               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                 SUPERIOR COURT OF NEW JERSEY
                                 APPELLATE DIVISION
                                 DOCKET NO. A-5777-17T3

STATE OF NEW JERSEY,

     Plaintiff-Respondent,        APPROVED FOR PUBLICATION

v.                                        January 9, 2020

                                      APPELLATE DIVISION
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).

      The opinion of the court was delivered by

KOBLITZ, P.J.A.D.

      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.

      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

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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,

defendant appeared before a Middlesex County judge and pled guilty to

violating the conditions of his special probation. His probation was extended an


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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 Robert J. 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.

      Defendant raises the following issue on appeal:


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            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, 238 N.J. 135, 143 (2019); R. 3:21-

10(b)(5).

      Our Supreme Court emphasized:

            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, 530 U.S. at 477-78).]

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 reasonable doubt." Ibid.

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(alteration in original) (quoting Ring v. Arizona, 536 U.S. 584, 602 (2002)). 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 in committing the crime acted 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 (quoting N.J.S.A. 2C:44-

3(e), amended by N.J.S.A. 2C:16:1(a)(1)).         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.




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      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

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 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. 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.


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       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, 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.

       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


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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.

      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

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                                         9
[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

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.


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      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, 114 N.J. 169, 176-77

(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


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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,

432-33 (3d Cir. 1992). 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: whether the imposition of the maximum statutory

custodial sentence plus special probation would be constitutionally defective.

      Affirmed.




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