On appeal from Superior Court of New Jersey, Law Division, Passaic County, 95-12-0131-I.
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 20, 2005
Before Judges Coburn, Collester and Lisa.
This case raises the issue of whether, under the Graves Act, N.J.S.A. 2C:43-6(c), the imposition of a minimum term fixed by the sentencing court in excess of one-third of the sentence for the predicate crime is mandatory, and thereby not subject to modification, or discretionary so as to permit consideration of a motion for change of sentence to a drug treatment program pursuant to R. 3:21-10(b)(1).
On October 20, 1995, defendant Chretien Brown and Travis Gillispie entered a Chinese take-out restaurant in Paterson to commit an armed robbery. Both men were wearing hoods. Defendant carried a sawed-off shotgun. He held two employees at bay while Gillispie grabbed the cash register. Defendant fired the shotgun prior to fleeing, wounding both employees and causing serious and permanent injury to one. The proceeds of the armed robbery amounted to $29 and change.
The police investigation led to Gillispie, who confessed and implicated defendant. After being charged in a twelve-count indictment, defendant entered a retraxit plea of guilty on May 5, 1997, to attempted murder, contrary to N.J.S.A. 2C:5-1 and 2C:11-3, and first-degree robbery, contrary to N.J.S.A. 2C:15-1 and 2C:2-6. The State agreed to dismiss the remaining counts of the indictment and recommend a sentence not to exceed twenty years incarceration and a ten-year period of parole ineligibility. The defendant was sentenced on June 26, 1997. The sentencing judge found as aggravating factors the risk that defendant would commit another offense based on his criminal history and past failures to abide by rules of probation, N.J.S.A. 2C:44-1(a)(3), his extensive involvement with the criminal justice system at age twenty-four, N.J.S.A. 2C:44-1(a)(6), and the need for deterrence in light of defendant's prior criminal conduct, N.J.S.A. 2C:44-1(a)(9). The judge found no mitigating factors. Consistent with the plea bargain, the sentence for attempted murder was twenty years with a mandatory minimum of ten years pursuant to the Graves Act, and a concurrent sentence for armed robbery. Defendant's appeal of his sentence was heard by us on December 7, 1998, and was subsequently denied.
In October 2003, defendant filed a pro se motion under R. 3:21-10(b)(1) for a change of sentence to permit him to enter a drug treatment program. The State opposed on grounds that defendant was not entitled to a change or reduction until he completed the ten-year parole ineligibility term. Defendant appeals from the order denying his application.
A person who has been convicted under 2C:39-4(a) of possession of a firearm with the intent to use it against the person of another ... while in the course of committing or attempting to commit the crime, including the immediate flight therefrom, used or was in possession of a firearm ... shall be sentenced to a term of imprisonment by the court. The term of imprisonment shall include the imposition of a minimum term. The minimum term shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater ... during which the defendant shall be ineligible for parole. [N.J.S.A. 2C:43-6(c).]
The Graves Act mandates "absolute certainty" of incarceration for those committing or attempting to commit crimes and arm themselves with guns." State v. DesMarets, 92 N.J. 62, 88 (1983). No weighing of aggravating and mitigating factors can result in a sentence less than that provided by the Act or a suspended sentence. Id. at 71-72.
Under R. 3:21-10(b)(1) an order may be entered at any point of a custodial term to permit a defendant to enter a treatment or rehabilitation program for drug or alcohol addiction. Accord, State v. Jefimowitz, 119 N.J. 152 (1990) (no judicial discretion as to extended terms under Graves Act); State v. Towey, 114 N.J. 69, 77 (1989) (no judicial discretion in mandating sentencing structure of Graves Act). However, when a parole ineligibility minimum term is required by statute, a court has no jurisdiction to consider a R. 3:21-10(b) application. State v. Mendel, 212 N.J. Super. 110, 113 (App. Div. 1986) (Graves Act); State v. Diggs, 333 N.J. Super. 7, 10 (App. Div.), certif. denied, 165 N.J. 678 (2000) (parole ineligibility term pursuant to N.J.S.A. 2C:35-7)); cf. State v. Le, 354 N.J. Super. 91, 96 (Law Div. 2002) (no entitlement to reconsideration of sentence until completion of mandatory term of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:35-7.2); State v. DeJesus, 252 N.J. Super. 456, 462 (Law Div. 1991) (same as to mandatory term for repeat drug offenders under N.J.S.A. 2C:43-6(f)); State v. Verducci, 199 N.J. Super. 329, 334 (App. Div.), certif. denied, 101 N.J. 256 (1985) (in appropriate circumstances a custodial sentence may be amended to permit the release of a defendant because of a mental infirmity).
In State v. Mendel, supra, 212 N.J. Super. at 113, we distinguished between mandatory minimum parole ineligibility terms and discretionary parole ineligibility sentences when the sentencing judge is clearly convinced that the aggravating factors of N.J.S.A. 2C:44-1(a) ...