Drug Court Resentencings and the Sixth Amendment (Part 1)

On February 6, 2020, a three-judge appellate panel decided the Middlesex county case of State v. Walek Dunlap. The principle issue under N.J.S.A 2C:35-14 was whether the sentencing court violated the holding in Apprendi when it found certain facts in aggravation of the defendant’s sentence for drug court violations.

Judge Susswein wrote for the panel and held in relevant part: This brings us to the first flaw in defendant’s constitutional argument. In this instance, there was no judicial fact finding of the type prohibited by Apprendi. Defendant not only admitted his guilt to the underlying substantive crime, second-degree robbery, but also admitted to the facts constituting the violations of special probation that resulted in revocation and re-sentencing. But even were we to assume that judicial fact finding occurred, we still reject defendant’s argument as to how Apprendi principles extend to resentencing following revocation of special probation.

We do not doubt that constitutional limitations on a court’s authority to impose an original sentence also apply to a court’s authority to impose a new sentence following revocation of special probation. Cf. Haymond, 588 U.S. __, 139 S. Ct. 2369 (plurality opinion) (applying Apprendi principles to imposition of a new custodial sentence following violation of supervised release under federal law). The issue presented by defendant’s constitutional argument, therefore, is not whether Apprendi principles apply to post-revocation resentencing proceedings, but rather how the time spent on special probation prior to revocation should be treated for purposes of Apprendi analysis.

The fundament of defendant’s constitutional argument is that when determining whether the statutory maximum sentence prescribed by N.J.S.A. 2C:43-6(a)(2) has been exceeded we must combine the term of imprisonment imposed at re-sentencing with the period of time defendant has already served on non-custodial special probation. In essence, defendant contends the Sixth Amendment requires courts to treat imprisonment and non-custodial probation as equal and indistinguishable for purposes of Apprendi analysis.

Arguments similar to those made by the defense here were rejected by a different appellate panel in the case of State v. Thomas Hawkins. That Middlesex County case was decided on June 21, 2019.