November 4, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROOSEVELT DAVIS, N/K/A KHABIR UMDABBADAH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 98-12-4818, 98-12-4822, 98-12-4826, 98-12-4828, 98-12-4830 and 98-10-4175.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 13, 2009
Before Judges Reisner and Chambers.
Defendant Roosevelt Davis*fn1 appeals from the trial court order of January 5, 2009, denying his motion for a change in custody and a reduction in his sentence. We affirm.
On September 12, 2000, defendant pled guilty pursuant to a plea agreement to six indictments for armed robbery and related weapons offenses. The plea agreement provided that the prosecutor would not recommend a sentence in excess of twenty-three and one-half years and that the sentence would be subject to the mandatory periods of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and the Graves Act N.J.S.A. 2C:43-6. On October 27, 2000, defendant was sentenced to a term of twenty years in prison subject to NERA's eighty-five percent period of parole ineligibility. His sentence was affirmed on appeal by order dated April 16, 2002. State v. Davis, No. A-1276-01 (App. Div. April 16, 2002). The Supreme Court denied certification on July 12, 2002. State v. Davis, 174 N.J. 192 (2002).
In February 2008, defendant moved before the trial court for a change of custody for admission into a drug and alcohol abuse treatment and therapy program pursuant to Rule 3:21-10(b) and for a reduction in his sentence. The trial court denied the application for a change of custody on the basis that it could not be considered by the court until defendant had served the mandatory portion of his sentence. The trial court denied the application for a reduction of his sentence because it was untimely.
On appeal, defendant raises the following issues:
THE TRIAL COURT ERRED IN DENYING THE MOTION FOR CHANGE OF CUSTODY SINCE DEFENDANT'S NERA TERM IS ABOVE THE MINIMUM STATUTORILY MANDATED TERM FOR FIRST-DEGREE ROBBERY.
DEFENDANT MEETS THE CRITERIA FOR A CHANGE OF CUSTODY TO PERMIT ENTRY INTO A DRUG AND ALCOHOL TREATMENT FACILITY.
THE TRIAL COURT ERRED IN REFUSING TO GRANT DEFENDANT A REDUCTION OF SENTENCE BASED UPON HIS REHABILITATIVE . . . EFFORTS, THE REAL-TIME CONSEQUENCES OF THE SENTENCE IMPOSED AND THE FAILURE OF THE COURT AND COUNSEL TO EXPLAIN NERA'S MANDATORY FIVE YEAR PAROLE SUPERVISION.
1. Post-sentencing accomplishments.
2. The real-time consequences of defendant's sentence.
3. Failure to explain NERA's [five] year mandatory parole.
Rule 3:21-10(b)(1) allows a defendant serving a custodial sentence to move to change the sentence in order that he may enter "a custodial or non-custodial treatment or rehabilitation program for drug or alcohol abuse." However, the Rule may not be invoked to avoid a parole ineligibility period required by statute. State v. Mendel, 212 N.J. Super. 110, 113 (App. Div. 1986). "Where 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 sentence." Ibid. A court has no jurisdiction to consider a Rule 3:21-10(b) application before defendant has served a minimum term required by statute. State v. Brown, 384 N.J. Super. 191, 194 (App. Div. 2006). Relying on this law, the trial court denied defendant's application under Rule 3:21-10(b)(1) because defendant has not yet served eighty-five percent of his twenty-year sentence.
Defendant notes that, although he was sentenced to twenty years in prison, the minimum sentence he could have received for his crimes is ten years. He maintains that his Rule 3:21-10(b) application may now be considered because he has already served eighty-five percent of ten years, which he argues is his minimum period of parole ineligibility.
We reject this argument. The calculation of the minimum period of parole ineligibility for Rule 3:21-10(b) purposes is based on defendant's actual sentence and is not a theoretical number based on the minimum sentence he could have received under the statutes. See State v. Brown, 384 N.J. Super. 191 (App. Div. 2006). In State v. Brown, the defendant Brown received a twenty-year sentence which was the maximum sentence the court could have imposed. Id. at 195. Under the statute, N.J.S.A. 2C:43-6(c), the sentencing judge had the discretion to fix Brown's period of parole ineligibility between one-third and one-half of the sentence. Ibid. The sentencing judge imposed a period of parole ineligibility of one-half the sentence, which was ten years. Id. at 193. We held that because the sentencing judge imposed a period of parole ineligibility in excess of the statutorily mandated minimum of one-third of the sentence, the court had jurisdiction to hear Brown's application under Rule 3:21-10(b) for modification of his sentence once he served one-third of his sentence. Id. at 196. However, we calculated the one-third period using the twenty-year sentence, which was the actual sentence Brown received, instead of using the minimum sentence he could have received. Ibid.
Thus, for Rule 3:21-10(b) purposes, the mandatory period of parole ineligibility is based on the actual sentence a defendant has received. Here, defendant received a sentence of twenty years. While the court had the discretion to impose a lesser sentence, once it fixed defendant's sentence at twenty years, the defendant's period of parole ineligibility was controlled by NERA. At that point, the court had no discretion on the period of parole ineligibility, but rather was required to impose an eighty-five percent period of parole ineligibility. N.J.S.A. 2C:43-7.2. Accordingly, defendant must serve eighty-five percent of his twenty-year sentence before he is eligible to make a Rule 3:21-10(b) application.
Defendant's application to reduce his sentence was properly denied as untimely. See R. 3:21-10(a) (providing that an application to reduce or change a sentence must be made sixty days after the date of the judgment of conviction); R. 1:3-4(c) (providing that the time period set forth in Rule 3:21-10(a) may not be enlarged). Further, defendant's sentence was affirmed on direct appeal. State v. Davis, supra, No. A-1276-01.
When arguing that his sentence should be reduced, defendant maintains that he was not advised of all the penal consequences of the plea, namely that his sentence was subject to the mandatory five-year period of parole supervision. He then contends that he should be allowed to withdraw his guilty plea pursuant to State v. Johnson, 182 N.J. 232 (2005). However, withdrawal of his guilty plea was not a form of relief requested in defendant's motion before the trial court; it was not addressed by the trial court; and it was not requested as a form of relief in the point headings of defendant's appellate brief.
Accordingly, since this particular relief has not been squarely requested in these proceedings, we do not address the question of whether defendant may withdraw his guilty plea. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (setting forth the general proposition that "our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available.")