On June 21, 2019 a three-judge appellate panel decided the Middlesex County case of State v. Thomas Hawkins. The principal issue under N.J.S.A. 2C:35-14 involved the propriety of an eight year prison sentence for drug court violations where the defendant already completed almost five years of special probation.
Presiding Judge Koblitz held in relevant part: In State v. Thomas, our Supreme Court held that the “imposition of a mandatory enhanced sentence under N.J.S.A. 2C:43-6(f) “based on the “sentencing court’s finding of the fact of defendant’s prior convictions,” did not violate the defendant’s Sixth Amendment right to a jury trial. The Court determined that “N.J.S.A. 2C:43-6(f) operates as a sentence enhancer on the basis of a judicial fact-finding that is authorized under Apprendi and Blakely, to wit, the finding of prior convictions.”
Here, defendant argues that his sentence violates the principles articulated in Apprendi and its progeny and is therefore unconstitutional. Defendant was sentenced to eight years in prison with a forty-month period of parole ineligibility for second-degree possession with intent to distribute PCP after violating the terms of his special Drug Court probation for a second time. Defendant argues that his total sentence of approximately thirteen years of combined prison and probation is unconstitutional because it exceeds the statutory maximum sentence of a ten-year period of incarceration, and was imposed after judicial, rather than jury, fact-finding.
In a recent case, we determined that probation was not confinement for purposes of determining, under the persistent offender statute N.J.S.A. 2C:44-3(a), whether the defendant had been released from confinement within ten years preceding the instant offense. State v. Clarity (App. Div. 2018). We also found that the later consequences of a VOP are part of the corrections process, “not a separate prosecution and conviction.”
Defendant argues that the applicable probation revocation statute, N.J.S.A. 2C:35-14(f), is unconstitutional because it allows the VOP court, after non-jury fact-findings, to sentence a defendant to the maximum custodial sentence in addition to the time spent on probation. Here, the statutory maximum without an extended term was ten years in prison. After the VOP, defendant received a sentence of eight years in prison plus almost five years of probation. Defendant argues that absent a measuring device to compare the severity of a year of probation to a year in prison, we should value them as equally severe.
The Court could point to our code’s range of sentences for different degrees of offenses as a measuring device that confirms that prison is more severe than probation. Probation is a common disposition for third and fourth degree offenses. Probation can only be imposed in lieu of prison for the more sever first and second degree offenses in the rarest of circumstances.
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