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State v. Sheppard

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 26, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KEITH SHEPPARD, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 97-06-0696.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 10, 2010

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 our consideration:

POINT I.

APPELLANT'S SENTENCE SHOULD BE REDUCED BASED ON THE EXISTENCE OF A SENTENCE DISPARITY.

POINT II.

APPELLANT INSISTS HIS SENTENCE WOULD HAVE BEEN REDUCED SIGNIFICANTLY HAD THE FEDERAL AGENTS ADHERED TO THE SUBPOENA.

We have carefully reviewed the record and conclude that defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following comments.

Defendant argues that his sentence should have been reduced because of a sentencing disparity. It is well established that "[d]isparity may invalidate an otherwise sound and lawful sentence." State v. Roach, 146 N.J. 208, 232, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996). "'A sentence of one defendant not otherwise excessive is not erroneous merely because a co-defendant's sentence is lighter.'"

Ibid. (quoting State v. Hicks, 54 N.J. 390, 391 (1969)). Even though a "sentence imposed on [a] defendant falls within the statutory limits mandated for the offense, 'there is an obvious sense of unfairness in having disparate punishments for equally culpable perpetrators.'" Ibid. (quoting State v. Hubbard, 176 N.J. Super. 174, 175 (Resentencing Panel 1980)).

Here, defendant based his disparity claim upon a comparison of his sentence with that imposed upon the defendant in Williams, where the defendant also was convicted of first degree carjacking but was sentenced to ten years of incarceration, with a five-year period of parole ineligibility. Williams, supra, 289 N.J. Super. at 613. The trial court correctly found, however, that defendant's disparity claim failed because he is not similarly situated to the defendant in Williams, who was convicted in a different case, in a different county, and who had a different criminal history.

Defendant additionally argues that the court erred by failing to substantially reduce his sentence because of his cooperation with federal law enforcement officers in an investigation. As we noted previously, the trial court found that defendant should be given some credit for providing information to the FBI and reduced the period of parole ineligibility previously imposed from ten to nine years. The court found, however, that a further reduction in the sentence was not warranted.

The trial court correctly determined that, to justify a further reduction in his sentence, defendant had to establish that his cooperation was of substantial value to law enforcement. See State v. Gerns, 145 N.J. 216, 227-28 (1996) (holding that defendant's cooperation must provide substantial benefit to the State in order to justify waiver in whole or in part of mandatory parole ineligibility for certain drug offenses). Although defendant testified that he provide some information to the FBI, he did not establish that this information led to the arrest or prosecution of any person. The record thus supports the court's finding that defendant's cooperation did not have substantial value or results.

Defendant asserts, however, that he was unable to establish substantial value of his cooperation with the federal law enforcement officers because an FBI agent failed to appear at the hearing of May 30, 2008, to testify concerning the matter. It appears that a subpoena had been issued to the FBI prior to the hearing. The court noted on the record that it had previously adjourned the hearing twice because the FBI agent was not available. The court refused to adjourn the matter again, noting that it had provided enough time for someone from the FBI "to get in here and submit something" for the court's consideration.

We are satisfied that the court did not abuse its discretion by refusing a further delay in the proceedings. We note additionally that the State established, through Donnelly's testimony, that there was no agreement between the State and defendant concerning his cooperation with the FBI in its investigation. Moreover, Donnelly stated that no arrests or prosecutions had been made on the basis of the information defendant had provided to the FBI. Donnelly's testimony established that defendant had cooperated with the FBI and, because of that cooperation, he received a one-year reduction in his sentence. In addition, defendant did not testify that FBI had made any promises to him regarding the sentence at issue in this case.

The court's order of August 26, 2008, is modified to reflect that the court granted defendant a reduction in the period of parole ineligibility previously imposed from ten to nine years. We remand the matter to the trial court for entry of an amended judgment of conviction, reflecting the reduction in the parole ineligibility period, in the event that an amended judgment has not previously been entered.

The order of August 26, 2008, is affirmed as modified, and the matter is remanded to the trial court for entry of an amended judgment of conviction.

20100526

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