NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5777-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
THOMAS A. HAWKINS,
Defendant-Appellant.
_______________________
Argued May 15, 2019 – Decided June 21, 2019
Before Judges Koblitz, Currier and Mayer.
On appeal from Superior Court of New Jersey, Law
Division, Middlesex County and Hudson County,
Indictment Nos. 12-02-0380 and 11-08-1383.
Whitney Faith Flanagan, Assistant Deputy Public
Defender, argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney; Molly O'Donnell
Meng, Assistant Deputy Public Defender, of counsel
and on the brief).
Alexander R. Shalom argued the cause for amicus
curiae American Civil Liberties Union of New Jersey
Foundation (ACLU-NJ) (Alexander R. Shalom,
attorney; Alexander R. Shalom, Edward Leon Barocas,
and Jeanne M. LoCicero, on the briefs).
Adam David Klein, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Adam David Klein, of counsel and
on the brief).
PER CURIAM
Defendant Thomas Hawkins appeals from a sentence of eight years in
prison with forty months of parole ineligibility for a second-degree crime after
repeatedly violating special Drug Court probation, N.J.S.A. 2C:35-14(a). He
argues that the imposition of the eight-year custodial sentence after serving
almost five years of special probation was an unconstitutional judicial extension
of the statutory ten-year maximum custodial sentence, contrary to Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000). We reject this argument and affirm.
Defendant pled guilty in Hudson County to second-degree possession of
phencyclidine (PCP) with the intent to distribute, N.J.S.A. 2C:35-5(b)(7), and
third-degree possession of PCP with the intent to distribute within 1000 feet of
a school, N.J.S.A. 2C:35-7, from two separate indictments. Both crimes
occurred in Jersey City, Hudson County. Pursuant to N.J.S.A. 2C:43-6(f),
defendant was eligible for a mandatory extended term based on a prior drug
conviction.
A-5777-17T3
2
The parties agreed that if defendant was found ineligible for Drug Court,
he would be allowed to retract his guilty plea. They also agreed that if he
proceeded with the guilty plea without Drug Court, the State would seek an
eight-year term of imprisonment with forty-eight months of parole ineligibility.
The judge explained to defendant that he would be reevaluated for Drug Court
and, if eligible, would have to accept the recommended treatment modality or
face a prison term.
At sentencing in April 2012, the judge told defendant that his maximum
prison exposure if he violated probation would be ten years in prison with a
mandatory minimum of five years. The judge then found aggravating factors
three, the risk defendant will commit another offense; six, the extent of
defendant's prior criminal record; and nine, the need to deter defendant and
others. N.J.S.A. 2C:44-1(a)(3), (6), (9). She also found mitigating factor ten,
that defendant was particularly likely to respond to probationary treatment.
N.J.S.A. 2C:44-1(b)(10). The judge determined that the aggravating and
mitigating factors were "equal" and sentenced defendant to four years of Drug
Court, articulating the usual and special conditions of probation.
The special Drug Court probation supervision was transferred to
Middlesex County, where defendant lived. In May 2016, four years later,
A-5777-17T3
3
defendant appeared before a Middlesex County judge and pled guilty to
violating the conditions of his special probation. His probation was extended an
additional year. The judge warned defendant that if he violated the terms of
probation again, he would be incarcerated.
In March 2017, approximately one month before the end of his extended
probation, after a contested evidentiary hearing, the same Middlesex County
judge found that defendant had violated special probation by using PCP
repeatedly and otherwise not fully cooperating with Drug Court. The judge
terminated defendant's probation and sentenced him to eight years in prison with
a four-year period of parole ineligibility.
After defendant appealed his sentence, we remanded the matter and
directed "the trial court to provide a detailed statement of reasons for imposing
the sentence under review, and to amend the judgment of conviction
accordingly." We added: "With the consent of the State, the defendant shall
also be afforded the opportunity to speak at resentencing."
Judge Jones, who was not the original violation of probation (VOP)
sentencing judge, resentenced defendant to eight years in prison with a reduced,
forty-month period of parole ineligibility. With the ACLU-NJ appearing as
amicus curiae, the judge denied defendant's motion to correct an illegal sentence.
A-5777-17T3
4
Defendant raises the following issue on appeal:
POINT I: NEW JERSEY'S PROBATION
REVOCATION STATUTE ALLOWS A JUDGE TO
ENGAGE IN FACT-FINDING THAT RESULTS IN A
SENTENCE ABOVE THE STATUTORY MAXIMUM
AND SO VIOLATES THE SIXTH AMENDMENT OF
THE UNITED STATES CONSTITUTION.
We review a trial court's legal or statutory interpretation de novo. State
v. Grate, 220 N.J. 317, 329 (2015). Similarly, we review a post-conviction relief
court's legal conclusions de novo. State v. Nash, 212 N.J. 518, 540-41 (2013).
One ground for post-conviction relief is an illegal sentence. R. 3:22-2(c). An
illegal sentence is one that is unconstitutional or not authorized by the Code of
Criminal Justice. See State v. Hyland, ___ N.J. ___, ___ (2019) (slip op. at 9-
10); R. 3:21-10(b)(5).
"The Sixth Amendment jury trial guarantee and the Fourteenth
Amendment Due Process Clause confer to every criminal defendant not only the
right to have 'the truth of every accusation' proven to a jury of his 'equals,' but
also the 'right to have the jury verdict based on proof beyond a reasonable
doubt.'" State v. Natale, 184 N.J. 458, 473 (2005) (quoting Apprendi v. New
Jersey, 530 U.S. 466, 477-78 (2000)). Therefore, "[i]f a State makes an increase
in a defendant's authorized punishment contingent on the finding of a fact, that
fact—no matter how the State labels it—must be found by a jury beyond a
A-5777-17T3
5
reasonable doubt." Ibid. (quoting Ring v. Arizona, 536 U.S. 584, 602 (2002))
(alteration in original). In determining what facts must be found by a jury, "the
relevant inquiry is one not of form, but of effect—does the required finding
expose the defendant to a greater punishment than that authorized by the jury's
guilty verdict?" Ibid. (quoting Apprendi, 530 U.S. at 494).
In Apprendi, the United States Supreme Court held that "[o]ther than the
fact of a prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt." 530 U.S. at 490. The Court found that New Jersey's
hate crime statute, which authorized a sentencing court to impose an "extended
term" sentence if it found, by a preponderance of the evidence, that the defendant
committed the crime "with a purpose to intimidate an individual or group of
individuals," violated a defendant's Fourteenth Amendment due process rights.
Id. at 468-69, 491-93. Sentencing courts still have discretion, however, to
"tak[e] into consideration various factors relating both to offense and offender
[when] imposing a judgment within the range prescribed by statute." Id. at 481.
Four years later, the United States Supreme Court refined its holding in
Apprendi, and held "that the 'statutory maximum' . . . is the maximum sentence
a judge may impose solely on the basis of the facts reflected in the jury verdict
A-5777-17T3
6
or admitted by the defendant." Blakely v. Washington, 542 U.S. 296, 303
(2004). Our Supreme Court held that "without reference to presumptive terms,
judges will sentence defendants within the statutory range after identifying and
weighing the applicable mitigating and aggravating factors." Natale, 184 N.J.
at 466. In a companion case, the Court held that procedures under the code that
allowed a trial court "to sentence a defendant to a period of life imprisonment
for murder, to a period of parole disqualification . . . and to consecutive
sentences for multiple convictions [did] not run counter to the Sixth
Amendment." State v. Abdullah, 184 N.J. 497, 499 (2005).
In 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. State v. Thomas, 188 N.J.
137, 152 (2006). 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." Id. at 151-52.
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
A-5777-17T3
7
ineligibility for second-degree possession with intent to distribute CDS 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, 454 N.J. Super. 603, 606, 611
(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." Id. at
613 (citing N.J.S.A. 2C:43-7).
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
A-5777-17T3
8
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.
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." N.J.S.A. 2C:35-14(f)(4). 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, 235 N.J. 420 (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, 570 U.S. 99 (2013)] or the Sixth Amendment." Id. at
425. The Court concluded that under Alleyne, trial courts are permitted, "in the
exercise of their discretion, to take into consideration various factors relating
A-5777-17T3
9
both to the offense and offender 'in imposing a judgment within the range
prescribed by statute.'" Ibid. (quoting Alleyne, 570 U.S at 116). 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 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
A-5777-17T3
10
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." Under State v. Baylass, 114 N.J. 169, 176-77 (1989), 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.
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. "[P]robation time cannot be converted into prison
time with any mathematical precision." United States v. Gordon, 961 F.2d 426,
A-5777-17T3
11
432-33 (3d Cir. 1992), cited with approval in United States v. Granderson, 511
U.S. 39, 47 (1994). See also State v. Evers, 368 N.J. Super. 159, 173 (App. Div.
2004) (finding "[p]robation 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, 192 N.J. 421, 434-35 (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, 132 N.J. 234, 240
(1993). Thus, we affirm without ruling directly on the issue raised by defendant
and supported by amicus.
Affirmed.
A-5777-17T3
12
STATE OF NEW JERSEY VS. THOMAS HAWKINS (12-02-0380, MIDDLESEX COUNTY, AND 11-08-1383, HUDSON COUNTY, AND STATEWIDE)
Combined Opinion