The Appellate Division continued: Defendant points out that the probation revocation statute states that a defendant shall receive credit for any time served in custody pursuant to N.J.S.A. 2C:45-1 or while awaiting placement in a treatment facility . . . and for each day during which the person satisfactorily complied with the terms and conditions of special probation while committed . . . to a residential treatment facility. Because this statute does not provide incarceration credit for the time spent on special probation outside a residential treatment facility, defendant claims he is required to serve more than the maximum allowable sentence.
Defendant distinguishes his sentence from that discussed in a recent Supreme Court decision, State v. Kiriakakis (2018). In Kiriakakis, the Court held that a mandatory minimum period of parole ineligibility “fell within the range authorized by the jury’s verdict and therefore did not violate Alleyne v. United States, (2013)] or the Sixth Amendment.” The Court concluded that under Alleyne, trial courts are permitted, “in the exercise of their discretion, to take into consideration various factors relating both to the offense and offender ‘in imposing a judgment within the range prescribed by statute.’ Defendant maintains that, unlike defendant Kiriakakis, his sentence was not within the statutory range authorized for a second-degree offense, because on the date of his original sentence, the trial court would not have been allowed to sentence him to incarceration for thirteen years, the sum of five years of probation and eight years in prison. Defendant asserts: “That increased penalty is made possible only by later judicial fact-finding.” Amicus ACLU-NJ also argues that defendant’s sentence violated the Sixth Amendment because the judge relied upon facts not found by a jury or admitted by defendant to increase defendant’s sentence beyond the statutory maximum, in violation of Apprendi and Blakely.
If we accept the defense argument, it follows that a VOP judge may either conduct a jury trial or credit a defendant with the years served on probation against the possible maximum prison term. We could then either reduce defendant’s custodial sentence to five years in prison, or remand for a VOP jury trial.
The State would likely argue that conducting a jury trial for a violation of probation would give the defendant the proverbial second bite at the apple. To get probation, a defendant would have entered a negotiated plea or already had a jury trial. A jury trial would also be inconsistent with the caselaw that requires a violation of probation to be proven by a preponderance of the evidence as opposed to proof beyond a reasonable doubt.