SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2073-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL C. SCHARLOO,

Defendant-Appellant.

________________________

Submitted December 14, 2020 – Decided February 3, 2022

Before Judges Messano and Smith.

On appeal from the Superior Court of New Jersey, Law 

Division, Middlesex County, Indictment No. 18-05-

0762.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Melanie K. Dellplain, Assistant Deputy 

Public Defender, of counsel and on the briefs).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Sarah C. Hunt, Deputy Attorney General, 

of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE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.
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The opinion of the court was delivered by

SMITH, J.A.D.

A grand jury indicted defendant for first-degree armed robbery, N.J.S.A. 

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

(count two); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-4(d)

(count three); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-

5(d) (count four); and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3) 

(count five). On June 22, 2018, defendant pled guilty to second-degree robbery,

and all other charges were dismissed by the court at that time. 

On December 6, 2018, defendant appeared before a different judge for 

sentencing. The judge denied defendant's application for entry into drug court 

and then sentenced defendant to eight years' incarceration, subject to NERA.

Defendant appeals, arguing that the judge erred by incorporating the 

weapon element of the dismissed first-degree robbery charge into his reasons 

for rejecting the drug court application. In the alternative, defendant argues that 

even if we affirm the denial of defendant's entry into drug court, remand is still 

appropriate because the sentencing court failed to properly weigh the 

aggravating and mitigating circumstances. We do not reach the second issue 
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because we agree that defendant's drug court application was rejected by the 

sentencing judge on impermissible grounds for the reasons set forth below. 

We summarize the relevant facts. Defendant was apprehended after his

failed attempt to rob a gas station convenience store. He entered the store, 

brandished a knife, and demanded that the store clerk give him money from the 

cash register. He was so intoxicated that the store clerk was able to walk out of 

the store and lock defendant inside until police arrived. In his intoxicated state, 

defendant attempted to open the locked door from the inside by striking it with 

his knife and, when police did respond, he held the knife to his own throat, 

threatening to harm himself. When the police could not persuade him to put 

down the knife, they used a taser to try to disarm him, but, the record shows, the 

taser had no effect due to defendant's intoxicated condition. No store employees 

or patrons sustained any injuries during the robbery.

Defendant pled guilty on June 22, 2019. At the plea allocution, the 

following exchange took place between defendant, his counsel, and the State: 

Counsel: So Michael, on that day, were you in 

Sayreville, March 10th, of 2018? 

Defendant: Yes, Your Honor. 

Counsel: And on that day, did you enter a convenience 

store? 
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Defendant: Yes. 

Counsel: And in entering that convenience store, did 

you attempt to put one of the employees . . . in fear of 

bodily injury? 

Defendant: Yes.

Counsel: And that was for the purpose of being able to 

commit a theft from the store? 

Defendant: Yes. 

Counsel: You wanted some access to the money in the 

register? 

Defendant: Yes. 

State: Satisfied, Your Honor.

Defendant applied to drug court pursuant to N.J.S.A. 2C:35-14, and the 

record shows the State took no position as to his application. Defendant argued 

at sentencing that his extensive criminal history was fueled by his long-time 

drug addiction. He acknowledged that he had previously been admitted to drug 

court, but he was unsuccessfully discharged. He acknowledged a prior weapons 

possession conviction as a juvenile, but he argued that he had committed no 

crimes of violence against anyone. He sought another opportunity to complete 

drug court. The State argued that defendant was a danger to the community, 
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noting for the court that defendant went to the gas station convenience store with 

a "large kitchen knife," brandishing it as he demanded money from the clerk. 

The sentencing judge, reviewing the pre-sentence report. found that 

"defendant attempted to rob a . . . gas station with a twelve-inch butcher knife," 

telling the clerk to, "give me your money." After noting that the clerk locked 

defendant in the store, the judge found defendant "tried to open the door by 

punching and stabbing." He found defendant refused to drop the knife when 

ordered to do so by police. 

The judge reviewed defendant's criminal history:

As far as his criminal history, he has one juvenile 

adjudication for possession, drug possession, 

marijuana, one deferred disposition possession of a 

weapon and CDS related. Municipal convictions three, 

possession of CDS prowling and possession with intent

to use drug paraphernalia. One local ordinance 

violation. Four Superior Court violations, CDS 

possession twice, unlawful possession of a weapon, 

conspiracy[,] and burglary. Also[,] one DP conviction 

for theft by unlawful taking[,] as well as the matter that 

we’re here for. 

Next, the judge found defendant's substance abuse assessment diagnosed him 

with severe heroin use disorder, severe alcohol use disorder, severe sedative use 

disorder, severe cocaine use disorder, and mild hallucinogen disorder. The 

judge found defendant was classified Track 1 for purposes of his drug court 
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application. In assessing whether defendant was a danger to the community, the 

sentencing judge stated:

[I] look at not just the charge that [defendant] pled 

guilty to, I can’t deny somebody because it was a 

second-degree robbery charge. I have to look much 

closer and look at the totality of the circumstances. And 

when I do that, I don’t believe that the community 

would be safe if I were to allow this defendant into the 

drug court program . . . .

The judge noted that defendant had previously failed to complete drug court and 

that defendant could suffer a relapse if he were admitted into drug court again. 

After reviewing defendant's criminal history, finding that defendant was at risk 

of relapse, and concluding that defendant was prone to what he described as 

"these types of violent acts," the sentencing judge found him to be a danger to 

the community. The judge rejected defendant's application and sentenced him 

to prison. Defendant appealed. 

"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 to public safety.'" State v. Meyer, 192 N.J. 421, 428

(2007) (citing Administrative Office of the Courts, Manual for Operation of

Adult Drug Courts in New Jersey (July 2002)). There are two general ways to

be admitted to drug court. See State v. Maurer, 438 N.J. Super. 402, 413 (App.
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Div. 2014). Defendants admitted to drug court who are subject to sentencing

with a presumption of incarceration and who satisfy the nine separate factors

embodied in N.J.S.A. 2C:35-14(a), are assigned to Track 1 and required to serve

a period of "special probation" pursuant to N.J.S.A. 2C:35-14(a). Ibid.

Defendants with drug abuse problems who are not subject to a presumption of 

incarceration are assigned to Track 2 and are eligible for drug court under the 

general sentencing provisions of the Criminal Code pursuant to N.J.S.A. 2C:45-

2. Ibid. (citing State v. Clarke, 203 N.J. 166, 174-76 (2010)).

In determining whether to sentence a defendant to special probation,

the court shall consider all relevant circumstances, and 

shall take judicial notice of any evidence, testimony or 

information adduced at the trial, plea hearing or other 

court proceedings, and shall also consider the 

presentence report and the results of the professional 

diagnostic assessment to determine whether and to 

what extent the person is drug or alcohol dependent and 

would benefit from treatment.

[N.J.S.A. 2C:35-14(a).]

Defendant argues that the sentencing judge erred by improperly 

considering a factual element of the dismissed first-degree robbery charge in the 

process of denying defendant admission into drug court. Defendant points out 

that he pled guilty to second-degree robbery, which does not contain use of a 

weapon as an element of the crime, and never admitted during allocution to 
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using a weapon. Given that he did not plead guilty to first-degree robbery, 

defendant's position is that he "retained the presumption of innocence" with 

respect to that charge. State v. Melvin, 248 N.J. 321, 350 (2021). He contends 

that his rejection from drug court, on these facts, violated his "federal and state 

constitutional rights to due process and fundamental fairness." Id. at 339. We 

agree.

There is no dispute as to the factual record at defendant's sentencing, 

consequently we see no need to conduct a deferential review of the judge's factfinding and credibility assessments. Instead, we look to Melvin, the recently 

decided Supreme Court case, and its companion, State v. Paden-Battle,

1 for 

guidance. In each case, the Court held that the due process principles inherent 

in Article I, paragraph 1 of the New Jersey Constitution and the doctrine of 

fundamental fairness protected the defendant from a sentencing judge's 

improper use of facts related to charges for which the defendant was acquitted. 

Melvin, 248 N.J. at 347-52 (citing State v. Njango, 247 N.J. 533, 537 (2021)).

In this matter, there is no jury acquittal, however, defendant pled guilty to 

a second-degree robbery charge, with first-degree robbery and corresponding 

1 The Supreme Court's consolidated both cases in one opinion. See 248 N.J.

321.
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weapons charges dismissed by the court. We discern no constitutionally 

significant distinction between the judge's dismissal of first-degree robbery 

charges against defendant at the time of his plea, and jury acquittal on weapons 

possession and murder charges against Melvin and Paden-Battle. In each case 

the sentencing court used portions of the factual record for which the defendant 

had not been found guilty or pleaded guilty to reach the outcome. "[S]uch a 

practice defies the principles of due process and fundamental fairness." Id. at 

349. 

In its merits brief, the State argues that the sentencing judge was "not 

limited only to the factual admissions that comprise the basis for the plea," State 

v. Fuentes, 217 N.J. 57, 72 (2014), and that for purposes of sentencing, "neither 

the defendant nor his offense should be fictionalized for purposes of sentenc

[ing]." State v. Marzolf, 79 N.J. 167, 180 (1979). It further argues that the judge 

properly considered the "totality of the circumstances: defendant's personal and 

criminal history and the full context of defendant's actions." It posits that the 

"full context" includes "consideration of facts beyond those [facts] defendant 

specifically admitted in his plea colloquy – namely, [defendant's] possession and 

brandishing of a knife during the robbery." We disagree. 
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To accept the State's argument would take defendant's guilty plea to 

second-degree robbery and make it "a mere preliminary to a judicial inquisition 

into the facts of the crime that the state actually [sought] to punish . . . ." Melvin, 

248 N.J. at 350 (citing Blakely v. Washington, 542 U.S. 296, 306 (2004)). Such 

a position is contrary to the due process and fundamental fairness principles 

outlined at length in Melvin. Consequently, we remand for resentencing.

Because we remand for resentencing on defendant's application to drug court, 

we do not reach his excessive sentence arguments. Any arguments not 

addressed here are without sufficient merit to warrant discussion in a written 

opinion. R. 2:11-3(E)(2). 

We vacate the judgment of conviction and remand for proceedings 

consistent with this opinion. We do not retain jurisdiction.