SYLLABUS
(This syllabus is not part of the opinion of the Court. It has
been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not
have been summarized).
Argued October 8, 2003 -- Decided December 17, 2003
LONG, J., writing for a unanimous Court.
The question presented in this appeal is whether the issuance of an arrest warrant for a violation of probation constitutes “commencement” of a revocation proceeding that tolls the probationary period under N.J.S.A. 2C:45-3c.
In 1995, Richard Nellom entered a plea of guilty to third-degree receipt of stolen property. In exchange, the State recommended probation. At sentencing, the trial court imposed a three-year probationary term that was to terminate in 1998, along with mandatory fees and penalties.
When Nellom failed to pay his financial obligations, the trial court ordered him to appear on May 30, 1996. He did not do so and the court issued a bench warrant for his arrest. The arrest record suggests that prior to the ordered appearance, Nellom had relocated out of State. He was arrested several times in North Carolina between May 1996 and July 1999, and twice in New York in late 2000.
The court issued an arrest warrant for Nellom on November 4, 1996, for violating the terms of probation, based on his continued failure to report. Nellom remained at large until his arrest on January 11, 2001, at which time the court set bail and the outstanding warrant was vacated. Two weeks later, on January 25, 2001, the probation department filed and served on Nellom a document entitled a “Violation of Probation – Statement of Charges.” That document alleged that Nellom had neglected to report to the probation office as directed and failed to pay court-imposed financial obligations.
Nellom filed a motion to dismiss, claiming that the statement of charges was untimely because it was not filed prior to the expiration of the probationary term. The trial court denied the motion, concluding that the issuance of the arrest warrant in November 1996 constituted “commencement” of probation revocation proceedings within the meaning of N.J.S.A. 2C:45-3c and thus tolled the probationary period.
Nellom entered a plea of guilty to the violation of probation charge. He acknowledged that he failed to report to his probation officer as required, and remained a fugitive thereafter, and that he was not paying the monetary penalties that had been imposed. On May 22, 2001, the trial court vacated Nellom’s probation and sentenced him to a custodial term of three years on the original charge of receiving stolen property.
The Appellate Division affirmed on appeal, holding that Nellom was barred by his unconditional plea from challenging the temporal validity of the violation of probation proceedings. It also held that the trial court had jurisdiction to accept Nellom’s plea even if the commencement of the proceedings was untimely. The Supreme Court granted Nellom’s petition for certification.
HELD: The filing of an arrest warrant is one valid method to commence probation revocation proceedings and thus toll the probationary period.
1. On its face, N.J.S.A. 2C:45-3 provides that probation revocation proceedings must be commenced within the probationary period. Likewise, the statute is clear that commencement of probation revocation proceedings tolls the probationary period until the proceeding is terminated. What the statute does not say in so many words is exactly what constitutes “commencement.” The statute does set forth actions that may be taken against an errant probationer prior to the end of the probation period. The court may summon the defendant to appear or issue a warrant for his arrest. In addition, a probation officer or peace officer may arrest the probationer if the officer has probable cause to believe he has violated his probation or committed another offense. These initiatives are intended to notify defendant that he is being charged with violating probation and to bring him before the court. Although not specifically denominated as such, those authorized initiatives are obviously what were being referenced in the tolling section of the statute. (pp. 5-8)
2. Several Appellate Division decisions shed light on the question of commencement for tolling purposes. With one exception, these cases recognize that commencement for tolling must be an act that is statutorily authorized. At the heart of the scheme is the notion that a probation revocation proceeding is commenced when formal processes to notify defendant and bring him or her before the court are set in motion. The legislature has declared that that occurs when the court issues an arrest warrant or summons a defendant to appear or when a defendant is arrested without a warrant thus precipitating a court proceeding. The Appellate Division decision holding that the mere filing of a violation of probation notice, without more, is sufficient for tolling, is disapproved. (pp. 8-13)
3. Nellom argues that the proceedings were defective because he was entitled to “actual” notice of his violation within the probationary period. To be sure, defendants charged with a violation of probation must be accorded due process. N.J.S.A. 2C:45-4 requires notice and a hearing before revocation of probation or modification of the conditions of probation. However, it does not mandate a timeframe for the provision of defendant’s due process rights. The only temporal limitation is that the notice be given as soon as possible and in sufficient time to allow a defendant to prepare and launch a defense. Nellom’s reading of the statute - that notice must be “effected” within the probationary term - would reward an absconder who moves without leaving a forwarding address, in contravention of the conditions of probation. Such an individual could thus thwart service, allowing the probationary term to expire, and avoid not only the conditions imposed by the sentencing court but a revocation proceeding as well. That is not what the statute intends. So long as formal action authorized by the statute including the issuance of a warrant or summons or the arrest of the defendant occurs prior to the expiration of the period of probation, that period is tolled under N.J.S.A. 2C:45-3c. (pp. 13-15)
Judgment of conviction is AFFIRMED. This ruling makes it unnecessary for the Court to address the procedural issues relied on by the Appellate Division.
CHIEF JUSTICE PORITZ and JUSTICES VERNIERO, LaVECCHIA, ZAZZALI, ALBIN and WALLACE join in JUSTICE LONG’s opinion.
SUPREME COURT OF NEW JERSEY
A- 55 September Term 2002
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RICHARD NELLOM,
Defendant-Appellant.
Argued October 8, 2003 – Decided December 17, 2003
On certification to the Superior Court, Appellate Division, whose opinion is reported at
354 N.J. Super. 485 (2002).
Daniel V. Gautieri, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne
Smith Segars, Public Defender, attorney).
James L. McConnell, Assistant Prosecutor, argued the cause for respondent (Wayne J. Forrest,
Somerset County Prosecutor, attorney).
Johanna Barba, Deputy Attorney General, argued the cause for amicus curiae, Attorney General
of New Jersey (Peter C. Harvey, Attorney General, attorney).
JUSTICE LONG delivered the opinion of the Court.
On this appeal, we have been asked to construe N.J.S.A.
2C:45-3c, a statute that provides for the tolling of a probationary period upon
“commencement” of a revocation proceeding. The question presented is whether the issuance of
an arrest warrant for a violation of probation constitutes “commencement” for tolling purposes
under the statute. We hold that the filing of an arrest warrant is
one valid method to commence probation revocation proceedings and thus toll the relevant
probationary period.
I
In 1995, defendant Richard Nellom entered a plea of guilty to third-degree receipt
of stolen property, contrary to N.J.S.A. 2C:20-7a. In exchange, the state recommended probation.
At sentencing, the trial court imposed a three-year probationary term which was to
terminate in 1998, along with mandatory fees and penalties, and a driver’s license
revocation.
When Nellom failed to pay his financial obligations, the trial court ordered him
to appear on May 30, 1996. He did not do so and the
court issued a bench warrant for his arrest. Nellom’s arrest record suggests that
prior to that ordered appearance, he had relocated out of state. He was
arrested several times in Mecklenburg, North Carolina between May 1996 and July 1999
and twice in Newburgh, New York in late 2000.
When Nellom continued to fail to report, the court vacated the bench warrant
and issued an arrest warrant for him on November 4, 1996 for violating
the terms of his probation. Nellom remained at large until his arrest on
January 11, 2001, at which time the court set bail and the outstanding
warrant was vacated. Two weeks later, on January 25, 2001, the probation department
filed and served on Nellom a document entitled “Violation of Probation – Statement of
Charges.” That document alleged that Nellom had neglected to report to the probation
office as directed between April 10 and November 10, 1996 and that he
failed to pay court-imposed financial obligations.
Nellom filed a motion to dismiss, claiming that the violation of probation Statement
of Charges was untimely because it was not filed prior to the expiration
of his probationary term. According to Nellom, because the probation department failed to
file the statement of charges until January 25, 2001, more than five years
after his three-year probation commenced, the action could not be pursued. The trial
court denied the motion to dismiss, concluding that the issuance of the arrest
warrant in November 1996 constituted “commencement” of probation revocation proceedings within the meaning
of N.J.S.A. 2C:45-3c and thus tolled the probationary period.
On April 20, 2001, Nellom entered a plea of guilty to the violation
of probation charge. In so doing, he acknowledged that he failed to report
to his probation officer from April 10, 1996 to November 10, 1996, that
he remained a fugitive thereafter, and that he was not paying the monetary
penalties that had been imposed. On May 22, 2001, the trial court vacated
Nellom’s probation and sentenced him to a custodial term of three years on
the original charge of receiving stolen property.
Nellom appealed and the Appellate Division affirmed, holding that, as a procedural matter,
Nellom was barred by his unconditional plea from challenging the temporal validity of
the violation of probation proceedings and that the trial court had jurisdiction to
accept that plea even if the commencement of the proceedings was untimely. State
v. Nellom,
354 N.J. Super. 485 (App. Div. 2002). We granted Nellom’s petition
for certification, State v. Nellom,
175 N.J. 432 (2003), and now affirm the
judgment of the Appellate Division, although on different grounds.
II
Nellom reiterates the arguments he made before the Appellate Division: that the violation
of probation proceedings were untimely because they were not commenced during the probationary
term, and that his plea of guilty was not a waiver of that
jurisdictional challenge. The prosecutor counters that the probation violation proceedings were commenced in
a timely manner by way of the issuance of the November 4, 1996
arrest warrant, and that, in any event, Nellom’s entry of an unconditional plea
bars his claim.
The Attorney General, as amicus curiae, essentially agrees with the prosecutor but raises
additional arguments; that a probationary term does not expire where a defendant has
failed to satisfy a condition of the probation; that Nellom’s fugitive status precludes
him from raising the issue of the timeliness of the probation department’s filing;
and that the limitations’ provision in the statute is a defense and not
a matter of jurisdictional consequence.
III
In deciding the issue in this case, we look directly to the relevant
statute:
Summons or arrest of defendant under suspended sentence or on probation; commitment without
bail; revocation and resentence
a. At any time before the discharge of the defendant or the termination
of the period of suspension or probation:
(1) The court may summon the defendant to appear before it or may
issue a warrant for his arrest;
(2) A probation officer or peace officer, upon request of the chief probation
officer or otherwise having probable cause to believe that the defendant has failed
to comply with a requirement imposed as a condition of the order or
that he has committed another offense, may arrest him without a warrant;
(3) The court, if there is probable cause to believe that the defendant
has committed another offense or if he has been held to answer therefor,
may commit him without bail, pending a determination of the charge by the
court having jurisdiction thereof;
(4) The court, if satisfied that the defendant has inexcusably failed to comply
with a substantial requirement imposed as a condition of the order or if
he has been convicted of another offense, may revoke the suspension or probation
and sentence or resentence the defendant, as provided in this section. No revocation
of suspension or probation shall be based on failure to pay a fine
or make restitution, unless the failure was willful.
b. When the court revokes a suspension or probation, it may impose on
the defendant any sentence that might have been imposed originally for the offense
of which he was convicted.
c. The commencement of a probation revocation proceeding shall toll the probationary period
until termination of such proceedings.
In the event that the court does not find a violation of probation,
this subsection shall not operate to toll the probationary period.
[N.J.S.A. 2C:45-3.]
The legislative history of the act is unrevealing. On its face, the statute
provides unequivocally that probation revocation proceedings must be “commenced” within the probationary period.
N.J.S.A. 2C:45-3c; State v. Joseph,
238 N.J. Super. 219, 222 (App. Div. 1990)
(noting that remedy afforded under N.J.S.A. 2C:45-3 must be exercised prior to expiration
of probationary period); State v. DeChristino,
235 N.J. Super. 291, 295-96 (App. Div.
1989) (citing statute, court rule and case law for proposition that revocation of
probation proceedings must be commenced prior to expiration of period of probation). Likewise,
the statute is clear that commencement of probation revocation proceedings tolls the probationary
period until the proceeding is terminated. N.J.S.A. 2C:45-3c.
See footnote 1
What the statute does not
say in so many words is exactly what constitutes commencement.
The statute does set forth three actions that may be taken against an
errant probationer prior to the termination of the period of probation. More particularly,
N.J.S.A. 2C:45-3a(1) empowers the court either to summon defendant to appear before it
or to issue a warrant for his arrest. The statute also authorizes a
probation officer or peace officer to make a warrantless arrest of defendant if
such officer has probable cause to believe that defendant has violated the terms
of his probation or has committed another offense or if the officer has
been requested to do so by the chief probation officer. N.J.S.A. 2C:45-3a(2). Each
of those initiatives is intended to notify defendant that he is being charged
with violating probation and to bring him or her before the court. Although
not specifically denominated as such, those authorized initiatives are obviously what were being
cross-referenced in the tolling section of the statute.
Several Appellate Division decisions shed light on the question of commencement for tolling
purposes either directly or obliquely. In DeChristino, supra, the court reversed a violation
of probation because no action to commence the proceedings took place until nearly
five months after the date on which defendant’s probation was scheduled to end.
The panel in DeChristino went on to state in dictum:
Although the issue is not before us in the present case, we assume
that the preparation of a formal notice of violations and the issuance of
a warrant for the probationer’s arrest would constitute the “commencement of a probation
revocation proceeding” which would toll the probationary period, provided that reasonably diligent efforts
to effect service were unsuccessful.
[235 N.J. Super. at 297 (emphasis added).]
Five years later, the Appellate Division again considered the commencement issue for tolling
purposes in State v. Hyman,
236 N.J. Super. 298 (App. Div. 1989). There,
the probation department issued a notice and obtained an arrest warrant three months
into defendant’s five-year probationary term, charging him with violations. Defendant was not arrested
until six years later. The court held that “issuance of [a] notice of
violations and [a] warrant for [the] defendant’s arrest tolled the expiration of his
probation period and the . . . revocation proceedings were commenced within time.”
Id. at 302 (emphasis added).
Two years after Hyman, the Appellate Division revisited the issue of “what action
constitutes ‘[t]he commencement of a probation revocation proceeding’” for tolling purposes. State v.
Grabinski,
245 N.J. Super. 402, 403 (App. Div. 1991). In that case, prior
to the expiration of defendant’s probation, the probation department filed a “complaint” alleging
that defendant violated his probation. However, the department failed to seek the issuance
of a summons or warrant until after the probationary term had expired. Citing
DeChristino, the court observed that “[n]either [the] statute nor any court rule prescribes
how a probation proceeding shall be commenced” and that no provision of the
law compels the arrest of defendant or even effective notice upon him as
a prerequisite to commencement. Id. at 405. The court concluded that under N.J.S.A.
2C:45-3c, “the filing of [a] formal notice of violation is sufficient to constitute”
commencement and that the dictum in DeChristino, supra, “should not have compelled the
judge here to hold that, in addition to the filing of a formal
notice of violations during the probationary period, the warrant must also have issued
prior to the designated expiration of the probationary period.” Id. at 405 -06.
Recently in State v. Thomas,
356 N.J. Super. 299 (App. Div. 2002), the
Appellate Division concluded that a probation officer’s failure to take any steps prior
to the expiration of the defendant’s probationary term except to prepare (but not
file) an arrest warrant “[was] insufficient to constitute commencement of a revocation proceeding”
within the meaning of N.J.S.A. 2C:45-3c. Id. at 305. Citing N.J.S.A. 2C:45-3a(1) to
(3), the panel rested its analysis in part on the fact that “no
alternative proceedings in conformance with [the] authority granted by N.J.S.A. 2C:45-3 had occurred
before the termination of the period of probation.” Id. at 307.
The cited cases make several important points. First, they recognize that the issuance
of an arrest warrant or a summons cannot occur as a result of
a mere whim, but instead must be precipitated by the preparation of underlying
documentation that would support the conclusion that there is probable cause to believe
defendant has violated the terms of his probation. For example, DeChristino and Hyman
refer to a prefatory notice and Grabinski to a complaint.
See footnote 2
Likewise, underlying every
arrest without a warrant must be documentation of probable cause to believe that
defendant has violated probation.
Second, on that spectrum of activity, the cases address the issue of when
a probation violation proceeding is “commenced”.
DeChristino and Hyman recognized that timely filing of a notice of violation or
a statement of charges along with the issuance of a warrant would pass
muster for commencing probation revocation proceedings. Grabinski identified the timely filing of the
notice alone as sufficient for tolling. Thomas aptly opined that merely preparing a
warrant but doing nothing with it would not suffice because that is not
one of the “alternative proceedings” authorized by the statute.
DeChristino, Hyman and Thomas fully conform to the statute by recognizing that commencement
for tolling must be an act that is statutorily authorized. Grabinski is problematic.
Its holding that the mere filing of a notice, with nothing more, constitutes
commencement is out of synchronicity with the statutory scheme. At the heart of
the scheme is the notion that a probation revocation proceeding is commenced when
formal processes to notify defendant and bring him or her before the court
are set in motion. The legislature has declared that that occurs when the
court issues an arrest warrant or summons a defendant to appear or when
a defendant is arrested without a warrant thus precipitating a court proceeding.
On the contrary, the mere filing of a VOP document remains an initiative
of the probation department until defendant is summoned by the court, an arrest
warrant issues, or until defendant is arrested. Thus, Grabinski mis-identified the commencement point
of a probation revocation proceeding. To that extent, it is disapproved.
We note that when the AOC issued its uniform Guidelines in 1999, it
correctly recognized that the filing of the VOP documents is distinct from “commencement”
for tolling:
The filing of the VOP document with the Criminal Division and commencement of
a probation revocation proceeding shall toll the probationary period until termination of such
proceedings. Tolling refers to a suspension or temporary stopping of the running of
the time of the term.
[Guidelines, supra, note 2, at 13 (emphasis added).]
That is our reading as well.
In sum, the three statutorily authorized initiatives – issuance of an arrest warrant, summoning
a defendant to appear and actual arrest – constitute commencement for tolling. The issuance
of the arrest warrant in this case took place long before Nellom’s probationary
term expired and, thus, tolled its term.
IV
We turn finally to Nellom’s argument that the proceedings below were defective because
he was entitled to “actual” notice of his violation within the probationary period.
That notion is wide of the mark for several reasons. On the most
basic level, because the arrest warrant tolled the probationary term, the 2001 VOP
Statement of Charges detailing Nellom’s failure to live up to the conditions of
his probation was timely. In arguing to the contrary, Nellom confuses the provisions
of N.J.S.A. 2C:45-3c with his entitlement under N.J.S.A. 2C:45-4.
To be sure, because the finding of a violation of probation may result
in a loss of liberty, defendants charged therewith must be accorded due process.
State v. Lavoy,
259 N.J. Super. 594, 600 (App. Div. 1992) (noting that
United States Constitution requires that defendants charged with probation violation be granted due
process of law). That entitlement is codified in N.J.S.A. 2C:45-4 which provides:
Notice and hearing on revocation or modification of conditions of suspension or probation
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.]
However, that statute does not mandate a timeframe for the provision of defendant’s
due process rights. The only temporal limitation implicit in the act is that
the notice be given as soon as possible and certainly in sufficient time
to allow defendant to prepare and launch a defense.
Obviously a timely attempt to notify defendant that he or she is the
subject of a probation revocation proceeding either by way of summons, arrest warrant
or actual arrest is what is contemplated by the statute. Indeed, that is
what the Guidelines provide. However, the argument that Nellom advances is a different
one. He claims notice must be “effected” within the probationary term. That reading
of the statute would reward an absconder who moves without leaving a forwarding
address, in contravention of the conditions of probation. Such an individual could thus
thwart service, allowing the probationary term to expire, avoiding not only the conditions
imposed by the sentencing court but a revocation proceeding as well. That is
not what the statute intends. So long as formal action authorized by the
statute including the issuance of a warrant or summons or the arrest of
the defendant occurs prior to the expiration of the period of probation, that
period is tolled under N.J.S.A. 2C:45-3c. Thereafter, under N.J.S.A. 2C:45-4, a defendant must
receive actual notice and an opportunity to be heard prior to the revocation
proceeding in order for due process to be satisfied. That is exactly what
occurred here.
V
We affirm the judgment of conviction. That ruling makes it unnecessary for us
to address the knotty procedural issues relied on by the Appellate Division in
reaching its conclusion.
CHIEF JUSTICE PORITZ and JUSTICES VERNIERO, LaVECCHIA, ZAZZALI, ALBIN, and WALLACE join in
JUSTICE LONG’s opinion.
SUPREME COURT OF NEW JERSEY
NO. A-55 SEPTEMBER TERM 2002
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RICHARD NELLOM,
Defendant-Appellant.
DECIDED December 17, 2003
Chief Justice Poritz PRESIDING
OPINION BY Justice Long
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST
Footnote: 1
1
Although N.J.S.A. 2C:45-3 is an analogue of Model Penal Code 301.3, the
Model Penal Code does not contain a tolling provision. However, a number of
states have enacted a provision similar to our own, most likely to avoid
the suggestion in some case law that revocation proceedings must be completed prior
to the expiration of the probationary term. See Lee R. Russ, Annotation, Power
of Court, After Expiration of Probation Term, To Revoke or Modify Probation for
Violations Committed During the Probation Term,
13 A.L.R.4th 1240, §12 (1982).
Footnote: 2
--------------- FOOTNOTES ---------------
Footnote 1 The different nomenclature was likely the result of different procedures adopted by various vicinages. In 1999, after probation services became a centralized state function, the Administrative Office of the Courts (AOC) issued Violation of Probation and Revocation Process: Standards, Guidelines and Formats for Adult Probation Violations (hereinafterGuidelines). Those Guidelines set forth standard conditions of probation and a uniform system for instituting probation revocation proceedings. Included are form documents to be filed with the court and instructions regarding the circumstances under which a probationer may be detained for non-compliance. The Guidelines also require that the probationer be notified of the proceeding by personal service (the preferred method) or by registered or certified mail.