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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...