February 9, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARK EVANS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 98-02-0709, 90-05-1562 and 90-06-1782.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2009
Before Judges Wefing and Messano.
In June 1991, defendant entered a plea of guilty to two counts of first-degree robbery, N.J.S.A. 2C:15-1. As part of that plea, defendant stipulated that he was subject to an extended-term sentence under N.J.S.A. 2C:44-3(a).
The stipulation listed six prior convictions dating back to 1978 and included two earlier convictions for first-degree robbery.
For one count of robbery, the trial court sentenced defendant to life in prison, with a fifteen-year period of parole ineligibility. For the remaining count, the trial court sentenced defendant to a concurrent term of twenty years in prison, with a ten-year period of parole ineligibility.
The trial court attached to the judgment of conviction a statement of its reasons for imposing that sentence. It concluded with the following language:
I therefore sentenced the defendant in accordance with the agreement to an aggregate term of life in prison with 15 years to be served without parole with the clear understanding that in the event the defendant was accepted into an in-patient drug treatment program after having served five years the sentence would be modified to one of probation conditioned upon his successful completion of the program.
Based upon that provision, defendant filed a motion in 1995 to modify his sentence. His motion was granted, and he was sentenced to two concurrent five-year terms of probation, conditioned upon his successfully completing an in-patient drug program at My Brother's Keeper.
Defendant did not comply with the terms of his probation; in 1997, he was charged with violating his probation by failing to remain drug-free. Although he admitted the violation, the trial court did not revoke his probation and direct his return to prison to serve the balance of his custodial term. Rather, it continued defendant on probation, with the condition that he successfully complete a drug treatment program. The trial court attached the following statement of reasons to the judgment of conviction.
This defendant stands convicted of violation of probation in that he failed to remain drug free. The underlying offenses were most serious and were first degree robberies. He had been released from prison on a motion for reconsideration of sentence in order to permit him to enter into and successfully complete a drug treatment program. He has already changed programs and has turned up with a positive urine but I feel that he may now be on the right track. Obviously his probation officer feels the same because it was her recommendation that probation be continued, particularly in light of the fact that he volunteered the fact that he had abused controlled dangerous substances. On the basis of a feeling that he may be now on the way to recovery, his probation was continued.
Despite this opportunity extended to defendant, he was again charged with violating his probation in that he failed to report to his probation officer and, in the interim, had been convicted under two separate indictments with possession of a controlled dangerous substance and second-degree robbery. The trial court revoked defendant's probation, and defendant was remanded to serve the balance of his custodial term.
Defendant appealed from the order but withdrew his appeal prior to its disposition on the merits.
In 2007, defendant filed a motion for a change in custody, pursuant to Rule 3:21-10(b)(1), to enter a drug treatment program. The trial court denied that motion in 2007.
In 2008, defendant filed another motion pursuant to Rule 3:21-10(b)(1) to enter a drug treatment program. The trial court issued a letter opinion on December 23, 2008, setting forth its reasons for denying defendant's motion.*fn1 Defendant has appealed from the denial of his motion, and he raises the following argument on appeal:
APPELLANT CONTEND[S] THE LOWER COURT'S DENIAL WAS AND REMAIN[S] ARBITRARY AND CAPRICIOUS DEPRIVING APPELLANT DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE 3, PARAGRAPH 1 OF THE NEW JERSEY CONSTITUTION.
We have considered his contention in light of the applicable legal principles and the record presented here. We affirm substantially for the reasons stated by Judge Lee A. Solomon in his letter of December 23, 2008.*fn2