CAMDEN COUNTY. (CRIMINAL)
Defendant moved for a reconsideration of his sentence to permit his transfer to a drug-treatment program under R. 3:21-10(b). Defendant presently is serving a sentence under count one of accusation 482-02-91 for possession of heroin, a controlled dangerous substance, with intent to distribute, a third-degree offense in violation of N.J.S.A. 2C:35-5, under an extended term N.J.S.A. 2C:43-6f and -7c, of nine years New Jersey State Prison, three years without parole, $1000 DEDR penalty, $50 forensic laboratory fee, six months loss of driver's license, and $30 violent crime penalty.
Defendant also is serving a concurrent sentence under count one of indictment 3325-12-90 for possession of heroin, a controlled dangerous substance, a third-degree offense pursuant to N.J.S.A. 2C:35-10a(1), of five years New Jersey State Prison, one year without parole, $1000 DEDR penalty, $50 forensic laboratory fee, a consecutive six months loss of driver's license, and a $30 violent crime penalty.
Additionally, defendant is serving a sentence for violation of probation under indictment 2414-9-88 as a result of committing the aforementioned offenses while on probation. Defendant received a five-year sentence to New Jersey State Prison, two
and one-half years to be served without eligibility for parole, on the underlying offense of distribution of a controlled dangerous substance under N.J.S.A. 2C:35-5a(1)/2C:35-5b(3). This sentence runs concurrently with the previously described sentences.
Defendant's sentences are the result of pleas of guilty pursuant to a plea agreement and upon motion of the prosecutor under N.J.S.A. 2C:43-6f. On February 17, 1989, defendant had been sentenced under indictment 2414-9-88 for possession of a controlled dangerous substance with the intent to distribute, under N.J.S.A. 2C:35-5a/2C:35-5b(3), a third-degree offense, to four years probation. Defendant was served with a copy of the rules of probation on February 17, 1989. Defendant stopped paying his DEDR penalty after November 14, 1989 and failed to perform the requisite community service after October 31, 1990. Defendant also did not remain drug-free. On three occasions his urine samples tested positive for drugs, and he twice admitted, during office visits, that he had used drugs. In addition, defendant pleaded guilty to two new offenses he committed while on probation.
The court weighed the aggravating and mitigating factors and found that it could go along with the plea bargain and sentenced defendant accordingly on April 5, 1991. Approximately four months later, on August 9, 1991, defendant petitioned the court for a reconsideration of his sentence. Defendant argued that despite the fact that he had not served his period of parole ineligibility, he was eligible for a reconsideration of his sentence under R. 3:21-10(b). Further, defendant argued that State v. Mendel, 212 N.J. Super. 110, 514 A.2d 67 (App.Div.1986), did not apply because defendant's period of parole ineligibility was imposed as a matter of judicial discretion and was not mandated by the statute controlling the offense, N.J.S.A. 2C:35-5b(3).
Thus, the primary determination facing the court is whether the period of parole ineligibility imposed under count one of
accusation 482-2-91, for a second offense of possession of a controlled dangerous substance with intent to distribute in violation of N.J.S.A. 2C:43-6f, is a matter of judicial discretion or mandated by statute. If the former, the trial court has jurisdiction to consider the motion. The court could then consider the aggravating and mitigating factors with which it made its initial determination as well as the sufficiency of the supporting documents required by R. 3:21-10(c) and proceed to a decision on the reconsideration motion on that basis. The court, however, could not deny the motion solely because defendant was serving a term of parole ineligibility imposed by judicial discretion. State v. Farrington, 229 N.J. Super. 184, 186, 550 A.2d 1301 (App.Div.1988).
In Farrington, defendant was serving a sentence of 20 years in the New Jersey State Prison with five years of parole ineligibility for armed robbery with a knife. Defendant made a motion for transfer to a non-custodial drug treatment program pursuant to R. 3:21-10b(1), a motion similar to that being considered in the present case. In reversing the trial court's refusal to consider the motion before the period of parole ineligibility had been served, the appellate court found the period of parole ineligibility was imposed as a matter of discretion pursuant to N.J.S.A. 2C:43-6b. Therefore, the court was not barred from considering the motion even though defendant had not finished serving the period of parole ineligibility.
An entirely different situation is created when a parole ineligibility period is mandated by statute. Although R. 3:21-10(b) states that a motion for reconsideration of sentence, in order to permit transfer to a drug treatment program, can be made "at any time," the application of this rule has been limited by case law. Specifically, "[w]here a parole ineligibility term is required or mandated by statute, an application may not be granted under R. 3:21-10(b) so as to change or reduce that ...