State v. Nellom
State v. Nellom
Opinion of the Court
The opinion of the court was delivered by
On April 20, 2001, defendant pled guilty to the violation of his three year sentence of probation which was imposed on May 19, 1995. He has never challenged the knowing, voluntary nature of his guilty plea to the violation, and he does not do so on this appeal. Rather, he argues that “because the probation department failed to file a complaint providing the defendant with notice of his violation of probation [V.O.P.] charges until after the probationary period had expired, the court erred in failing to
The facts are undisputed. On February 17,1995 defendant pled guilty to receiving stolen property in exchange for the recommended imposition of a probationary sentence. On May 19, 1995, he was sentenced to probation for three years conditioned upon service of 178 days in the Somerset County Jail, and to pay certain fees and penalties in installments of $5.00 a week. It is undisputed that (1) on June 11, 1996 a bench warrant was issued for defendant’s failure to appear in response to a notice concerning his failure to pay the fines and penalties, (2) a “Warrant for Violation of Probation” was issued on November 4, 1996, and (3) the former warrant was vacated on November 6, 1998, but the latter remained in force until defendant’s arrest on January 11, 2001. It is also undisputed that a complaint for the violation, embodying a “statement of charges,” was not prepared or filed until January 25, 2001, after defendant’s arrest on the V.O.P. warrant. The complaint alleged that defendant “failed to report to the Probation Officer as directed” from April 10,1996 to November 10,1996, and “failed to pay court imposed financial obligations,” as detailed in the complaint, resulting in an outstanding balance of $1,226.
On February 6, 2001, defendant moved “to dismiss [the] violation of probation and terminate probation” on the ground that “the notice of violation was never filed with the Court until on or about January 25, 2001” and “was thus untimely,” as defendant’s “probationary term ended” on May 19, 1998.
A month later, on April 20, 2001, defendant entered his guilty plea to the violation of probation complaint. At that time, there was no discussion of the prior ruling nor preservation for appeal of the issue concerning the commencement of the proceedings. Moreover, defendant acknowledged both the nature of his violation and the fact he could be sentenced “up to five years in prison” for the violation. See N.J.S.A. 2C:45-3b. (The offense for which he was placed on probation was a third degree crime.) On May 22, 2001, defendant was sentenced to a three year custodial sentence in State Prison. Because defendant was sentenced at the bottom of the range for a third degree crime, see N.J.S.A. 2C:43-6a(3), he does not contest the sentence imposed had the violation proceedings been properly commenced.
Over twenty-five years ago, we held that a defendant who pled guilty to a violation of probation, by virtue of a subsequent conviction, could not obtain relief from that violation when the subsequent conviction was reversed because of a Fourth Amendment violation. As Judge Halpern said:
The record is clear that defendant knowingly and voluntarily pled guilty to the violation of probation, hence she may not raise independent claims relating to the depravation of constitutional rights that occurred prior to the entry of the plea. Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); State v. Humphreys, 89 N.J.Super. 322, 215 A.2d 32 (App.Div. 1965). The exclusionary rule, under the Fourth Amendment, is not applicable to a guilty plea for violation of probation which relates to conduct violative of the terms of probation, and not to police insolence and convictions resulting therefrom.
[State v. Taylor, 140 N.J.Super. 242, 244-45, 356 A.2d 31 (App.Div. 1976).]
Our Supreme Court subsequently held that a defendant’s negotiated guilty plea, under N.J.S.A. 2C:35-12, to a violation of N.J.S.A. 2C:35-7 did not constitute a waiver of defendant’s right to chai
Accordingly, as in other criminal proceedings, a defendant who pleads guilty to a violation of probation waives any issue which was or could have been raised before the plea was entered, see, e.g., State v. Robinson, 224 N.J.Super. 495, 498-99, 540 A.2d 1313 (App.Div. 1988), and this defendant waived his challenge to the timeliness of the proceedings.
In response to our invitation to brief the issue of the impact of defendant’s guilty plea on the violation of probation, defendant argues that the trial court did not have jurisdiction to accept the guilty plea because the complaint was not timely filed and that we have recognized, in defendant’s words, “that there may be a constitutionally required exception with respect to the waiver of a jurisdictional claim or a claim involving a double-jeopardy contention,” citing State v. Robinson, supra, 224 N.J.Super. at 499 n. 2, 540 A.2d 1313, and the cases cited therein.
The issue of the timely exercise of jurisdiction or repose presents a different question, and there are cases which make
As the only issue raised by defendant is not cognizable on this appeal, the judgment on the violation of probation is affirmed.
Defendant's supporting letter brief referred to March 19, 1998 as the date on which "Mr. Nellom's probationary term ended.”
We will assume, without deciding, that defendant could challenge the V.O.P. on appeal, had he preserved the issue at the time of his plea, at least if the judge approved that course of action in the absence of the prosecutor’s participation. See, e.g., R. 3:9—3(f); State v. Brown, 352 N.J.Super. 338, 350-51, 800 A.2d 189 (App.Div. 2002).
The New York cases seem to require less than New Jersey does in terms of accepting a guilty plea to a violation of probation. However, irrespective of whether the full panoply of rights is required and the plea colloquy must comply with one on an initial conviction, if the plea is sustained the plea constitutes a waiver.
The State does not oppose defendant’s argument based on its review of defendant's supplementary brief "and a review of the caselaw.”
Reference
- Full Case Name
- STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT v. RICHARD NELLOM
- Cited By
- 1 case
- Status
- Published