As part of a plea agreement, Dunlap pled guilty to second-degree robbery and was sentenced to five-years special probation in the Drug Court. The plea agreement provided an alternative sentence of ten years in prison if Dunlap violated probation. After serving four years of probation, Dunlap violated probation and was sentenced to ten years in prison – the maximum sentence for the crime of which he was convicted.

Dunlap challenged his sentence to the ten year maximum arguing the time he spent on special probation should count against the maximum he could serve and that such a sentence violated the Constitutional principle that a sentence cannot be extended based on facts not found by a jury or admitted by the defendant. The Appellate Division rejected this argument because Dunlap admitted all the elements of the crime when he pled guilty, because he admitted all the elements and facts alleged against him during the violation of probation hearing, and because time spent on non-custodial probation cannot be equated with time spent in prison.

This decision does not change anything about the law or its interpretation. It affirms the existing law, and rejects a novel challenge to it, that a defendant sentenced to probation may face the maximum sentence if probation is violated. It is something repeated ad nauseum, literally during every plea agreement and sentencing, warning the defendants that if they violate probation they will return to court where they could be sentenced up to the maximum penalties.

Had Dunlap succeeded in his argument, it would have turned plea bargaining, sentencing, violations of probation and re sentencing on their heads. It would have created new concerns about giving defendants probation rather than imprisonment. It would have created new challenges for negotiating what the right length of probation should be. Alas, Dunlap was unsuccessful and every person sentenced to probation must still be aware that violating probation could result in a maximum term of imprisonment.

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