The Court continued: The statutory maximum for a sentence, however, includes the statutes that allow a special probation sentence followed by a revocation of that special probation. 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.
Judge Jones adhered to the statutory requirements of the applicable probation revocation statute, N.J.S.A. 2C:35-14(f)(4), which directs the court to “impose any sentence that might have been imposed, or that would have been required to be imposed, originally for the offense for which [defendant] was convicted.” The judge also properly applied the same aggravating factors as the original sentencing judge, and determined that mitigating factor ten, amenability to probation, no longer existed. See State v. Baylass (1989).
Because we do not accept that a year of probation is equal to a year of incarceration, or that eight years in prison plus five years of probation is greater than ten years in prison, we do not accept the premise that defendant received a sentence greater than the maximum permissible for a second-degree crime when probation is not imposed. “Probation time cannot be converted into prison time with any mathematical precision.” United States v. Gordon, 961 F.2d 426, 432-33 (3d Cir. 1992). See also State v. Evers (App. Div. 2004) (finding “probation is not the same as incarceration,” and therefore the “defendant was not entitled to credit for time served on probation because his probation was not as restrictive and confining as a custodial sentence”). Moreover, special Drug Court probation is an extraordinary rehabilitative opportunity for a defendant who would otherwise face a presumption of incarceration. See State v. Meyer, (2007).
We should not decide constitutional issues unless it is necessary to resolve the case before us. O’Keefe v. Passaic Valley Water Comm’n (1993). Thus, we affirm without ruling directly on the issue raised by defendant and supported by amicus: whether the imposition of the maximum statutory custodial sentence plus special probation would be constitutionally defective.
It is very rare to see a defendant sentenced to more than the middle term of years for a violation of probation. The middle term here for the second degree offense is seven years and the defendant was sentenced to eight years with a period of parole ineligibility. Drug court probation is unique, however, because the alternate prison sentence is announced at the original sentencing date. Therefore, it can be argued that a sentence above the middle term is presumptively reasonable because it was greed to by the defendant.
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