July 24, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PRENTISS SMITH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-01-1201.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 8, 2008
Before Judges C.S. Fisher and Grall.
Pursuant to a plea agreement, defendant pled guilty to third-degree burglary, N.J.S.A. 2C:18-2, and second-degree eluding, N.J.S.A. 2C:29-2(b); the other charges were dismissed. Defendant was sentenced to a ten-year prison term, with a five- year period of parole ineligibility, on the eluding conviction and a consecutive five-year term, with an eighteen-month period of parole ineligibility, on the burglary conviction.
Defendant's appeal was placed on our excessive sentence oral argument calendar. We affirmed the judgment of conviction. State v. Smith, No. A-6347-03T4 (App. Div. April 29, 2005).
On October 10, 2005, defendant filed a petition for post-conviction relief. Counsel was assigned and filed a supplemental brief. Defendant also moved for a modification of his sentence in order that he might enter a drug rehabilitation program. See R. 3:21-10(b)(1).
With regard to the motion to modify his sentence, defendant argued that during his term of incarceration he became motivated to recover from his addiction. Defendant asserted, among other things, that he had become a volunteer coordinator for Narcotics Anonymous and Alcoholics Anonymous, had availed himself of a number of rehabilitative programs, and was scheduled to earn reduced custody status. He had also become a Jehovah's Witness and claimed to have begun addressing his addiction spiritually. At a hearing, defendant argued that he had "come to the conclusion that I'm an addict," and claimed that his problem was not "just drug use" but rested with his "thinking[, which] is not in tune, my thought process, my attitudes, ideas, and behaviors." He sought a modification of his sentence to permit his entry into a drug rehabilitation program so that he might further his progress in "becom[ing] a better person."
In response, the State acknowledged that defendant presented a "bona fide addiction and motivation to seek therapy," but asserted that defendant failed to sustain his burden that "there is a reasonable probability that he would successfully complete a program, would assume his proper and rightful place in society without violating the . . . law, and that his release is not incompatible with the welfare of society."
Judge Marianne Espinosa acknowledged that the matter, as posed, required that she make a "difficult call." The judge recognized certain positive aspects of defendant's personality and acknowledged that he had already served the greater portion of the parole ineligibility period, but she also observed that defendant had been provided with prior opportunities for treatment of his addiction that proved unsuccessful. The judge also found that certain assertions in defendant's PCR petition indicated that he continued to minimize his involvement in the underlying offense. Based upon her careful weighing of all these circumstances, Judge Espinosa concluded that defendant had not made "the full moral inventory" and had not "taken responsibility for all [his] conduct." As a result, the judge denied the motion to modify the sentence.
After ruling on the motion to modify, Judge Espinosa considered defendant's PCR petition and his claim that he had been denied the effective assistance of counsel. Specifically, defendant alleged, among other things, that his attorney should have more thoroughly investigated the facts, should have been more attentive to him throughout the proceedings, and should have more aggressively pursued certain pretrial motions. The judge denied the PCR petition without conducting an evidentiary hearing.
In his appeal of the orders denying his motion to modify his sentence and his PCR petition, defendant presents the following arguments:
I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED MR. SMITH'S APPLICATION TO PERMIT HIS ENTRY INTO A DRUG AND ALCOHOL TREATMENT PROGRAM SINCE THIS STRUCTURED THERAPY FAR OUTWEIGHS THE NEED FOR MR. SMITH'S CONTINUED INCARCERATION.
II. BOTH TRIAL COUNSEL AND PCR COUNSEL RENDERED INEFFECTIVE ASSISTANCE TO MR. SMITH, AND THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED MR. SMITH'S PETITION FOR POST-CONVICTION RELIEF WITHOUT A HEARING.
We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following regarding Point I.
In seeking a transfer from prison to a narcotics treatment program, the burden is on the defendant to establish that he is an appropriate candidate for such relief. State v. McKinney, 140 N.J. Super. 160, 163 (App. Div. 1976). It is a matter that lies within the discretion of the trial court, and the mere presentation of evidence that the applicant is willing to participate in such a program and the program is willing to accept the applicant is alone insufficient. Ibid. "[T]he welfare of our citizens should be first and foremost," and, as a result, trial judges must be "particularly circumspect" in considering such an application. Ibid.
The applicant must demonstrate a present addiction as well as a bona fide motivation to obtain rehabilitative therapy. The trial court must also consider whether the applicant has a "criminal record that does not militate against the granting of relief." Id. at 164. In addition, there must be a showing of a reasonable probability that the applicant will successfully complete the program and will assume his proper and rightful place in society without violating the law, and the applicant must also demonstrate that release is not incompatible with the welfare of society. Id. at 163-64.
After carefully reviewing the record on appeal, we are satisfied that Judge Espinosa applied the letter and spirit of these principles. She recognized that defendant was extended term eligible based on his prior criminal record, and that defendant had twice been given opportunities to avail himself of drug rehabilitation without success. She also found that defendant had failed to take a "full moral inventory" and accept "full responsibility" for his criminal activities. As a result, the judge concluded that defendant's likelihood of completing a rehabilitative program was too questionable to permit the granting of relief. This determination by no means constituted an abuse of discretion, and we have been provided with no reason for second-guessing the judge's reasonable resolution of the motion.
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