NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Transcription

1 STATE OF NEW JERSEY, v. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Plaintiff-Respondent, JOHN J. JENSEN, Defendant-Appellant. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. Argued May 5, 2015 Decided August 21, 2015 PER CURIAM Before Judges Ostrer and Sumners. On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No Richard F. Klineburger argued the cause for appellant (Klineburger and Nussey, attorneys; Mr. Klineburger and Carolyn G. Labin, on the brief). Thomas DiSimone, Assistant Prosecutor, argued the cause for respondent (John T, Lenahan, Salem County Prosecutor, attorney; Gregory W. Waterson, Assistant Prosecutor, of counsel and on the brief). Defendant John Jensen pled guilty to third-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5b(5). On October 25, 2011, he was sentenced to four years of probation, with the conditions that he attend an in-

2 patient or intensive out-patient drug treatment program, and serve 364 days in the county jail, subject to release on house arrest. He challenges the trial court's finding that he violated his probation. On March 13, 2013, a Violation of Probation (initial VOP) was filed charging defendant with three violations: testing positive for morphine on May 10, 2012, owing $104 in financial obligations, and failing to report as directed on February 5, The charges also indicated that his current whereabouts were unknown. Defendant contested the charges and a hearing was held. At the VOP hearing on November 13, 2013, following defendant's probation officer John Maher's statement on crossexamination that the written VOP notice was not served on defendant or his counsel, defendant moved to dismiss the VOP without prejudice. The court found this was a procedural error, granted the motion, and advised the parties that a new hearing would be scheduled after defendant was served. Later the same day, an amended VOP, excluding the charge of non-payment of fines since defendant had paid his arrears, was filed and served on defendant. The hearing on the amended charges was conducted on January 17, The State presented one witness, Maher. Defendant 2

3 testified on his own behalf and presented the testimony of Francis Falkenstein, Esq., Paul Materia, Vice-President of Road to Recovery, and his parents, Wayne Jensen (Mr. Jensen) and Margaret Clifford. The following record was developed regarding defendant's conduct while on probation. The day after defendant's sentencing, his probation supervision was transferred to New York State so that he could attend an in-patient drug treatment program in Buffalo. Upon completion of the program and his return to New Jersey, defendant's probation was transferred back to Salem County. Defendant was then placed in county jail to serve his 364 day sentence. After a brief time, which is not clear from the record, he was released on the ankle bracelet program. While on the bracelet program, defendant tested positive for morphine in May 2012, but Maher did not file VOP charges against him for the positive test. Around this same time period, defendant violated the bracelet program by burning his bracelet and was sent back to county jail. After being released on county parole, he violated parole and was returned again to county jail until he maxed out and was released on December 28, After his release, defendant returned to probation under Maher's supervision. Two weeks prior to his scheduled February 5, 2013 report date, defendant met with Maher for about forty- 3

4 five minutes and explained that he was using heroin on a daily basis and could not pass a urine test. According to defendant, Maher said he would not violate defendant nor recommend prison time, but would recommend a drug rehabilitation program. Defendant testified that he felt he would lose his life if he did not obtain treatment for his addiction. Thus, defendant, his father, and his Narcotics Anonymous sponsor searched for a treatment facility. They were successful in getting defendant accepted at Road to Recovery, Port St. Lucie, Florida. According to Materia, at that time there were New Jersey inpatient treatment facilities, but there was a shortage of inpatient treatment beds in New Jersey facilities, resulting in sixty percent of Road to Recovery's patients coming from New Jersey. On February 5, defendant telephoned Maher and told him that he would not be reporting to his scheduled meeting that day because he was leaving to go for treatment in Florida. Theretofore, defendant had been reporting to Maher as required. Maher acknowledged that defendant called him. Maher told defendant that he did not have the authority to allow defendant to leave New Jersey to obtain treatment in Florida; a probation administrative process would have to approve the specific program and transfer defendant's probation supervision to 4

5 Florida. 1 Maher testified that he informed defendant "that by not coming to that appointment [on February 5] and, you know, doing whatever they [sic] wanted to do, that I was going to file a Violation of Probation, for which I did." As noted, the initial VOP was filed against defendant on March 13, 2013 and a bench warrant was requested six days later. 2 Maher also recalled speaking to Falkenstein but did not recall when they spoke. His recollection was that Falkenstein said he was an attorney who "helped people either out of state or was trying to help [defendant] with regard to his warrant." He did not recall receiving a letter from Falkenstein. Maher also spoke to someone else regarding defendant's whereabouts, but did not recall with whom he spoke. Defendant's mother testified that she spoke to Maher when she went to the Salem County Probation Department to pay her son's fines on February 21, right after defendant left for treatment in Florida. She claimed Maher said he was "okay" with her son being in Florida. However, her husband's testimony differed. Mr. Jensen stated that when he telephoned Maher, 1 This is similar to what occurred when defendant attended the treatment program in New York. 2 Maher testified the violation was filed March 12, 2013, but the written charges included with the record have a stamped filing date of March 13,

6 close in time after his son left for Florida, to let Maher know that his son was still in Florida for treatment, Maher told him he did not give his son permission to leave New Jersey. According to Falkenstein, on the day defendant left for Florida, Mr. Jensen paid him $1000 to represent defendant. Mr. Jensen confirmed the representation, but recalled it took place a day or so after defendant left for treatment. Falkenstein testified that he informed Mr. Jensen that a VOP could be filed against his son if he went to Florida for treatment without permission. Falkenstein testified that when Mr. Jensen came to his office to retain him, he called Maher on his speaker phone in Mr. Jensen's presence. He advised Maher that he would be representing defendant if a VOP was filed against him for going to Florida for drug rehabilitation treatment. Falkenstein stated that Maher did not tell him that defendant had to return to New Jersey. Falkenstein also stated that he had two followup telephone calls with Maher advising that defendant was still in Florida, and sent Maher a letter confirming he represented defendant. Falkenstein further testified that it was not until late September 2013 when Salem County Assistant Prosecutor Bill Brennan telephoned and advised him that defendant was wanted 6

7 back in New Jersey because there was a VOP against him and a bench warrant for his arrest. In prior contact with the Salem County Sheriff's Office, he was never informed there was a warrant for defendant's arrest. Falkenstein immediately contacted Mr. Jensen, and flight arrangements were made for defendant to return to New Jersey. Within forty-eight hours, defendant, accompanied by Materia, turned himself in. On March 28, 2014, the trial court issued its bench decision that the State proved that defendant violated his probation. However, the court did not find a violation of one of the charges set forth in the VOP. The court dismissed the positive test for morphine charge and did not address the charge that defendant failed to report on February 5, Rather, the court referenced Condition Six of Conditions of Probation, which provides defendant is not permitted to leave the state without approval of his probation officer, and ruled: There is no doubt that [defendant] knew that he was not permitted to leave New Jersey, that he spoke with his [p]robation [o]fficer who told him not to leave New Jersey. I find nothing in the record to suggest any valid reason for him to leave New Jersey to get the treatment that he believed he needed. And I don't discount that he believed that he needed treatment and his family believed that he needed treatment. It was totally incredible that there was no treatment options in New Jersey. And I find that he 7

8 has failed to prove that there were no treatment options available to him in New Jersey. And even if there wasn't, the proper way - - there was a proper way to do it, and he knew he wasn't following that procedure..... So I find that [defendant] violated the condition of his probation that prohibited him from leaving the State. The court further found that Falkenstein did not represent defendant because he never entered an appearance on defendant's behalf. The court also reconsidered its earlier determination that the initial VOP should have been dismissed because it was not served on defendant. The court reasoned that since defendant could not be served as he was a fugitive from the State for a substantial time, it should have recessed the November 13 hearing to allow the initial VOP to be served. Even so, the refiling of the VOP nullified any problem. The court rejected defendant's argument that the VOP charges against him should be dismissed because probation guidelines calling for escalating sanctions were not followed. The court stated: [Defendant] left the state and there was no way to do any escalating sanctions. There was no way for [] Maher to take any steps to do anything for defendant because [defendant] and his family, quite frankly, didn't give [Maher] the chance to do so. 8

9 The court, however, agreed with defendant that he should not be found guilty of a positive morphine test for technical reasons. The court ruled: there's a suggestion that the first positive urine is stale and... shouldn't be considered by this [c]ourt in this violation. And I agree to the extent that [the] first positive urine, if that had been the only basis for a violation that was filed this far afterwards, I think I would look at it differently. My primary focus is on [defendant's] conduct in February 2013 time frame and not in the May 2012 time frame. In sentencing defendant, the Court found that the aggravating factors outweighed the mitigating factors, and sentenced defendant to forty months. Defendant's appeal followed. On appeal, defendant raises three arguments to reverse the trial court's decision that he violated his probation. The first is that the court abused its discretion by finding defendant violated his probation without factual support. Second, defendant argues that the probation officer violated his due process rights by not following administrative guidelines. The third is that the court abused its discretion by not considering defendant's reliance on his attorney's advice to remain in drug treatment in Florida. However, we need not address any of these arguments as we conclude that defendant's 9

10 due process rights were violated because the trial court found him in violation based upon conduct for which was not charged. It is well settled that a probation revocation hearing requires due process as a defendant may suffer a loss of liberty. State v. Jenkins, 299 N.J. Super. 61, 73 (App. Div. 1997). Our legislature has set forth procedures in the Code of Criminal Justice that govern probation and revocation of probation. State v. Lavoy, 259 N.J. Super. 594, 601 (App. Div. 1992). In accordance with N.J.S.A. 2C:45-4, a defendant must receive actual notice of the VOP charges and an opportunity to be heard prior to the revocation proceeding in order for due process to be satisfied. State v. Nellom, 178 N.J. 192, (2003). The statute provides, The court shall not revoke a suspension of sentence or probation or delete, add or modify conditions of probation except after a hearing upon written notice to the defendant of the grounds on which such action is proposed. The defendant shall have the right to hear and controvert the evidence against him, to offer evidence in his defense, and to be represented by counsel. [N.J.S.A. 2C:45-4 (emphasis supplied).] Although written notice of a probation violation is a statutory requirement, we have upheld a trial court's VOP finding where notice of all alleged violations were not provided in the charges. In State v. Frank, 280 N.J. Super. 26, 33 (App. 10

11 Div. 1995), where the formal VOP charges were limited to defendant making unauthorized trips to Florida, we concluded that there was no due process violation when the trial court also found a violation for the uncharged accusation of failing to divest in proscribed businesses "as grounds for revocation by virtue of the State's affidavits [that were] served upon defendant long before the violation hearing." We added, "[t]here can be no question that defendant was given adequate notice, well before the violation hearing was actually conducted, that the State was seeking revocation of her probation because defendant did not divest herself of her business interests in addition to the unauthorized travel." Id. at Our careful review of the record leads us to conclude that defendant was not given actual notice that his probation was sought to be revoked because he left the state without permission. Defendant was charged with missing one meeting with his probation officer on February 5, In fact, he notified his probation officer that he would not attend the meeting because he was entering drug treatment in Florida. However, as noted, the court did not render a decision on that violation. Unlike in Frank, the record does not reveal that defendant was informed prior to the hearing that he faced a VOP charge for 11

12 leaving New Jersey without permission. Although the VOP charges alleged that defendant's whereabouts were unknown, there was no mention of him leaving the state without permission. Moreover, defendant was not served with a VOP Summary as required by Administrative Directive 7-08, Adult Violation of Probation Guidelines (February 27, 2008), subsection III (3), available at which should have informed him of "the probation officer's efforts to secure [his] compliance with the court order and/or serves as a summary for sentencing purposes...." Thus, the VOP Summary could have put him on notice that he was being charged for leaving the state without permission. While the VOP hearing revealed defendant presented evidence regarding his decision to leave New Jersey to enter into drug treatment to "save his life," we cannot conclude that the evidence defendant presented would have been the same had he actually been notified that he was being charged with leaving the state without permission. In sum, defendant's due process rights were violated when he was found guilty of conduct not set forth in the VOP charge. Reversed. 12