NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0932-16T2

STATE OF NEW JERSEY,

Plaintiff-Appellant, APPROVED FOR PUBLICATION

v. April 19, 2017

DONNELL W. ANCRUM, APPELLATE DIVISION

Defendant-Respondent. _______________________________________________

Argued February 28, 2017 – Decided April 19, 2017

Before Judges Messano, Suter, and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-01-0336.

Jason Magid, Assistant Prosecutor, argued the cause for appellant (Mary Eva Colalillo, Camden County Prosecutor, attorney; Mr. Magid, of counsel and on the brief).

Stefan Van Jura, Deputy Public Defender, II, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Mr. Van Jura, of counsel and on the brief).

The opinion of the court was delivered by

MESSANO, P.J.A.D. This appeal requires us to interpret two sections of N.J.S.A.

2C:35-14 (the Statute), the provision of our Criminal Code

permitting the court to sentence certain offenders to "special

probation." Specifically, we examine N.J.S.A. 2C:35-14(a)(7)

(Section a(7)), which provides that the court may sentence a

defendant to special probation if, after making other required

findings, the court also finds "the person has not been previously

convicted or adjudicated delinquent for, and does not have a

pending charge of murder, aggravated manslaughter, manslaughter,

kidnapping, aggravated assault, aggravated sexual assault or

sexual assault . . . ." (Emphasis added). We also must consider

N.J.S.A. 2C:35-14(b)(2) (Section b(2)), which provides: "A person

shall not be eligible for special probation . . . if the person

is convicted of or adjudicated delinquent for . . . a crime of the

first or second degree [subject to the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2(d)], other than a crime of the second degree

involving . . . robbery or . . . burglary."

In this case, defendant Donnell Ancrum pled guilty to Camden

County Indictment Number 13-01-0336, charging him with second-

degree burglary, N.J.S.A. 2C:18-2(a)(1) (count one), second-degree

robbery, N.J.S.A. 2C:15-1(a)(1) (count two), second-degree

aggravated assault (serious bodily injury), N.J.S.A. 2C:12-1(b)(1)

(count three), and third-degree aggravated assault (significant

2 A-0932-16T2 bodily injury), N.J.S.A. 2C:12-1(b)(7) (count four). After

merging count four into count three, and count three into counts

one and two, and over the State's objection, the judge sentenced

defendant to special probation for five years, conditioned upon

his enrollment in, and successful completion of, Drug Court.

The judge denied the State's request to stay imposition of the

sentence. We granted the State's motion for leave to appeal,

entered a stay and expedited the appeal. See State v. Rippy,

(App. Div. 2013) ("The State may appeal an

illegal sentence, and a sentence not imposed in accordance with

law is illegal.") (citations omitted), certif. denied,

(2014). We now reverse, vacate defendant's guilty pleas and

remand the matter to the Law Division.

I.

Following an earlier court appearance at which there were

apparent discussions regarding defendant's eligibility for Drug

Court, the parties appeared before the Law Division judge on July

22, 2016.1 The judge described the disputed facts of the case:

[T]he assault consisted of . . . defendant striking the homeowner . . . during the commission of the theft from the home . . . . [T]he defendant entered the home, was . . . discovered either by the homeowner coming back

1 We have not been provided with a transcript from any earlier proceedings, but, we gather from the July 22 transcript that both sides had provided the judge with briefs on the issue.

3 A-0932-16T2 to the home or having been there unbeknownst to the defendant, and then appearing. . . . [T]he allegation is there was a confrontation. . . . [T]he defendant struck the homeowner.

Great controversy about the degree to which the homeowner was injured, with medical records and other issues that counsel have made me aware of as well.

For drug court purposes, the issue that we confront . . . is . . . if [defendant] . . . [were to be] found guilty of both the aggravated assault and the robbery, would he be eligible to apply to drug court[?]

The judge noted that a conviction for aggravated assault would bar

a sentence of special probation and defendant's entry into Drug

Court.

However, relying primarily on State v. Mirault,

(1983), the judge concluded that, under the facts of the case, any

conviction for aggravated assault would merge with any conviction

for robbery or burglary. As a result, "defendant would not be

statutorily barred" from entry into Drug Court. The judge also

found that based upon the State's representations regarding the

facts of the case, and defendant's lack of a prior criminal record,

defendant would not be excluded under "paragraph nine either."

See N.J.S.A. 2C:35-14(a)(9) (requiring the court find "no danger

to the community will result from [defendant] being placed on

special probation").

4 A-0932-16T2 Treatment Assessment Services for the Courts (TASC) evaluated

defendant and recommended he receive intensive outpatient

treatment.2 During proceedings on September 28, 2016, the

prosecutor argued defendant was ineligible for Drug Court because

there was no nexus between his drug abuse and the crime. See

N.J.S.A. 2C:35-14(a)(3) ("[T]he present offense was committed

while the person was under the influence of a controlled dangerous

substance . . . or was committed to acquire property or monies in

order to support the person's drug or alcohol dependency

. . . ."). The prosecutor noted the TASC report demonstrated

defendant's "very minimal" use of drugs or alcohol, and the

allegations of violence were inconsistent with defendant's

admitted use of only marijuana. Defense counsel countered,

contending defendant's admitted marijuana use was "out of

control."

The judge determined defendant was "clinically eligible" for

Drug Court. Noting defendant had no other source of income, the

judge concluded the offense was committed either while defendant

was under the influence of cannabis or for the purpose of obtaining

money to support his marijuana habit.

2 The TASC report is not in the record.

5 A-0932-16T2 Defendant pled guilty under oath to all four counts of the

indictment without any agreed-upon sentence recommendation by the

State, i.e., a so-called "open plea," and with the State continuing

to object to defendant's entry into Drug Court. Defendant admitted

entering the victim's home without permission and with the intent

to commit a crime, "tak[ing] something" from the victim and

purposely striking the victim in the face as defendant ran out of

the house. Defendant admitted that the victim suffered a

concussion as a result, and the judge concluded that established

"serious bodily injury." The judge accepted defendant's guilty

pleas.

At sentencing on October 26, the State renewed its objection

to defendant being placed on special probation and requested he

be sentenced to eight years' imprisonment, subject to NERA. The

victim told the judge that he had suffered serious injuries because

of the assault, including "near constant headaches," sensitivity

to noise and light, "balance problems," "permanent damage to the

retina" of one eye, and was "still suffering from th[e] attack."

The judge made specific findings under subsections (a)(1)-

(9) of the Statute. Because defendant's convictions for aggravated

assault merged with his conviction for robbery, the judge concluded

defendant had no "pending charge for a disqualifying offense"

under Section a(7), nor did he stand convicted of a disqualifying

6 A-0932-16T2 crime under Section b(2). The judge found aggravating sentencing

factors three and nine, see N.J.S.A. 2C:44-1(a)(3) (the risk of

re-offense); (a)(9) (the need to deter), and mitigating factor

ten. See N.J.S.A. 2C:44-1(b)(10) (defendant was likely to respond

affirmatively to probation). The judge found the aggravating

factors outweighed the mitigating factors and imposed the

probationary sentence noted above.

II.

The State concedes that under the facts of this case,

defendant's conviction for aggravated assault merges into his

conviction for robbery. It argues, however, that the merger did

not "extinguish" defendant's conviction for second-degree

aggravated assault, thereby making him ineligible for special

probation under Section b(2). Defendant counters by contending

the judge properly "determined the legal effect of merger," which

resulted in defendant's conviction for second-degree robbery and

burglary, neither of which are disqualifying convictions under

Section b(2).

"Because the issue before us is one of law, our review is 'de

novo and we owe no deference to the trial [judge]'s interpretation

of the law and the legal consequences that flow from established

facts.'" State v. Stalter,

(App. Div.)

(alteration in original) (quoting State v. Bradley,

A-0932-16T2 138, 141 (App. Div. 2011)), certif. denied,

(2015).

We are required to construe the Statute, recognizing "[t]he goal

of all statutory interpretation 'is to give effect to the intent

of the Legislature.'" State v. Morrison,

(2016)

(quoting Maeker v. Ross,

(2014)). "In doing so,

'we must construe the statute sensibly and consistent with the

objectives that the Legislature sought to achieve.'"

(quoting Nicholas v. Mynster,

(2013)). Further,

in considering the law of merger and the particular facts of this

case, "[w]e [must] not adopt an interpretation of the statutory

language that leads to an absurd result or one that is distinctly

at odds with the public-policy objectives of a statutory scheme."

(citing Murray v. Plainfield Rescue Squad,

(2012)).

A.

The Statute provides that "[a]ny person who is ineligible for

probation due to a conviction for a crime which is subject to a

presumption of incarceration or a mandatory minimum period of

parole ineligibility may be sentenced to a term of special

probation . . . ." N.J.S.A. 2C:35-14(a). Special probation has

been an available sentencing alternative since 1999, when the

Legislature amended the statute. State v. Bishop,

A-0932-16T2 533, 540 (App. Div. 2013), aff'd o.b.,

(2015). As

Judge Lisa succinctly wrote:

Special probation [wa]s 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." Thus, the Legislature created special probation as a disposition aimed specifically at prison-bound offenders, who would not be eligible for regular probation.

[Ibid. (quoting State v. Meyer,

(2007)).]

Special probation "and Drug Courts serve complementary purposes."

. Special probation provides one

route, or track, by which certain offenders become eligible for

Drug Court, a "specialized court[] . . . that target[s] drug-

involved 'offenders who are most likely to benefit from treatment

and do not pose a risk to public safety.'"

at 428-29 (quoting

Administrative Office of the Courts, Manual for Operation of Adult

Drug Courts In New Jersey (July 2002), at 3).3

While broadening the universe of eligible defendants beyond

those sentenced for drug-related offenses, the 1999 amendment to

3 Because "Drug Courts are a creature of the judiciary," a second track for admission is available through application of the Drug Court Manual and the general sentencing provisions of the Criminal Code. State v. Clarke,

(2010) (quoting

).

9 A-0932-16T2 the Statute made certain offenders ineligible for special

probation. See L. 1999, c. 376 (2000). For example, anyone who

possessed a firearm at the time of the offense, or had a pending

charge involving a firearm, and anyone who had been previously

convicted on two or more separate occasions for crimes of the

first, second or third degree, other than possession of CDS, was

ineligible for special probation. N.J.S.A. 2C:35-14(a)(5) and (6)

(2000). As first enacted, Section a(7) prohibited special

probation for any defendant "previously convicted or adjudicated

delinquent for, [or who had] a pending charge of murder, aggravated

manslaughter, robbery, kidnapping, aggravated assault, aggravated

sexual assault or sexual assault . . . ." N.J.S.A. 2C:35-14(a)(7)

(2000) (emphasis added). Additionally, the court could not

sentence defendants convicted of first-degree crimes, or crimes

of violence as then defined by NERA, to special probation.

N.J.S.A. 2C:35-14(b)(1) and (2) (2000).

There were minor modifications over ensuing years. For

example, in 2001, the Legislature amended Section b(2) "to reflect

changes made in [NERA], applying that provision not to 'crimes of

violence,' but rather to specifically enumerated first or second

degree crimes." Cannel, New Jersey Criminal Code Annotated,

comment 1 on N.J.S.A. 2C:35-14 (2016-17) (citing L. 2001, c. 129).

The same legislation modified NERA, including robbery, second-

10 A-0932-16T2 degree burglary and second-degree aggravated assault in the list

of crimes specifically enumerated. N.J.S.A. 2C:43-7.2(d) (2001).

In 2012, however, the Legislature significantly amended the

Statute. L. 2012, c. 23 (2012). First, it removed robbery from

the crimes list in Section a(7), for which a pending charge or

prior conviction would deny eligibility for special probation.

Additionally, the Legislature amended Section b(2) so that it now

reads: "A person shall not be eligible for special probation

pursuant to this section if the person is convicted of or

adjudicated delinquent for . . . a crime of the first or second

degree [subject to NERA], other than a crime of the second degree

involving . . . robbery or . . . burglary." (Emphasis added).4

By this express language, the Legislature permitted the court to

sentence a defendant convicted of second-degree robbery or

burglary to special probation. At the same time, however, the

Legislature continued to bar those convicted of second-degree

aggravated assault from special probation.

B.

Section a(7) prohibits a sentence of special probation if a

defendant was previously convicted of certain crimes, including

4 Pursuant to N.J.S.A. 2C:43-7.2(a), NERA's parole ineligibility periods apply to first- and second-degree crimes, including robbery and burglary. See N.J.S.A. 2C:43-7.2(d)(9) and (12).

11 A-0932-16T2 aggravated assault, or has a pending charge for aggravated assault.

In sentencing defendant, the judge noted that defendant satisfied

Section a(7) because after the merger, he had no "pending charge"

for aggravated assault. Based upon both the structure of the

Statute and its legislative history, we first clarify that

defendant satisfied Section a(7) without regard to issues of

merger.

The Statute is a sentencing provision that provides one of

many dispositions authorized by our Criminal Code. Bishop, supra,

. It permits a "drug or alcohol dependent

person," "subject to sentencing" to receive a probationary

sentence, unless he or she is being sentenced for a crime listed

in N.J.S.A. 2C:35-14(b). (Emphasis added). Section a(7) only

prohibits the judge from imposing a sentence of special probation

if the defendant has been "previously" convicted of certain

offenses or has a "pending" charge for such offense. The

legislative history of the 2012 amendment makes clear that the

Legislature intended to exclude the crime for which a defendant

is facing sentence from consideration under Section a(7). See

Senate Budget and Appropriations Committee, Statement to S. 881

(Apr. 3, 2012) ("This list of prohibited offenses [in Section

a(7)] does not apply to the conviction for which the offender is

currently being sentenced.").

12 A-0932-16T2 In this case, the limited record provided to us demonstrates

defendant had not been previously convicted of a disqualifying

offense, nor did he have other pending charges for such an offense.

As a result, defendant satisfied Section a(7) independent of the

merger issue.

C.

When the Senate Judiciary Committee approved its version of

the 2012 amendment, second-degree robbery and burglary were both

included in the list of disqualifying crimes in Section b(2).

Senate Judiciary Committee, Statement to S. 881 (February 16,

2012). The April 3, 2012 hearing of the Budget and Appropriations

Committee, however, provides a glimpse into the reasoning behind

the Legislature's subsequent decision to permit a sentence for

special probation upon conviction of second-degree robbery or

burglary.5 One senator, himself the victim of a robbery, noted

that such crimes were committed by "addicts . . . to support their

addiction." He noted those involved in his case "didn't beat

[him] up" and "didn't harm [him]." Another agreed to the proposal

only for "non-violent" robbery. A third stated the amendment was

intended to "cover . . . the person that is shoplifting a bag of

5 The proceedings are available at http://www.njleg.state.nj.us/media/archive_audio2.asp?KEY=SBA&SE SSION=2012.

13 A-0932-16T2 potato chips, [and] pushes a security officer away with one arm,

. . . [o]r a person who goes into a home to burglarize because

they need to get drugs, and they find out someone is present and

they immediately leave . . . ."

As ultimately adopted by the Legislature, Section b(2) of the

Statute is unambiguous and excludes second-degree robbery and

burglary as disqualifying crimes. However, the elements of second-

degree robbery include the infliction of bodily injury, or the

threat of same, or placing the victim in fear, or threatening to

commit some other first- or second-degree crime. N.J.S.A. 2C:15-

1(a). In short, our Criminal Code's definition of robbery was

intended to "address[] the criminal who is prone to use violence."

. Likewise, burglary is a crime of

the third-degree. N.J.S.A. 2C:18-2(a). It is elevated to a

second-degree crime, and thus subject to NERA, only when the actor

inflicts, attempts to inflict or threatens bodily injury, or is

armed with or displays a deadly weapon. N.J.S.A. 2C:18-2(b).

Second-degree burglary is, by its nature, a violent offense.

The proceedings before the Budget and Appropriations

Committee reveal that some legislators may have concluded removing

a blanket prohibition for second-degree burglary and robbery was

less problematic because a sentencing judge must ultimately find

the defendant presents "no danger to the community" if placed on

14 A-0932-16T2 special probation. N.J.S.A. 2C:35-14(a)(9). However, we remain

mindful of the Legislature's comments expressing an intention to

prohibit certain violent offenders from being sentenced to special

probation. The legislative proceedings make clear that the 2012

amendment intended a limited result, and conviction of a violent

crime, such as an aggravated assault involving the infliction of

serious bodily injury, still prohibited a sentence of special

probation.

D.

As noted, the State concedes defendant's conviction for

aggravated assault merges into his convictions for robbery. As

in

, "the proofs to sustain the

aggravated assault and the robbery . . . were identical." However,

this case presents an anomaly that bears mentioning.

Defendant was indicted for and pled guilty to second-degree

robbery, defined, among other things, as inflicting bodily injury

upon another in the course of committing a theft. N.J.S.A. 2C:15-

1(a)(1). He was also indicted for and pled guilty to second-

degree aggravated assault, i.e., purposely or knowingly causing

or attempting to cause serious bodily injury. N.J.S.A. 2C:12-

1(b)(1). Robbery is elevated to a crime of the first-degree if

the actor "purposely inflicts or attempts to inflict serious bodily

injury" during the commission of a theft. N.J.S.A. 2C:15-1(b).

15 A-0932-16T2 In other words, defendant admitted under oath committing all the

elements necessary for first-degree robbery, an offense that

clearly made him ineligible for special probation under Section

b(2).

The State's essential argument is that even though

defendant's aggravated assault conviction merged with the

convictions for second-degree robbery, it was not "extinguished,"

and therefore, defendant was ineligible for special probation. It

relies upon State v. Pennington,

(App. Div.),

certif. denied,

(1994).

In Pennington, after the defendant was convicted at trial of

knowing and purposeful capital murder and felony-murder, the judge

merged the two offenses and imposed a death sentence based on the

jury's verdict. Id. at 291-92. After the Supreme Court reversed

the defendant's capital conviction, the State decided not to retry

the case and moved to reinstate the defendant's conviction for

felony-murder. Id. at 293. The trial judge granted the motion

and sentenced the defendant. Id. at 294. In rejecting the

defendant's argument that he could not be sentenced on the

previously-merged felony-murder conviction because the Supreme

Court did not affirm that conviction, Judge Skillman wrote

"[c]onvictions merged for the purpose of sentencing are not

extinguished." Id. at 295.

16 A-0932-16T2 In this case, defendant faced sentencing on various charges,

none of which had been set aside by judicial review or otherwise.

Although limited by its facts, we agree nonetheless that Pennington

has relevance. If, for example and for reasons we cannot now

conceive, defendant's convictions for robbery or burglary were

challenged on appeal and set aside, his conviction for aggravated

assault would still stand, and he could not be sentenced to special

probation as a result. Similarly, had the State chosen only to

indict defendant for second-degree aggravated assault, he would

have been ineligible for special probation upon conviction.

Other cases that have considered the effect of merger upon

mandatory sentencing aspects for the merged offense more fully

support our conclusion. For example, in State v. Dillihay,

(1992), the defendant was convicted of certain drug

offenses, including second-degree possession with intent pursuant

to N.J.S.A. 2C:35-5, and third degree school-zone offenses under

N.J.S.A. 2C:35-7, which includes a non-merger provision with a

mandatory minimum sentence. The trial court concluded merger was

required under principles of due process and double jeopardy, but

that the mandatory minimum for the school-zone offense survived

merger.

.

The Court affirmed the sentence, explaining:

17 A-0932-16T2 We base our decision on a construction that effectuates the legislative intent and simultaneously avoids the constitutional issue posed by non-merger. Accordingly, we hold that the school-zone statute must be construed to allow merger of school-zone offenses into first- and second-degree Section 5 offenses provided that a defendant convicted of a drug offense in a school zone is sentenced to no less than the mandatory minimum sentence provided in the school-zone statute. We acknowledge an apparent inconsistency in preserving the mandatory minimum sentence authorized by Section 7 in the context of our holding that the Section 7 conviction must merge into the Section 5 conviction. That result, however, reflects the Legislature's clear intent to impose an enhanced punishment for those who violate Section 5 while in a school zone.

[Id. at 55.]

In a similar vein, relying upon our earlier decision in State

v. Baumann,

(App. Div. 2001), the Court held

in State v. Wade,

(2001), that the mandatory

penalties upon conviction of driving while intoxicated (DWI),

N.J.S.A. 39:4-50(a), survived merger into the defendant's

conviction for second-degree vehicular homicide, N.J.S.A. 2C:11-

5. In Baumann, we concluded the defendant's conviction for DWI

merged into his conviction for third-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(7), and the DWI penalties, including a six-

month license suspension, survived the merger.

; see also State v. Frank,

A-0932-16T2 98, 109 (App. Div. 2016) (holding that mandatory Title 39 penalties

survived merger with a criminal offense that wholly included the

elements of the motor vehicle offense).

In this case, the Legislature evidenced its intent to permit

a sentence of special probation when the defendant stood before

the court convicted of second-degree robbery or second-degree

burglary. However, the Legislature spoke just as clearly in

continuing to exclude from consideration those convicted of

aggravated assault. We liken that continued prohibition to those

cases involving mandatory penalties that survive merger discussed

above. In such circumstances, the Legislature's will was to

mandate certain punishments, regardless of merger. So too in this

case, the Legislature intended to exclude those who committed

certain crimes of violence, including aggravated assault, from

receiving a probationary sentence based upon principles of merger.

This interpretation of the Statute avoids "an absurd result

or one that is distinctly at odds with the public-policy objectives

of [the] statutory scheme."

.

Plainly put, if the sentence in this case were permitted to stand,

a defendant convicted of only aggravated assault would be

ineligible for special probation; this defendant, who admitted

under oath committing robbery and burglary in addition to

aggravated assault, was nonetheless eligible. We are certain the

19 A-0932-16T2 Legislature never envisioned such a result when it amended the

Statute in 2012. As a result, because the judge imposed an illegal

sentence under the Statute, we reverse the sentence imposed.

III.

Finally, we consider the practical effect of our holding.

The State argues defendant voluntarily pled guilty to the

indictment, and we should remand the matter to the judge for

sentencing. Defendant argues that if we vacate the sentence of

special probation, we should vacate his guilty pleas because

defendant detrimentally relied upon the judge's ruling regarding

eligibility under the Statute. We agree with defendant.

We liken the situation to proceedings permitted by Rule 3:9-

3(c), where upon the consent of the prosecutor and defense counsel,

the judge may indicate his or her preliminary concurrence with a

plea agreement or, in the absence of a plea agreement, "the maximum

sentence [the judge] would impose in the event the defendant enters

a plea of guilty . . . ."

In such situations, the judge

retains the ability to reject the plea if the pre-sentence report

provides information previously unknown to the judge or "the

interests of justice would [not] be served . . . ."

Under

any circumstances, if the court rejects a defendant's guilty plea,

the parties return to the positions that existed before the plea.

State v. Pennington,

(1998). Here, of course,

20 A-0932-16T2 the State never agreed to a plea bargain, nor did it consent to

engage in proceedings under Rule 3:9-3(c). However, defendant

clearly relied upon the judge's mistaken interpretation of the

effect of merger upon Section b(2) in entering his guilty pleas,

and this detrimental reliance makes it fundamentally unfair to

permit the guilty pleas to stand.6

We reverse the sentence of special probation, vacate

defendant's guilty pleas and remand the matter to the trial court

for further proceedings consistent with this opinion. We do not

retain jurisdiction.

6 In State v. Bellamy,

(2003), the Court permitted a defendant to withdraw his guilty plea where he was misinformed of the plea consequence of community supervision for life, thereby depriving him of the information to make a knowing and voluntary decision to plead guilty. See also State v. Rosario,

(App. Div. 2007) (enforcing defendant's plea bargain because he detrimentally relied upon representations made by the prosecutor).

21 A-0932-16T2