Opinion
DOCKET NO. A-1643-14T5
05-19-2015
STATE OF NEW JERSEY EX REL. S.C., A JUVENILE.
Al Glimis, Assistant Deputy Public Defender, argued the cause for appellant S.C. (Joseph E. Krakora, Public Defender, attorney). Derrick Diaz, Assistant Prosecutor, argued the cause for respondent State of New Jersey (James P. McClain, Atlantic County Prosecutor, attorney).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ashrafi and Kennedy. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, FJ-01-37-15. Al Glimis, Assistant Deputy Public Defender, argued the cause for appellant S.C. (Joseph E. Krakora, Public Defender, attorney). Derrick Diaz, Assistant Prosecutor, argued the cause for respondent State of New Jersey (James P. McClain, Atlantic County Prosecutor, attorney). PER CURIAM
In 2012, S.C., then nineteen years-old, was charged in the Family Part with eight acts of delinquency he was alleged to have committed in 2007, when he was fourteen years-old. The charges, which included offenses that would have constituted first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), and second-degree sexual assault, N.J.S.A. 2C:14-2(b), if committed by an adult, were based on allegations that he had sexual relations with two cousins, then eight and seven years old.
He pled guilty to two acts of delinquency that would have constituted second-degree sexual assault if committed by an adult, and the Family Part judge ordered a pre-disposition report (PDR) and referred S.C. for a psychological evaluation prior to entering an order for disposition.
The psychological evaluation reported that S.C. denied he sexually molested his cousins, and explained that he pled guilty to quell "fighting" within the family. The psychologist recommended that S.C. undergo "sex offender specific therapy to help him acknowledge and take responsibility for his actions." The PDR stated that S.C. had never been adjudicated delinquent in the past, and had completed the eleventh grade.
At the time of sentencing, the Family Part judge stated he reviewed the PDR and the psychological report, but never addressed S.C.'s denial of the predicate acts, never asked for an allocution from S.C., and imposed a period of eighteen months of probation with various conditions, including a requirement that S.C. attend sex-offender counseling. The judge did not analyze or address the disposition factors under N.J.S.A. 2A:4A-43(a); never considered the aggravating and mitigating factors under N.J.S.A. 2A:4A-44(a); and offered no explanation for the sentence. We infer the judge believed he was not obligated to state the reasons for the disposition, or to undertake any analysis of any statutory factors, because S.C.'s counsel requested probation, and the State concurred.
On July 1, 2014, S.C. was formally charged with violating his probation because 1) he failed to attend his sex-offender treatment "since March 2014;" 2) on March 14, 2014, S.C. pled guilty to possession of a controlled dangerous substance (CDS), and was sentenced to a period of adult probation; and 3) other CDS charges against S.C. were pending before the grand jury, arising from an incident in June 2014.
On September 18, 2014, S.C. pled guilty to a violation of probation based upon his earlier plea to possessing a CDS on March 14, 2014. The plea form acknowledged that the State would recommend that S.C. be remanded to the "TSB." S.C. explicitly denied that he had failed to attend sex-offender treatment or that he was guilty on the new CDS charges. The Family Part judge accepted the plea and ordered an updated PDR.
Training School for Boys.
The judge who had sentenced S.C. in 2013 had been reassigned to another trial division at the time of the VOP. Consequently, the VOP proceedings were handled by another judge within the Family Part.
The disposition hearing was held on November 6, 2014, at which time S.C.'s attorney asked the judge to continue probation. The judge asked S.C. for an allocution, and S.C. explained to the court that he was "try[ing] to do the best [he] could" and that his inconsistency in attending treatment was due to difficulties he faced locating a program, and arranging to get there. He added he had recently started attending a program located in the municipality where he lived, and that the therapist had recommended consultations "once or twice each month."
The State thereafter requested the court to impose the maximum sentence of three years on each delinquency offense to run consecutively for an aggregate term of six years. The State suggested to the court that it must consider as "aggravating factors" "the heinous, cruel and depraved" nature of the offense, which prompted S.C.'s attorney to object that it is inappropriate to make a "new determination of aggravating and mitigating factors at the violation of probation hearing." He added that the court may find "mitigating factors no longer exist" but that the court may not find new "aggravating factors."
The Family Part judge disagreed and stated he is "required to go through aggravating and mitigating factors" despite the complete absence of any findings on those factors at the time of the original sentencing.
The Family Part judge thereafter found several aggravating factors applied and no mitigating factors at all. He found aggravating factor A - that the act was cruel, heinous and depraved, given the youth of the victims; B - that the victims suffered grave harm; C - that S.C. was likely to re-offend because he told the psychologist prior to being placed on probation that he did not sexually molest his cousins; D - S.C.'s "prior record;" G - that there is a need to deter S.C., because he "has not engaged in the treatment [] critical to protect society against a sexual offender;" and J - that "he took away a [seven] year old and an [eight] year old's innocence." The judge added that the newly pending CDS charges against S.C. demonstrate he is "now escalating" his involvement with unlawful drugs.
N.J.S.A. 2A:4A-44(a)(1)(A).
S.C. was sentenced to three years at the Training School for Boys on each offense, to run concurrently. S.C. thereafter appealed and the appeal was heard on our excessive sentence calendar.
In State ex rel C.V., 201 N.J. 281, 294-5 (2012), the Supreme Court explained that the Juvenile Justice Code, N.J.S.A. 2A:4A-20 to -90, grants Family Part courts exclusive jurisdiction to impose an array of dispositions to promote the Code's "rehabilitative goals" and, further,
the Code permits the court to order incarceration or, in lieu of incarceration, any of twenty enumerated dispositions under N.J.S.A. 2A:4A-43(b). The statute sets forth the factors that the court must weigh when determining the appropriate disposition. N.J.S.A. 2A:4A-43(a).The court also stated,
The Code provides guidance to judges considering whether incarceration is appropriate. N.J.S.A. 2A:4A-44 mandates that the court consider both aggravating and mitigating factors and then use its discretion to weigh those factors and impose a sentence. See State v. Jarbath, 114 N.J. 394, 400 (1989) (explaining that, with reference to adult offenders, aggravating and mitigating factors provide standards to 'guide judicial discretion in determining' custodial sentences).
[201 N.J. at 295 n.3.]
In the case before us, the Family Part judge at the time of the original disposition made none of the required findings under the Code and failed to consider on the record any of the factors mandated by N.J.S.A. 2A:4A-43(a) and N.J.S.A. 2A:4A-44(a). This failure made it impossible for the Family Part judge to undertake the appropriate analysis required at the time he considered a disposition for the VOP.
Where an individual is charged with a violation of probation, the court shall hold a hearing, as "part of the corrections process." State v. Reyes, 207 N.J. Super. 126, 134 (App. Div.), certif. denied, 103 N.J. 499 (1986); State v. Lavoy, 259 N.J. Super. 594, 600 (App. Div. 1992). A charge of violation of probation is not a criminal prosecution. Reyes, supra, at 134. Thus, to sustain the charge, the court need only be satisfied by a "preponderance of the evidence [the] defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of probation." State v. Jenkins, 299 N.J. Super. 61, 73 (App. Div. 1997) (citations and internal quotation marks omitted).
Essentially, the question a court must decide is whether a violation of a condition of probation has occurred and whether the violation is serious enough to justify revocation of probation. State v. Baylass, 114 N.J. 169, 175 (1989). Courts will not revoke probation for mere technical violations. State v. Moretti, 50 N.J. Super. 223, 248 (App. Div. 1958). In Moretti, the court stated, "if [defendant's] conduct is that of the ordinary well-behaved person, with no serious offenses charged against him and with no indication that he intends in the future to pursue the course which led to the original conviction, the courts and probation officer should not revoke probation upon technical violations." Ibid.
Further, when imposing a sentence, the court must identify and weigh all of the relevant aggravating factors counterbalanced with the mitigating factors supported by credible evidence. State v. Dalziel, 182 N.J. 494, 504-05 (2005). A court shall apply such mitigating factors as are present in the record or state why such factors are rejected. State v. Bieniek, 200 N.J. 601, 609 (2010). When a court imposes a sentence for a violation of probation, the court must weigh all aggravating and mitigating factors and a violation of probation is not itself considered to be an aggravating factor. "The only aggravating factors the court may consider are those that existed at the time of the initial sentencing." Baylass, supra, 114 N.J. at 176.
The record before us does not contain any statement of reasons for imposing the original sentence required under N.J.S.A. 2A:4A-43(a), nor any identification or analysis of aggravating and mitigating factors required by N.J.S.A. 2A:4A- 44(a)(1). Indeed, the record is completely devoid of any reasons that prompted the Family Part judge to impose eighteen months of probation. The failure of the original Family Part judge to state his reasons for imposing probation not only frustrates appellate review of that disposition, but also prevents the court from undertaking its core function when considering an appropriate disposition upon a subsequent violation of probation.
Consequently, a Family Part judge first must identify such factors. Thereafter, the judge who conducts the violation of probation hearing will have to evaluate these factors in determining what an appropriate sentence would be for violating probation. In circumstances such as these, "[o]nce the court decides to impose a custodial sentence, it must again weigh the aggravating and mitigating factors to determine" an appropriate sentence. Ibid.
Accordingly, S.C. is entitled to a consideration of the original aggravating and mitigating factors in light of the violation of probation. Because this procedure was not followed in this case, we vacate S.C.'s dispositions and remand for re-sentencing at which time the court must appropriately identify and weigh the aggravating and mitigating factors. Thereafter, the Family Part must consider those aggravating and mitigating factors when imposing a disposition on the VOP. We affirm the Family Part's acceptance of the pleas entered on the record on May 2, 2013, and September 18, 2014.
Because we are vacating both dispositions and remanding, we have no reason to evaluate or comment upon the aggravating factors and the absence of mitigating factors found to apply at the VOP hearing, or whether the record would support such factors. Also, at this time, we have no reason to evaluate or comment upon the court's disposition at the VOP hearing. Rather, it is the obligation of the Family Part to evaluate and assess the appropriate factors that applied at the time of the initial sentence. Thereafter, the Family Part may not assess new aggravating factors in determining the appropriate disposition for the VOP. Rather, it may only consider those found to apply at the time of the original sentence, but may appropriately adjust any mitigating factors found to apply. We do not want our silence on the issue to be construed as approving the VOP judge's determinations, however, or the disposition he imposed.
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Affirmed in part, reversed in part and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION