filed a statement of charges alleging defendant had committed a series of violations of special probation falling into five distinct categories: (1) defendant tested positive for or admitted to the use of a controlled dangerous substance on six occasions; (2) defendant failed to report to his probation officer; (3) defendant was charged with multiple new offenses;2 (4) defendant twice failed to cooperate in examinations, tests, and counseling as directed by his probation officer; and (5) defendant failed to pay court-imposed financial obligations.
Defendant appeared before a different judge than the one who originally sentenced him and entered a guilty plea to violating conditions of special probation. Defendant admitted to all of the allegations in the statement of charges.
At a revocation-resentencing hearing, the court terminated defendant's participation in Drug Court and revoked special probation. The court considered the applicable aggravating and mitigating factors and imposed the alternate sentence of ten years in prison contemplated in the plea agreement. The sentencing court credited defendant with time served in county jail and in a residential treatment facility pursuant to Rule 3:21-8 and N.J.S.A. 2C:35-14(f)(4). He was not credited with time spent on special probation while participating in non-residential treatment. Defendant filed a timely appeal, challenging the ten-year prison sentence.
Defendant presents the following contentions for our consideration:
Defendant contends his ten-year prison sentence is illegal on several grounds. An illegal sentence is one that is either unconstitutional or not authorized by the New Jersey Code of Criminal Justice. State v. Zuber, 227 N.J. 422, 437, 152 A.3d 197 (2017) (); see also R. 3:21-10(b)(5) (). We first address defendant's constitutional argument.
Defendant contends that N.J.S.A. 2C:35-14(f) violates Sixth Amendment rights first recognized by the United States Supreme Court in Apprendi. In State v. Hawkins, 461 N.J.Super. 556, 559, 223 A.3d 201, 2019 WL 2563464 (App. Div.) certif. denied, 240 N.J. 199, 221 A.3d 590 (2019), we rejected essentially the same argument defendant raises in this appeal. In that case, we affirmed the defendant's eight-year prison sentence on his second-degree conviction "without ruling directly on ... whether the imposition of the maximum statutory custodial sentence plus special probation would be constitutionally defective." 461 N.J.Super. at 565, 223 A.3d 201.
In the case before us, defendant was in fact resentenced to the maximum statutory custodial sentence after having served several years on special probation. We therefore confront the issue left open in Hawkins. In doing so, we embrace the reasoning in Hawkins that a year on special probation undergoing outpatient treatment does not count as a year spent in prison. We further hold that Apprendi principles simply do not apply to non-custodial forms of punishment, such as special probation. We find additional support for this conclusion in the United States Supreme Court's most recent pronouncement in the line of Apprendi cases, United States v. Haymond, 588 U.S. ––––, 139 S. Ct. 2369, 204 L.Ed.2d 897 (2019).
Defendant's constitutional argument rests on two faulty premises. One relates to the specific circumstances under which his special probation was revoked. The other relates to his interpretation of what constitutes the "prescribed statutory maximum" sentence under Apprendi. We address both analytical flaws in turn.
To provide context for our review of defendant's proposed expansion of the Apprendi doctrine, we begin by summarizing Sixth Amendment principles that are now firmly...
To continue reading
Request your trial