                                NOT FOR PUBLICATION WITHOUT THE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-4647-17T2

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

JEFFREY LOPES MOREIRA,
a/k/a JEFF MOREIRA,

     Defendant-Appellant.
______________________________

                    Submitted June 5, 2019 – Decided June 20, 2019

                    Before Judges Alvarez and Mawla.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Warren County, Accusation Nos. 13-04-
                    0146, 13-10-0488, and 13-10-0489.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Molly O'Donnell Meng, Assistant Deputy
                    Public Defender, of counsel and on the brief).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Adam David Klein, Deputy Attorney
                    General, of counsel and on the brief).

PER CURIAM
      Defendant Jeffrey L. Moreira appeals from a four-year sentence he

received on May 22, 2018, for violating the terms of his drug court probation.

We affirm.

      We take the following facts from the record. In April 2013, defendant

was charged under Accusation Number 13-04-0146 (Acc. No. 0146) with third-

degree distribution of heroin, N.J.S.A. 2C:35-5(a)(1) and (b)(3), and pled guilty

to the charge in May 2013. He was sentenced to a two-year probationary term

conditioned upon ninety days in the county jail, with leave to serve his jail

sentence in the County Labor Assistance Program.

      In October 2013, defendant was charged under Accusation Number 13-

10-0488 (Acc. No. 0488) with fourth-degree unlawful taking of a means of

conveyance, N.J.S.A. 2C:20-10(b), and third-degree theft by unlawful taking,

N.J.S.A. 2C:20-3(a). He was also charged under Accusation Number 13-10-

0489 (Acc. No. 0489) with third-degree possession of heroin, N.J.S.A. 2C:35-

10(a)(1). He pled guilty to both accusations pursuant to a plea agreement.

      In March 2014, defendant was sentenced to: (1) two years of probation for

each of the charges of Acc. No. 0488, each conditioned upon 364 days in the

county jail; and (2) two years of probation for the single charge of Acc. No.

0489, conditioned upon 364 days in the county jail. These sentences were to


                                                                         A-4647-17T2
                                       2
run concurrently and defendant was allowed to serve up to 180 days of the jail

sentence in a long-term in-patient addiction rehabilitation program after the

program was completed.

      Defendant violated the terms of his probation. He failed to: report to his

probation officer at least ten times, cooperate with the required treatment and

counseling, pay financial obligations, and notify probation of his employment

status. Therefore, in May 2016, he pled guilty to a violation of probation (VOP)

under all three accusation numbers. Defendant admitted he was sanctioned

twelve times in drug court, waived his right to a VOP hearing, and pled guilty

to the VOPs under each accusation. The judge terminated defendant's terms of

probation and sentenced him to concurrent five-year terms in drug court under

each accusation number.

      Following his guilty pleas, defendant was resentenced in December 2017.

The judge considered defendant's drug court sanctions, VOPs, and positive drug

screens since his admission to drug court. The judge noted the third-degree

counts each carried a five-year prison sentence and the fourth-degree count an

eighteen-month sentence. The judge stated he "had hoped . . . [defendant] would

take it upon [himself] to go into [Veterans Assistance], get evaluated and get

treatment[,]" but he failed to do so. The judge stated that, as a last resort, he


                                                                         A-4647-17T2
                                       3
would order defendant into a long-term in-patient treatment program, and also

ordered him to continue with the terms of drug court probation on all three

accusations, including all fines and penalties.

      Defendant was discharged from the in-patient program after less than one

month because he had an altercation and threatened to kill another patient. At

his subsequent VOP hearing, the judge considered testimony from defendant's

probation officer who stated defendant caused the disruption, which prompted

his discharge. The in-patient program discharge note admitted into evidence

corroborated the incident and the probation officer's testimony. The judge

concluded defendant had violated his probation and scheduled his sentencing.

      The judge made the following findings at sentencing:

                   [T]his has been probably one of the most
            difficult decisions that the [c]ourt has to make because
            of several reasons. One, you're a veteran and I have
            enormous respect for veterans. Number two, you're a
            [d]rug [c]ourt participant and as [the prosecutor] said in
            her colloquy, we bent over backwards to allow you to
            stay in [d]rug [c]ourt on all of those different
            sanctionable events on the violations of probation.

                  And while you have been polite, you've never
            raised your voice. You've always been nice for lack of
            a better term when you appeared before me. You
            haven't always been honest. That's for certain. And
            you haven't always done the right thing.



                                                                         A-4647-17T2
                                        4
       We've basically run out of options. There isn't
any treatment recommendation that hasn't been offered
to you that we could offer again that I could even hope
that you would comply with. I also would say that
because of the number of chances that you've been
given, probation is certainly not warranted any longer
in the case.

       And you do have a lot of jail credit. But there has
to be some consequences for your actions. Therefore, I
am going to sentence you to four years New Jersey
State prison, concurrent on all charges. Probation will
be terminated without improvement. . . .

       . . . As far as the aggravating and mitigating
factors, aggravating factors [three] and [nine];
mitigating factor [ten] were found on [Acc. No. 0146].
I continue to find aggravating factors [three] and [nine]
as they relate to the underlying offense.

      . . . Aggravating factors [three] and [nine] were
also found in [Acc. No. 0488]. Mitigating factors
[four], [six] and [ten] were found. I no longer find
mitigating factors [six] and [ten]. I do find mitigating
factor [four] continues to exist. And on [Acc. No.
0489], aggravating factors [three] and [nine] continue
to exist. [I find] [m]itigating factor [four]. But I no
longer find mitigating factor [ten].

      ....

       . . . [Nine] months, [and twenty-eight] days[] . . .
[o]n a four year sentence the minimum time you would
have to spend in state prison to be eligible for parole.
You obviously have more jail credit than that. But
that's a function of [p]arole, not this [c]ourt. And that's
an estimated time that you have to spend in custody.


                                                              A-4647-17T2
                            5
       A judgment of conviction entered terminating probation without

improvement, and imposing a four-year prison sentence as to all third-degree

counts and an eighteen-month prison sentence for the sole fourth-degree count,

all to run concurrently. Under Acc. No. 0146, the judge applied 350 days of jail

credit, 230 days of Rosado1 credit, and 120 days of prior-service credit to the

sentence imposed. On Acc. No. 0488, the judge applied 331 days of jail credit,

241 days of Rosado credit, and 120 days of prior-service credit to the sentence

imposed. As to Acc. No. 0489, the judge applied 338 days of jail credit, 234

days of Rosado credit, and 120 days of prior-service credit to the sentence

imposed.

                                        I.

       Defendant raises the following point on appeal:

             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.

       Our review of a sentencing decision is limited. State v. Miller, 205 N.J.

109, 127 (2011). We do "not substitute [our] judgment for that of the trial court."



1
    State v. Rosado, 131 N.J. 423 (1993).
                                                                           A-4647-17T2
                                        6
State v. Burton, 309 N.J. Super. 280, 290 (App. Div. 1998) (citing State v. Roth,

95 N.J. 334, 365 (1984)). Instead, we "assess the aggravating and mitigating

factors to determine whether they 'were based upon competent credible evidence

in the record.'" State v. Bieniek, 200 N.J. 601, 608 (2010) (quoting Roth, 95

N.J. at 364-65). We will "modify sentences when the application of the facts to

the law is such a clear error of judgment that it shocks the judicial conscience."

Roth, 95 N.J. at 364 (citing State v. Whitaker, 79 N.J. 503, 512 (1979)).

                                       II.

      Defendant argues the imposition of a four-year sentence for a VOP, in

addition to the four-plus years of probation he served, is unconstitutional and in

violation of the Sixth Amendment pursuant to Apprendi v. New Jersey, 530 U.S.

466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). Defendant also

claims he did not receive custody credit for the time spent on probation and in

drug court.

      "With respect to a defendant who violates a probationary condition, the

initial question is whether the violation justifies revocation of probat ion. Some

violations are more serious than others." State v. DiAngelo, 434 N.J. Super.

443, 455 (App. Div. 2014) (quoting State v. Baylass, 114 N.J. 169, 175 (1989)).

              Once a court determines "the defendant has inexcusably
              failed to comply with a substantial requirement

                                                                            A-4647-17T2
                                        7
            imposed as a condition of the order or if he has been
            convicted of another offense, [the court] may revoke
            the suspension or probation and sentence or resentence
            the defendant," N.J.S.A. 2C:45–3(a)(4), imposing "any
            sentence that might have been imposed originally for
            the offense of which he was convicted." N.J.S.A.
            2C:45–3(b).

            [Ibid. (alteration in original).]

      The Comprehensive Drug Reform Act of 1987, N.J.S.A. 2C:35-1 to -31,

provides courts with alternatives to traditional disposition, such as special

probation, i.e., drug court. Similar to the court's power to impose jail time

following the revocation of regular probation, "[i]f the court permanently

revokes the person's special probation pursuant to this subsection, the court shall

impose any sentence that might have been imposed, or that would have been

required to be imposed, originally for the offense for which the person was

convicted or adjudicated delinquent." N.J.S.A. 2C:35-14(f)(4).

      "Special probation is designed to divert otherwise prison-bound offenders

into an intensive and highly specialized form of probation designed to 'address

in a new and innovative way the problem of drug-dependent offenders caught in

a never-ending cycle of involvement in the criminal justice system.'" State v.

Bishop, 429 N.J. Super. 533, 540 (App. Div. 2013) (quoting State v. Meyer, 192

N.J. 421, 434-35 (2007)).


                                                                           A-4647-17T2
                                         8
            [S]tated in very broad terms, offenders sentenced to
            regular probation are not necessarily prison bound,
            based upon the nature and seriousness of their crimes
            and the general sentencing provisions of the Code. On
            the other hand, offenders sentenced to special probation
            are prison bound because their offenses, deemed more
            serious in the Code, carry a mandatory or presumptive
            term of imprisonment. Their eligibility for this form of
            non-prison sentence is not determined by weighing
            aggravating and mitigating factors as is the case with
            regular probation, but by reference to the enumerated
            statutory requirements listed in N.J.S.A. 2C:35–14.

            [Id., 429 N.J. Super. at 541 (emphasis added) (citing
            State v. Clarke, 203 N.J. 166, 175 (2010)).]

      Furthermore, "[t]he sentence imposed after revocation of probation should

be viewed as focusing on the original offense rather than on the violation of

probation as a separate offense." In re State ex rel. C.V., 201 N.J. 281, 297

(2010) (quoting State v. Ryan, 86 N.J. 1, 8 (1981)). "Imposing the maximum

sentence for the original offense after revocation of probation without grand jury

indictment or trial by jury is not unconstitutional, since the new sentence is only

a sanction for defendant's original offense for which he had been properly tried."

Ryan, 86 N.J. at 8 (emphasis added) (citation omitted).

      In deciding a sentence for a probation violation the "court should consider

the aggravating factors found to exist at the original hearing and the mitigating

factors as affected by the probation violations." State v. Baylass, 114 N.J. 169,


                                                                           A-4647-17T2
                                        9
178 (1989). While it may "be a rare case in which the balance of the original

aggravating factors and surviving mitigating factors weigh in favor of a term of

imprisonment greater than the presumptive sentence or of a period of parole

ineligibility[,]" such a sentence is permissible where the aggravating factors

outweigh the mitigating. Ibid.

      Here, there was ample evidence to support the sentence imposed. The

charge at issue was defendant's possession of heroin under Acc. No. 0489.

N.J.S.A. 2C:43-6(a)(3) states "[i]n the case of a crime of the third degree, for a

specific term of years which shall be fixed by the court and shall be between

three years and five years[.]" The four-year sentence given after defendant's

probation was revoked was less than the five-year maximum and within the

range of the original sentence, and thus permitted by N.J.S.A. 2C:35-14.

      The trial judge properly considered the aggravating factors assigned

during the original disposition of Acc. No. 0489, finding "aggravating factors

[three] and [nine] continue[d] to exist" from the original sentencin g. The judge

also continued to find mitigating factor four, but did not continue to find

mitigating factor ten after the VOP was committed. Thus, the judge adhered to

In re State ex rel. C.V. by considering the aggravating factors as to the original




                                                                          A-4647-17T2
                                       10
charge and the mitigating factors as to the VOP itself, and violated neither

Apprendi2 nor Blakely. 3

      A presumption of imprisonment existed when defendant was sentenced to

drug court after he failed to comply with his previous probation terms and

committed multiple VOPs. Bishop, 429 N.J. Super. at 541. The judge noted the

multiple opportunities given to defendant, that the court had "run out of

[treatment] options[,]" and correctly concluded probation was no longer

warranted. Thus, probation followed by incarceration was not an extended

sentence and does not shock the judicial conscience.

      Finally, we reject defendant's argument regarding custody credit. The

Supreme Court has noted:

                   [T]he thrust of . . . [Rule 3:21-8] is to restrict
            credit to "custodial" confinements, either in jail or in a
            state hospital. Ordinarily, a defendant's confinement is
            custodial if it is imposed by a court, see State v. Lee,
            60 N.J. 53, 58 (1972), and involuntary in the sense that
            a defendant is not "at liberty by an exercise of his own
            will to choose to leave that facility." State v. Smeen,
            147 N.J. Super. 229, 233 (App. Div. 1977). Thus, in

2
   Holding any fact other than a prior conviction which increases a penalty
beyond the statutory maximum "must be submitted to a jury, and proved beyond
a reasonable doubt." Apprendi, 530 U.S. at 490.
3
  Reversing the imposition of a ninety-month sentence where a defendant was
subject to a fifty-three-month sentence because the sentencing court considered
facts not in evidence or found by a jury. Blakely, 542 U.S. at 303-04.
                                                                         A-4647-17T2
                                       11
            State v. Reyes, 207 N.J. Super. 126 (App. Div. 1986),
            the Appellate Division denied credit to [a] defendant
            for time spent in a residential drug treatment program
            as a condition of probation. The court concluded that
            "[a]ttendance at such a program is not the equivalent of
            'custody' so long as there are no physical restraints and
            a participant retains the option to leave without
            committing an additional crime." Id. at 144.

            [State v. Towey, 114 N.J. 69, 85–86 (1989) (last
            alteration in original) (emphasis added).]

      Here, the judge credited defendant with the appropriate amount of jail time

credit, Rosado credit, and gap-time credit under each accusation. Pursuant to

Towey, the time defendant spent on special probation at the in-patient program

did not qualify as custody credit because it was a condition of his probation, not

a form of custody.

      Affirmed.




                                                                          A-4647-17T2
                                       12
