On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 97-06-0696.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Chambers.
Defendant Keith Sheppard appeals from an order entered by the Law Division on August 26, 2008, denying his motion for a change or reduction in his sentence. For the reasons that follow, we modify the order and affirm.
The following facts are pertinent to our decision. Defendant was charged under Indictment No. 97-06-696 with third degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count one); second degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); fourth degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count three); and first degree carjacking, N.J.S.A. 2C:15-2 (count four). On October 19, 1999, defendant pled guilty to first degree carjacking, as charged in count four of the indictment. The State agreed to recommend that the court sentence defendant to a twenty-four year term of incarceration, with an eight-year period of parole ineligibility.
After defendant failed to appear for his original sentencing date, the court issued a warrant for his arrest. Defendant was thereafter arrested and extradited to New Jersey. On March 21, 2003, the court sentenced defendant, in accordance with State v. Subin, 222 N.J. Super. 227, 238-240 (App. Div.), certif. denied, 111 N.J. 580 (1988), to twenty-five years of incarceration, with a ten-year period of parole ineligibility. Thereafter, defendant filed a petition for post conviction relief (PCR), which the court denied by order entered on May 1, 2006. Defendant appealed from the May 1, 2006 order, and we affirmed the denial of PCR. State v. Sheppard, No. A-5092-05 (App. Div. April 5, 2007).
Thereafter, defendant filed a motion in the trial court seeking a reduction of his sentence. On May 30, 2008, the court conducted an evidentiary hearing on defendant's claim that a reduction in the sentence was warranted because he had cooperated with federal agents in an investigation. At the hearing, which was closed to the public, defendant testified that he provided certain information to agents in the Federal Bureau of Investigation (FBI), but he acknowledged that no arrests or prosecutions had resulted from the information he had provided.
Assistant Prosecutor James Donnelly (Donnelly) testified that he had spoken with an FBI agent regarding the matter. Donnelly stated that he was informed there was no written or verbal agreement between the FBI and defendant concerning cooperation or credits. Donnelly also said that the FBI had never arrested or prosecuted anyone based on the information defendant had provided. Donnelly conceded that defendant had made "legitimate efforts" to provide the FBI with information but the State could not support defendant's application for a reduction of his sentence because defendant's cooperation with law enforcement was not fruitful in any way.
The court placed its decision on the record. The court found that there was no agreement between defendant and the State concerning his cooperation. However, there was a "collateral agreement" between the FBI and defendant but no "specific promise" had been made with regard to defendant's cooperation. The court found that, although defendant had been willing to cooperate with the FBI in its investigation, he did not provide the FBI with information that had substantial value or results. The court nevertheless determined that defendant was entitled to some credit for his cooperation with law enforcement and reduced the period of parole ineligibility previously imposed from ten years to nine years.
The court considered defendant's disparity claim at a hearing held on August 26, 2008. Defendant argued that there was an impermissible disparity between his sentence and the sentence imposed upon the defendant in State v. Williams, 289 N.J. Super. 611 (App. Div.) certif. denied, 145 N.J. 375 (1996). The court concluded that defendant's comparison of his sentence with that imposed in Williams was inappropriate because the defendant in Williams was not a co-defendant in this case, the matter involved a separate offense, which had been committed in a different jurisdiction and involved a defendant who had a different criminal history.
The court entered an order dated August 26, 2008, denying defendant's motion for a change or reduction of his sentence. The order did not reflect that the court had reduced the period of parole ineligibility previously imposed. It also is unclear from the record whether the court ever entered an amended judgment of conviction, reflecting its determination.
Defendant appeals and raises the following issues for ...