SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5777-17T3

STATE OF NEW JERSEY,

Plaintiff-Respondent, 

v. 

THOMAS A. HAWKINS, 

Defendant-Appellant. 

_______________________

Argued May 15, 2019 – Decided June 21, 2019

Before Judges Koblitz, Currier and Mayer.

On appeal from Superior Court of New Jersey, Law 

Division, Middlesex County and Hudson County, 

Indictment Nos. 12-02-0380 and 11-08-1383.

Whitney Faith Flanagan, Assistant Deputy Public 

Defender, argued the cause for appellant (Joseph E. 

Krakora, Public Defender, attorney; Molly O'Donnell 

Meng, Assistant Deputy Public Defender, of counsel 

and on the brief).

Alexander R. Shalom argued the cause for amicus 

curiae American Civil Liberties Union of New Jersey 

Foundation (ACLU-NJ) (Alexander R. Shalom, 

NOT FOR PUBLICATION WITHOUT THE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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attorney; Alexander R. Shalom, Edward Leon Barocas, 

and Jeanne M. LoCicero, on the briefs).

Adam David Klein, Deputy Attorney General, argued 

the cause for respondent (Gurbir S. Grewal, Attorney 

General, attorney; Adam David Klein, of counsel and 

on the brief). 

PER CURIAM

Defendant Thomas Hawkins appeals from a sentence of eight years in 

prison with forty months of parole ineligibility for a second-degree crime after 

repeatedly violating special Drug Court probation, N.J.S.A. 2C:35-14(a). He 

argues that the imposition of the eight-year custodial sentence after serving 

almost five years of special probation was an unconstitutional judicial extension 

of the statutory ten-year maximum custodial sentence, contrary to Apprendi v. 

New Jersey, 530 U.S. 466, 490 (2000). We reject this argument and affirm.

Defendant pled guilty in Hudson County to second-degree possession of 

phencyclidine (PCP) with the intent to distribute, N.J.S.A. 2C:35-5(b)(7), and 

third-degree possession of PCP with the intent to distribute within 1000 feet of 

a school, N.J.S.A. 2C:35-7, from two separate indictments. Both crimes 

occurred in Jersey City, Hudson County. Pursuant to N.J.S.A. 2C:43-6(f), 

defendant was eligible for a mandatory extended term based on a prior drug 

conviction.
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The parties agreed that if defendant was found ineligible for Drug Court, 

he would be allowed to retract his guilty plea. They also agreed that if he 

proceeded with the guilty plea without Drug Court, the State would seek an 

eight-year term of imprisonment with forty-eight months of parole ineligibility. 

The judge explained to defendant that he would be reevaluated for Drug Court 

and, if eligible, would have to accept the recommended treatment modality or 

face a prison term.

At sentencing in April 2012, the judge told defendant that his maximum 

prison exposure if he violated probation would be ten years in prison with a 

mandatory minimum of five years. The judge then found aggravating factors 

three, the risk defendant will commit another offense; six, the extent of 

defendant's prior criminal record; and nine, the need to deter defendant and 

others. N.J.S.A. 2C:44-1(a)(3), (6), (9). She also found mitigating factor ten, 

that defendant was particularly likely to respond to probationary treatment. 

N.J.S.A. 2C:44-1(b)(10). The judge determined that the aggravating and 

mitigating factors were "equal" and sentenced defendant to four years of Drug 

Court, articulating the usual and special conditions of probation.

The special Drug Court probation supervision was transferred to 

Middlesex County, where defendant lived. In May 2016, four years later, 
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defendant appeared before a Middlesex County judge and pled guilty to 

violating the conditions of his special probation. His probation was extended an 

additional year. The judge warned defendant that if he violated the terms of 

probation again, he would be incarcerated.

In March 2017, approximately one month before the end of his extended 

probation, after a contested evidentiary hearing, the same Middlesex County 

judge found that defendant had violated special probation by using PCP 

repeatedly and otherwise not fully cooperating with Drug Court. The judge 

terminated defendant's probation and sentenced him to eight years in prison with 

a four-year period of parole ineligibility.

 After defendant appealed his sentence, we remanded the matter and 

directed "the trial court to provide a detailed statement of reasons for imposing 

the sentence under review, and to amend the judgment of conviction 

accordingly." We added: "With the consent of the State, the defendant shall 

also be afforded the opportunity to speak at resentencing."

Judge Jones, who was not the original violation of probation (VOP)

sentencing judge, resentenced defendant to eight years in prison with a reduced, 

forty-month period of parole ineligibility. With the ACLU-NJ appearing as 

amicus curiae, the judge denied defendant's motion to correct an illegal sentence.
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Defendant raises the following issue on appeal:

POINT I: NEW JERSEY'S PROBATION 

REVOCATION STATUTE ALLOWS A JUDGE TO 

ENGAGE IN FACT-FINDING THAT RESULTS IN A 

SENTENCE ABOVE THE STATUTORY MAXIMUM 

AND SO VIOLATES THE SIXTH AMENDMENT OF 

THE UNITED STATES CONSTITUTION.

We review a trial court's legal or statutory interpretation de novo. State 

v. Grate, 220 N.J. 317, 329 (2015). Similarly, we review a post-conviction relief 

court's legal conclusions de novo. State v. Nash, 212 N.J. 518, 540-41 (2013). 

One ground for post-conviction relief is an illegal sentence. R. 3:22-2(c). An 

illegal sentence is one that is unconstitutional or not authorized by the Code of 

Criminal Justice. See State v. Hyland, ___ N.J. ___, ___ (2019) (slip op. at 9-

10); R. 3:21-10(b)(5).

"The Sixth Amendment jury trial guarantee and the Fourteenth 

Amendment Due Process Clause confer to every criminal defendant not only the 

right to have 'the truth of every accusation' proven to a jury of his 'equals,' but 

also the 'right to have the jury verdict based on proof beyond a reasonable 

doubt.'" State v. Natale, 184 N.J. 458, 473 (2005) (quoting Apprendi v. New 

Jersey, 530 U.S. 466, 477-78 (2000)). Therefore, "[i]f a State makes an increase 

in a defendant's authorized punishment contingent on the finding of a fact, that 

fact—no matter how the State labels it—must be found by a jury beyond a 
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reasonable doubt." Ibid. (quoting Ring v. Arizona, 536 U.S. 584, 602 (2002)) 

(alteration in original). In determining what facts must be found by a jury, "the

relevant inquiry is one not of form, but of effect—does the required finding 

expose the defendant to a greater punishment than that authorized by the jury's 

guilty verdict?" Ibid. (quoting Apprendi, 530 U.S. at 494).

In Apprendi, the United States Supreme Court held that "[o]ther than the 

fact of a prior conviction, any fact that increases the penalty for a crime beyond 

the prescribed statutory maximum must be submitted to a jury, and proved 

beyond a reasonable doubt." 530 U.S. at 490. The Court found that New Jersey's 

hate crime statute, which authorized a sentencing court to impose an "extended 

term" sentence if it found, by a preponderance of the evidence, that the defendant 

committed the crime "with a purpose to intimidate an individual or group of 

individuals," violated a defendant's Fourteenth Amendment due process rights. 

Id. at 468-69, 491-93. Sentencing courts still have discretion, however, to 

"tak[e] into consideration various factors relating both to offense and offender 

[when] imposing a judgment within the range prescribed by statute." Id. at 481.

Four years later, the United States Supreme Court refined its holding in 

Apprendi, and held "that the 'statutory maximum' . . . is the maximum sentence 

a judge may impose solely on the basis of the facts reflected in the jury verdict 
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or admitted by the defendant." Blakely v. Washington, 542 U.S. 296, 303

(2004). Our Supreme Court held that "without reference to presumptive terms, 

judges will sentence defendants within the statutory range after identifying and 

weighing the applicable mitigating and aggravating factors." Natale, 184 N.J. 

at 466. In a companion case, the Court held that procedures under the code that 

allowed a trial court "to sentence a defendant to a period of life imprisonment 

for murder, to a period of parole disqualification . . . and to consecutive 

sentences for multiple convictions [did] not run counter to the Sixth 

Amendment." State v. Abdullah, 184 N.J. 497, 499 (2005).

In Thomas, our Supreme Court held that the "imposition of a mandatory 

enhanced sentence under N.J.S.A. 2C:43-6(f)" based on the "sentencing court's 

finding of the fact of defendant's prior convictions," did not violate the 

defendant's Sixth Amendment right to a jury trial. State v. Thomas, 188 N.J. 

137, 152 (2006). The Court determined that "N.J.S.A. 2C:43-6(f) operates as a 

sentence enhancer on the basis of a judicial fact-finding that is authorized under 

Apprendi and Blakely, to wit, the finding of prior convictions." Id. at 151-52.

Here, defendant argues that his sentence violates the principles articulated 

in Apprendi and its progeny and is therefore unconstitutional. Defendant was 

sentenced to eight years in prison with a forty-month period of parole 
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ineligibility for second-degree possession with intent to distribute CDS after 

violating the terms of his special Drug Court probation for a second time. 

Defendant argues that his total sentence of approximately thirteen years of 

combined prison and probation is unconstitutional because it exceeds the 

statutory maximum sentence of a ten-year period of incarceration, and was 

imposed after judicial, rather than jury, fact-finding.

In a recent case, we determined that probation was not confinement for 

purposes of determining, under the persistent offender statute N.J.S.A. 2C:44-

3(a), whether the defendant had been released from confinement within ten years 

preceding the instant offense. State v. Clarity, 454 N.J. Super. 603, 606, 611 

(App. Div. 2018). We also found that the later consequences of a VOP are part 

of the corrections process, "not a separate prosecution and conviction." Id. at 

613 (citing N.J.S.A. 2C:43-7).

Defendant argues that the applicable probation revocation statute, 

N.J.S.A. 2C:35-14(f), is unconstitutional because it allows the VOP court, after 

non-jury fact-findings, to sentence a defendant to the maximum custodial 

sentence in addition to the time spent on probation. Here, the statutory 

maximum without an extended term was ten years in prison. After the VOP, 

defendant received a sentence of eight years in prison plus almost five years of 
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probation. Defendant argues that absent a measuring device to compare the 

severity of a year of probation to a year in prison, we should value them as 

equally severe.

Defendant points out that the probation revocation statute states that a 

defendant "shall receive credit for any time served in custody pursuant to 

N.J.S.[A.] 2C:45-1 or while awaiting placement in a treatment facility . . . and

for each day during which the person satisfactorily complied with the terms and 

conditions of special probation while committed . . . to a residential treatment 

facility." N.J.S.A. 2C:35-14(f)(4). Because this statute does not provide

incarceration credit for the time spent on special probation outside a residential 

treatment facility, defendant claims he is required to serve more than the 

maximum allowable sentence.

Defendant distinguishes his sentence from that discussed in a recent 

Supreme Court decision, State v. Kiriakakis, 235 N.J. 420 (2018). In Kiriakakis, 

the Court held that a mandatory minimum period of parole ineligibility "fell 

within the range authorized by the jury's verdict and therefore did not violate 

[Alleyne v. United States, 570 U.S. 99 (2013)] or the Sixth Amendment." Id. at 

425. The Court concluded that under Alleyne, trial courts are permitted, "in the

exercise of their discretion, to take into consideration various factors relating 
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both to the offense and offender 'in imposing a judgment within the range

prescribed by statute.'" Ibid. (quoting Alleyne, 570 U.S at 116). Defendant 

maintains that, unlike defendant Kiriakakis, his sentence was not within the 

statutory range authorized for a second-degree offense, because on the date of 

his original sentence, the trial court would not have been allowed to sentence 

him to incarceration for thirteen years, the sum of five years of probation and 

eight years in prison. Defendant asserts: "That increased penalty is made 

possible only by later judicial fact-finding." Amicus ACLU-NJ also argues that 

defendant's sentence violated the Sixth Amendment because the judge relied 

upon facts not found by a jury or admitted by defendant to increase defendant's 

sentence beyond the statutory maximum, in violation of Apprendi and Blakely.

If we accept the defense argument, it follows that a VOP judge may either 

conduct a jury trial or credit a defendant with the years served on probation 

against the possible maximum prison term. We could then either reduce 

defendant's custodial sentence to five years in prison, or remand for a VOP jury 

trial.

The statutory maximum for a sentence, however, includes the statutes that 

allow a special probation sentence followed by a revocation of that special 

probation. The statutory scheme delineates that the maximum custodial 
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sentence for a second-degree crime is ten years in prison, unless a defendant 

applies for and is accepted into special Drug Court probation, in which case he 

may receive a sentence of five years of Drug Court with the risk of spending ten 

years in prison if he violates that special probation, with credit given for time 

spent in jail or inpatient treatment.

Judge Jones adhered to the statutory requirements of the applicable 

probation revocation statute, N.J.S.A. 2C:35-14(f)(4), which directs the court to 

"impose any sentence that might have been imposed, or that would have been 

required to be imposed, originally for the offense for which [defendant] was 

convicted." Under State v. Baylass, 114 N.J. 169, 176-77 (1989), the judge also 

properly applied the same aggravating factors as the original sentencing judge, 

and determined that mitigating factor ten, amenability to probation, no longer 

existed.

Because we do not accept that a year of probation is equal to a year of 

incarceration, or that eight years in prison plus five years of probation is greater 

than ten years in prison, we do not accept the premise that defendant received a 

sentence greater than the maximum permissible for a second-degree crime when 

probation is not imposed. "[P]robation time cannot be converted into prison 

time with any mathematical precision." United States v. Gordon, 961 F.2d 426, 
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432-33 (3d Cir. 1992), cited with approval in United States v. Granderson, 511 

U.S. 39, 47 (1994). See also State v. Evers, 368 N.J. Super. 159, 173 (App. Div. 

2004) (finding "[p]robation is not the same as incarceration," and therefore the 

"defendant [was] not entitled to credit for time served on probation because his 

probation was not as restrictive and confining as a custodial sentence."). 

Moreover, special Drug Court probation is an extraordinary rehabilitative 

opportunity for a defendant who would otherwise face a presumption of 

incarceration. See State v. Meyer, 192 N.J. 421, 434-35 (2007).

We should not decide constitutional issues unless it is necessary to resolve

the case before us. O'Keefe v. Passaic Valley Water Comm'n, 132 N.J. 234, 240 

(1993). Thus, we affirm without ruling directly on the issue raised by defendant

and supported by amicus.

Affirmed.