Judge Susswein continued in relevant part: It is clear from this provision that the Legislature did not intend to award credit for the entirety of the time spent on special probation. As we have already noted, under Apprendi, it is the province of a legislature by statute to determine the maximum sentence that may be imposed based on a conviction. In Hawkins, we explained that, the statutory scheme delineates that the maximum custodial sentence for a second-degree crime is ten years in prison, unless a defendant applies for and is accepted into special Drug Court probation, in which case he may receive a sentence of five years of Drug Court with the risk of spending ten years in prison if he violates that special probation, with credit given for time spent in jail or inpatient treatment. [__ N.J. Super. at __ (slip op. at 11).] Applying that understanding of the statutory framework to the case before us, the trial court resentenced defendant on his second-degree robbery conviction to the maximum prison term authorized by N.J.S.A. 2C:43-6(a)(2) but not more than that maximum.
In reaching this conclusion, we do not mean to suggest that a probationary sentence is not a form of punishment. The point, rather, is that non-custodial punishment is substantively different from incarceration. We read Apprendi and its progeny to focus solely on the latter form of punishment, not the former.
We therefore hold that when determining whether the “prescribed statutory maximum” has been exceeded for purposes of Apprendi analysis, we look to the length of time the defendant is incarcerated, not to the length of time he or she serves on non-custodial probation. We note in this regard that the United States Supreme Court has never held that non-custodial sentences raise Apprendi concerns. In the absence of explicit instruction from higher courts, and especially considering the significant consequences were we to accept defendant’s extrapolation of Apprendi, see supra note 5, we decline to untether the Apprendi doctrine from its historical moorings and expand it to apply to non-custodial forms of punishment.
This holding highlights a common belief among defendants that drug court is “a set up.” This is because the alternate prison sentences are often significantly greater than a sentence that could be traditionally negotiated. There is legislation pending in New Jersey to curtail the length of alternate sentences and to allow for more drug court violations before prison is imposed.