Opinion
DOCKET NO. A-5479-14T1
02-16-2016
STATE OF NEW JERSEY, Plaintiff-Appellant, v. COREY DEGROAT, a/k/a COREY D. DEGROAT, a/k/a SMOOTH, Defendant-Respondent.
Catherine A. Foddai, Special Deputy Attorney General/Acting Senior Assistant Prosecutor, argued the cause for appellant (Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney; Ms. Foddai, of counsel and on the brief). Susan Green, First Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Ms. Green, of counsel and on the brief).
FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Whipple. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 14-10-1633. Catherine A. Foddai, Special Deputy Attorney General/Acting Senior Assistant Prosecutor, argued the cause for appellant (Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney; Ms. Foddai, of counsel and on the brief). Susan Green, First Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Ms. Green, of counsel and on the brief). PER CURIAM
In this appeal, the State challenges the admission of defendant Corey DeGroat into Drug Court. The State contends that a prior aggravated assault conviction prevents defendant from meeting the Drug Court Manual's eligibility requirements. We agree with the State. We therefore vacate defendant's sentence and remand for further proceedings.
Manual for Operation of Adult Drug Courts in New Jersey, Directive #2-02 (July 22, 2002), available at https://www.judiciary.state.nj.us/drugcourt/dctman.pdf (Manual or Drug Court Manual). "[T]he Manual describes two tracks through which defendants can be sentenced into Drug Court: one under the statutory criteria in the Drug Court Statute (Track One) and the other (Track Two) under the Manual's criteria for defendants who are not eligible under the statute." State v. Maurer, 438 N.J. Super. 402, 408 n.2 (App. Div. 2014).
I.
On July 25, 2014, defendant Corey DeGroat unlawfully entered a home in Washington Township, and stole more than $3,000 worth of jewelry. Following indictment, defendant applied for admission into the Bergen County Drug Court Program. The Bergen County Prosecutor's Office objected because defendant was not eligible for Drug Court pursuant to the Drug Court Manual guidelines based upon a 1996 conviction for fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5).
Bergen County Indictment No. S-1633-14, filed October 27, 2014, charged defendant with third-degree burglary, N.J.S.A. 2C:18-2(a)(1) (count one); third-degree theft, N.J.S.A. 2C:20-3(a) (count two); fourth-degree criminal mischief, N.J.S.A. 2C:17-3(a)(2) (count three); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count four).
Defendant appealed the Prosecutor's rejection of his Drug Court application to the Law Division. Defendant requested that the court take a more flexible approach in assessing his eligibility for Drug Court, in light of our decision in State v. Maurer, 438 N.J. Super. 402 (App. Div. 2014). The trial judge initially denied defendant's appeal, stating he did not believe that Maurer could be extended to apply to defendant's application. However, after defendant explained his struggles with substance abuse and addiction, the judge reconsidered his decision, and ordered completion of a Treatment Assessment Services for the Courts (TASC) evaluation before ruling on defendant's eligibility for Drug Court. The TASC evaluation of the thirty-eight-year-old defendant, a father of five children, detailed an extensive life of drug and alcohol dependence beginning at the age of eleven. Despite this history, defendant had never before received evaluation or treatment for drug or alcohol abuse. The interviewer's assessment concluded "[t]here is a high likelihood that the client will relapse to use substances without close outpatient monitoring and structured therapeutic services," and "recommended that [defendant] be referred for LOC 2.1, Intensive Outpatient Services."
After reviewing the report and the arguments of counsel, the judge admitted defendant into the Drug Court program. In doing so, he relied on "parallel extrapolation from [Maurer] to the circumstances here where we have a [] case that's what I would call ancient history on the aggravated assault." The judge stated his belief that defendant deserved the opportunity to enter into the program, and that an individual such as defendant is "what the intention of Drug Court is really all about." On June 25, 2015, defendant entered guilty pleas to third-degree burglary (count one) and third-degree theft (count two), with counts three and four to be dismissed at sentencing. On July 23, 2015, the court sentenced defendant to a five-year probationary term in Drug Court pursuant to Track Two. The court stayed entry into the Drug Court program pending the State's appeal. This appeal followed.
II.
A.
On appeal, the State argues that defendant's prior aggravated assault conviction makes him ineligible for Drug Court under both Track One and Track Two; thus, his sentence of five-year special probation constitutes an illegal sentence.
We begin by briefly describing the nature of Drug Courts "and the positive role they play within our judicial system." State v. Meyer, 192 N.J. 421, 428 (2007). "Drug Courts are specialized courts within the Superior Court that target drug- involved offenders who are most likely to benefit from treatment and do not pose a risk of public safety." Ibid. (citation and internal quotation marks omitted). They have been repeatedly recognized by the Supreme Court for the positive role they play in society, and studies empirically confirm their success. Maurer, supra, 438 N.J. Super. at 408-09 (App. Div. 2014).
See also New Jersey Adult Drug Court Program: New Jersey Statistical Highlights, available at https://www.judiciary.state.nj.us/drugcourt/njstats.pdf (providing statistics from the Administrative Office of the Courts (AOC) through November 2015 that reflect the Drug Court's success). --------
Within three years of finishing a [D]rug [C]ourt program, only fourteen percent of [D]rug [C]ourt graduates were arrested for new indictable crimes. In comparison, a fifteen-state study found that 67.5 percent of offenders released in 1994 had been rearrested within three years of release. Ninety-five percent of drug tests taken by New Jersey program participants produced negative results, and at the time of graduation, ninety-three percent of the participants were employed. Drug [C]ourt programs are credited with helping participants give birth to drug-free babies and regain custody of their children.
Additionally, the State realizes substantial cost-savings through [D]rug [C]ourt programs. The average cost per year to house an inmate in state prison is $34,218 compared to $17,266 to give that same offender the rehabilitative services of Drug Court, including six months of in-patient treatment.
[Id. at 409 (citation omitted).]
"The executive and legislative branches have also recognized the success and value of the Drug Court program." Id. at 410; see Preamble to Executive Order No. 83 dated November 28, 2011, "Creation of the Governor's Task Force on Recidivism Reduction, 44 N.J.R. 3(a) (January 3, 2012) ("New Jersey's Drug Court . . . helps to achieve the overriding goal of the New Jersey Code of Criminal Justice to protect public safety by reducing the incidence of crime . . . .").
B.
"Our review of a trial court's application of the Drug Court Statute and Manual to a defendant involves a question of law." Maurer, supra, 438 N.J. Super. at 411. This court's "standard of review on legal issues is de novo and we owe no deference to the trial court's 'interpretation of the law and the legal consequences that flow from established facts[.]'" State v. Bradley, 420 N.J. Super. 138, 141 (App. Div. 2011) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). "[T]he State may appeal an illegal sentence without express authorization in the criminal code or rules of court." State v. Chambers, 377 N.J. Super. 365, 370 (App. Div. 2005) (quoting State v. Parolin, 339 N.J. Super. 10, 13-14 (App. Div. 2001), rev'd on other grounds, 171 N.J. 223 (2002)). However, the State must move quickly when appealing an illegal sentence. State v. Schubert, 212 N.J. 295, 309-10 (2012) .
In July 2002, the AOC promulgated the Drug Court Manual, which was "intended to implement uniform statewide eligibility criteria to ensure the equitable operation of the Drug Court program throughout the State." Meyer, supra, 192 N.J. at 431 (citation and internal quotation marks omitted). The Drug Court Manual provides two separate tracks into Drug Court. "Offenders must either satisfy the eligibility requirements for 'special probation' set forth in N.J.S.A. 2C:35-14, or 'otherwise be eligible under other sections of the Code of Criminal Justice." Ibid. (citing Drug Court Manual, supra, at 10).
Under the first track for admission, N.J.S.A. 2C:35-14, "the Manual echoes the statutory eligibility requirements for 'special probation,' noting that the statute provides an alternative to imprisonment for offenders subject to a presumption of incarceration pursuant to N.J.S.A. 2C:44-1(d) or to a mandatory prison term pursuant to N.J.S.A. 2C:35-7." Meyer, supra, 192 N.J. at 431-32 (citing Drug Court Manual, supra, at 10-15). However, the Drug Court Manual also "specifically lays out a second track for Drug Court admission, stating that '[s]ubstance abusing nonviolent offenders who are not subject to N.J.S.A. 2C:35-14 are also eligible for drug court disposition under the general sentencing provisions of the Code of Criminal Justice.'" Id. at 432 (citing the Drug Court Manual, supra, at 16). On this second track, an offender is eligible for Drug Court sentencing if:
a. the person has a drug or alcohol dependence, as determined by a diagnostic assessment and substance abuse treatment and monitoring is likely to benefit the person; andUnlike sentencing under N.J.S.A. 2C:35-14, the second track for admission "follows the Code's general sentencing provisions and allows the court to impose a probationary term not to exceed five years in accordance with N.J.S.A. 2C:45-2." Meyer, supra, 192 N.J. at 432-33; see Drug Court Manual, supra, at 17. Accordingly, "[t]he sentencing dispositions used by Drug Courts are N.J.S.A. 2C:35-14 and N.J.S.A. 2C:45-1." Meyer, supra, 192 N.J. at 435.
b. the person has not been previously convicted or adjudicated delinquent for, and does not have a pending charge of murder, aggravated manslaughter, manslaughter, robbery, kidnapping, aggravated assault, aggravated sexual assault or sexual assault, or a similar crime under the laws of any other state or the United States; and
c. the person did not possess a firearm at the time of the present offense and has no history of possession of a firearm during an offense; and
d. no danger to the community is likely to result from the person being placed on probation.
[Drug Court Manual, supra, at 16.]
In 2012, statutory amendments altered eligibility and broadened the scope for consideration of Track One defendants, indicative of the Legislature's intent to broaden Drug Court access:
For example, the Legislature contemporaneously enacted N.J.S.A. 2C:35-14.1 and -14.2, effective July 1, 2013, which permit a court to sentence a qualified offender under the Drug Court Statute even if the defendant does not seek admission, and even if the defendant is a third-degree offender, who had been previously "convicted of a crime subject to the presumption of imprisonment or that resulted in imposition of a State prison term."
. . . .
Despite these statutory amendments, the Drug Court Manual has not been modified, and remains as originally released in 2002. Ibid.
[In another example], prior to the amendments, N.J.S.A. 2C:35-14(c) granted the prosecutor the right to object to an otherwise qualified defendant's entry into Drug Court and, absent a showing of "gross and patent abuse of [the prosecutor's] discretion," a court could not override that objection and admit the defendant to drug court. Subsection (c) was deleted in the 2012 amendments. Also, the amendments removed the express ban on admission of those defendants who committed either second-degree robbery or burglary offenses. L. 2012, c. 23, S. 881, § 5.
[Maurer, supra, 438 N.J. Super. at 413-14.]
III.
A.
As previously noted, notwithstanding the State's contention, defendant was sentenced to "5 years Drug Court Probation, track 2," and therefore sentenced under regular probation pursuant to N.J.S.A. 2C:45-1, with several drug treatment conditions of probation, i.e., admission into Drug Court. Although the TASC report indicates that defendant would greatly benefit from Drug Court, the court's sentence ran afoul of the Drug Court Manual.
The Drug Court Manual is recognized as an authoritative source for the operation of the Drug Court program. See Meyer, supra, 192 N.J. at 431; see also Drug Court Manual, supra, at v (noting that other than the circumstance in which there is a conflict between the Drug Court Manual and any statement of policy issued by the Supreme Court, the Judicial Council, or the AOC, the Drug Court Manual is binding on court staff). The Drug Court Manual outlines the eligibility criteria under sentencing statutes for "[s]ubstance abusing nonviolent offenders who are not subject to N.J.S.A. 2C:35-14 . . . under the general sentencing provisions of the Code of Criminal Justice." Drug Court Manual, supra, at 16. According to these criteria, an offender is eligible for sentencing if ". . . the person has not been previously convicted or adjudicated delinquent for, and does not have a pending charge of murder, [or] . . . aggravated assault . . . ." Ibid. As noted, defendant's court history reveals a 1996 conviction for fourth-degree aggravated assault, making him ineligible for Drug Court under the Drug Court Manual directives.
Defendant submits that his sentence is legal, and therefore the State has no right to appeal. Rather, defendant argues that the judge properly imposed a five-year probationary sentence with a wide-variety of drug treatment restrictions, pursuant to N.J.S.A. 2C:43-6(a).
While appealing on the surface, defendant's argument would essentially render the Track Two guidelines in the Drug Court Manual superfluous. Defendant cites Meyer, supra, 192 N.J. at 421, for the proposition that a trial court has discretion to admit nonviolent drug-dependent offenders into Drug Court, even when they do not fall under the "special probation" statute. Although this is true, Meyer is not applicable to the instant case. Meyer involved a defendant whose prior convictions were: bringing a stolen automobile into the State, theft of an automobile, theft, and receipt of stolen property. Id. at 424. Clearly, these were nonviolent crimes. As such, the defendant in Meyer, "[i]n light of the track two criteria, . . . [was] eligible for Drug Court. He [was] drug dependent and not charged with a disqualifying crime." Id. at 434. The Drug Court Manual is concerned with nonviolent offenders, whereas defendant has an aggravated assault conviction, despite it being approximately nineteen-years-old.
Defendant also cites our recent decision in Maurer, supra, 438 N.J. Super. at 408, for the bare proposition that "[t]he Supreme Court has repeatedly recognized the positive role Drug Courts play in our society." In Maurer, the defendant, who had a conviction for second-degree possession of a firearm, applied for Drug Court under Track Two; the prosecutor objected on the ground that the defendant's firearms conviction disqualified him from Drug Court, and the trial court agreed. Id. at 407-08.
On appeal, after considering the history of New Jersey's successful Drug Court program, the application of the Drug Court Manual's guidelines, and the Drug Court Statute, N.J.S.A. 2C:35-14 as recently amended, this court reversed the judgment finding the defendant ineligible for Drug Court. Maurer, supra, 438 N.J. Super. at 415-18. We determined that barring defendant from consideration for Drug Court was unfair and would constitute disparate sentencing, noting that the parallel statutory provision for Track One defendants provided "the person did not possess a firearm at the time of the present offense and did not possess a firearm at the time of any pending criminal charge." Id. at 415 (emphasis removed) (quoting Drug Court Manual, supra, at 11).
However, the Drug Court Manual's equivalent provision provided that "the person did not possess a firearm at the time of the present offense and has no history of possession of a firearm during an offense." Drug Court Manual, supra, at 16. Accordingly, this meant that a Track One defendant, charged with a more serious offense such as second-degree robbery, could have a previous weapons conviction and still be eligible for Drug Court, while a Track Two defendant would be barred from entry. Maurer, supra, 438 N.J. Super. at 415-16. Therefore, we ordered the Drug Court Manual to be revised to conform to the statutory provision, and remanded for reconsideration of the defendant's application. Id. at 417-18.
We conclude that Maurer is inapplicable to the case under review. Here, the statute and the Drug Court Manual conform, in that an individual convicted of aggravated assault would be ineligible for Drug Court under either Track One or Track Two. See N.J.S.A. 2C:35-14(a)(7); Drug Court Manual, supra, at 11, 16. Maurer presented a unique factual situation which highlighted an unjust disparity with "no valid policy consideration to support that result." Maurer, supra, 438 N.J. Super. at 418. We will therefore not divert from existing substantive law, court rules, and directives for this matter. See In re State in Interest of A. C, 115 N.J. Super. 77, 84 (App. Div. 1971) ("As an intermediate appellate tribunal, we adhere to the decision of our Supreme Court in those cases. Any departure should be undertaken 'by the court of last resort, and not by the Appellate Division.'") (quoting Casale v. Hous. Auth., City of Newark, 42 N.J. Super. 52, 62 (App. Div. 1956)).
B.
We briefly address and reject defendant's argument that the State lacks the authority to appeal this sentence. "It is firmly established that a court may correct an illegal sentence at any time." Chambers, supra, 377 N.J. Super. at 369-70 (citing State v. Baker, 270 N.J. Super. 55, 74-76 (App. Div.), aff'd o.b., 138 N.J. 89 (1994)). "A corollary of this principle is that the State may appeal an illegal sentence without express authorization in the criminal code or rules of court." Parolin, supra, 339 N.J. Super. at 13-14 (citing State v. Sheppard, 125 N.J. Super. 332, 336-39 (App. Div.), certif. denied, 64 N.J. 318 (1973)). The Judgement of Conviction clearly indicates that defendant was "[s]entenced to [five] years Drug Court Probation, track 2." As noted, there are specific sentencing guidelines that were violated by the trial court; as such, defendant's sentence was illegal and appealable by the State.
Notwithstanding our disposition of this appeal, we note that, on remand, the trial court has the authority, as a condition of a probationary term, to order defendant into a drug rehabilitation program and to subject him to intensive drug monitoring. If this occurs, however, the sentence will involve a regular probationary term, and not a Drug Court probationary term. Alternatively, if the judge decides not to give defendant a regular probationary term with drug treatment, or if defendant decides that he only wants Drug Court probation, then the judge will give defendant the option to withdraw his guilty plea.
Vacated 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