State v. Sutton

• Decision Date: 22 June 1993
• Citation: 625 A.2d 1132,132 N.J. 471
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Michael SUTTON, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 471

132 N.J. 471

625 A.2d 1132

STATE of New Jersey, Plaintiff-Respondent, v. Michael SUTTON, Defendant-Appellant.

Supreme Court of New Jersey.

Argued Jan. 19, 1993.

Decided June 22, 1993.

James K. Smith, Jr., Deputy Public Defender, for defendant-appellant (Zulima V. Farber, Public Defender, atty.).

Carol M. Henderson, Deputy Atty. Gen., for plaintiff-respondent (Robert J. Del Tufo, Atty. Gen., of N.J., atty.).

The opinion of the Court was delivered by

STEIN, J.

This appeal concerns the scope of a court's discretion when resentencing a defendant for violation of the conditions of a probationary term based on proof of a subsequent criminal conviction. We consider whether, following revocation of probation, a court may impose either a term concurrent or consecutive to the sentence received for the subsequent offense, or whether N.J.S.A. 2C:44-5f(3) requires that any sentence imposed for the violation of probation be consecutive to the sentence imposed for the subsequent offense.

I

In January 1989, defendant, Michael Sutton, was indicted in Ocean County for two counts of possession of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-10a(1), and possession of a controlled dangerous substance with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and b(3) ("Ocean County offense"). Defendant pleaded guilty to the possession-with-intent-to-distribute charge. In exchange, the County Prosecutor agreed to dismiss the remaining counts and recommend a sentence of time served.

At the plea hearing, defendant admitted that on April 6, 1988, he and three other persons had been stopped by the New Jersey State Police for a motor-vehicle violation. During the course of that stop, police had found approximately 2.83 grams of heroin and 1.02 grams of cocaine in defendant's possession. Defendant admitted that although the heroin had been primarily for his personal use, "eventually [he] would have shared some with the other members of the car." Satisfied that defendant's recitation provided an adequate factual basis, the court accepted the plea.

The court sentenced defendant to a five-year probationary term with the condition that he enter a drug-treatment program. Further, the court revoked defendant's driver's license for twenty-four months and imposed a $1,000 D.E.D.R. penalty, a $50 forensic-laboratory fee, and a $30 V.C.C.B. penalty.

To accommodate defendant, probationary supervision was transferred to Atlantic County. While on probation, defendant was arrested in Atlantic County for new drug offenses. Defendant was indicted for possession of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-10a(1); possession of a controlled dangerous substance with intent to distribute, contrary to N.J.S.A. 2C:35-5b(3); and distribution of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-5b(3) ("Atlantic County offense").

Defendant pleaded guilty to the possession and possession-with-intent-to-distribute charges. In establishing a factual basis for his plea, defendant admitted that on July 8, 1989, a police officer had discovered one bag of heroin on defendant's person. With respect to the possession-with-intent-to-distribute charge, defendant explained that on June 10, 1990, a man had offered defendant forty dollars with which to purchase two bags of heroin, one of which defendant could retain for his personal use. Defendant admitted that he had bought the heroin and had distributed one bag to the man.

Because of defendant's prior convictions for possession with intent to distribute, including the Ocean County offense, he was sentenced to an extended term of ten-years imprisonment with a two-year period of parole ineligibility. N.J.S.A. 2C:43-6f. In addition, defendant's driving privileges were suspended for twenty-four months and he was required to pay a $1,000 D.E.D.R. penalty, a $50 forensic-laboratory fee, and a $30 V.C.C.B. penalty.

Thereafter, the Ocean County Probation Department charged defendant with violating the conditions of his probationary term. On November 5, 1990, the trial court sustained the charge, citing defendant's recent conviction in Atlantic County. The court resentenced defendant for the Ocean County offense to the presumptive term of four years and ordered that it run consecutive to the Atlantic County sentence. The court justified its decision to impose a consecutive term, stating:

[P]robation is a privilege and when you violate probation, my position is, you get an additional jail sentence.

* * * * * *

I don't think that anytime someone commits an offense while on probation, they should have a [concurrent] sentence. I don't know if I've ever imposed a [concurrent] sentence when it wasn't brought to me as a package deal, and I don't think it's appropriate in this case. * * * I'm sorry, Mr. Sutton, but I just don't think that there should be free crimes, and that's the way I interpret it anytime a sentence was given.

Defendant appealed. In an unreported decision, an excessive-sentence panel of the Appellate Division remanded the matter to the trial court for reconsideration in light of our decisions in State v. Molina, 114 N.J. 181, 553 A.2d 332 (1989); State v. Baylass, 114 N.J. 169, 553 A.2d 326 (1989); and State v. Yarbough, 100 N.J. 627, 498 A.2d 1239 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed.2d 308 (1986).

At the resentencing hearing, defense counsel urged that any term imposed for the Ocean County offense based on the violation of probation should be made concurrent with the Atlantic County sentence. In response to the court's concern that a concurrent sentence would allow "one free crime", defense counsel explained that defendant had received an extended sentence in Atlantic County, in part because defendant had been on probation at the time those offenses had been committed. The County Prosecutor did not recommend either a concurrent or consecutive term but rather deferred to the court's discretion.

The court reimposed a four-year term consecutive to the Atlantic County sentence, stating:

When someone goes on probation, they are on probation, it's a privilege. If they violate probation, they're going to get a sentence from me invariably, or almost invariably. It's very rare that I don't impose a sentence. When you're on probation, you commit another crime, you violate probation, you're going to get sentenced.

* * * * * *

[A]s far as I'm concerned, it's tantamount to a free crime when you are not sentenced. I believe strongly that if someone's on probation, they violate probation, they should get an additional sentence. And that's what I imposed.

I again impose the same sentence, four-year sentence; and it's to be not concurrent, but consecutive. That's been my approach consistently. I think it's the proper approach, still think it's the proper approach. And I'm sorry, but that's the way I feel, and I have to live with my conscience.

* * * * * *

If you commit an offense while you're on probation, and you come back to me, you're going to get a sentence, and not something concurrent unless my hands are tied by an agreement the prosecutor has entered into. Unfortunately, I have to live with my conscience, and I have to impose the sentence I feel is appropriate; and that's what I have done.

* * * * * *

Unless my hands are tied by some agreement that affects me and my ability to make the decision I feel is appropriate, then I'm going to do what I feel is proper. And when someone's on probation and they violate probation, they're going to get sentenced from me almost invariably, unless there's some strong reason. I can't think of an example where I haven't done that.

Defendant again appealed. Defense counsel argued that, contrary to Molina, supra, 114 N.J. 181, 553 A.2d 332, the sentencing court improperly had considered defendant's probation violation in determining whether the sentence should be concurrent with or consecutive to the Atlantic County conviction. In addition, defense counsel maintained that had the trial court properly applied the factors outlined in our decision in Yarbough, supra, 100 N.J. 627, 498 A.2d 1239, a concurrent sentence would have been warranted. In an unreported decision, an excessive-sentence panel of the Appellate Division affirmed. We granted defendant's petition for certification, 130 N.J. 19, 611 A.2d 657 (1992).

Before us the State asserts, for the first time, that a court's discretion in sentencing a defendant whose probationary term has been revoked because of a subsequent conviction is governed by N.J.S.A. 2C:44-5f(3). The State contends that that statute requires that with respect to a defendant who commits a crime while on probation, any imprisonment following revocation of probation must be consecutive to the sentence received for the offense that formed the basis of the probation violation. The statute provides:

f. Suspension of sentence or probation and imprisonment; multiple terms of suspension and probation. When a defendant is sentenced for more than one offense or a defendant already under sentence is sentenced for another offense committed prior to the former sentence:

* * * * * *

(3) When a sentence of imprisonment in excess of 1 year is imposed, the service of such sentence shall satisfy a * * * sentence to probation, unless the * * * probation has been violated in which case any imprisonment for the violation shall run consecutively * * *.

Defendant argues that provisions of N.J.S.A. 2C:44-5 other than subsection f(3) also apply to the sentencing decision presented by this appeal. More specifically, defendant contends that a sentencing court is vested with the discretion to impose either a concurrent or consecutive term following revocation of probation under N.J.S.A. 2C:44-5a, which provides:

a. Sentences of imprisonment for more than one offense. When multiple sentences of imprisonment are imposed on a defendant for more than one offense, including an...