On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 94-06-0667.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez and Chambers.
Defendant William Acevedo appeals from the trial court order of July 27, 2009, denying his application made pursuant to Rule 3:21-10(b)(1) to change his custodial sentence to permit entry into an alcohol treatment program. We affirm.
In 1995, pursuant to a plea agreement, defendant pled guilty to one count of first degree aggravated manslaughter involving two victims, N.J.S.A. 2C:11-4(a), and second degree burglary, N.J.S.A. 2C:18-2. He was sentenced to thirty years imprisonment with fifteen years of parole ineligibility on the aggravated manslaughter count and a consecutive sentence of ten years with five years of parole ineligibility on the burglary count. He thus received an aggregate sentence of forty years with twenty years of parole ineligibility.*fn1
Defendant filed a motion for change of sentence to a drug treatment pursuant to Rule 3:21-10(b)(1). By order dated July 27, 2009, the trial court denied the motion, issuing a written decision explaining the reasons for the denial. Defendant appeals that decision to this court, contending that:
THE TRIAL JUDGE DECISION IS INCONSISTENT WITH THE FACTS THAT ARE SUPPORT[ED] BY THE RECORD, THEREFORE, DEFENDANT-APPELLANT, WILLIAM ACEVEDO SHOULD BE GRANTED CHANGE OF SENTENCE INTO A DRUG TREATMENT PROGRAM PURSUANT TO [RULE] 3:21-10(b)(1).
Rule 3:21-10(b) allows a defendant serving a custodial sentence to move to change the sentence in order to enter "a custodial or non-custodial treatment or rehabilitation program for drug or alcohol abuse." To be entitled to relief under the Rule, a defendant must provide proof that he is an addict. State v. McKinney, 140 N.J. Super. 160, 163 (App. Div. 1976). The court must also consider whether the defendant has a "bona fide motivation" to rehabilitate himself. Id. at 163-64. In making this determination, the court may consider the steps the defendant has taken to rehabilitate himself through participation in relevant programs available at the prison. Id. at 163. The court must also take into account defendant's criminal record which may militate against granting relief. Id. at 164. In addition, in order to grant the request, the court should:
[F]urther conclude that if the relief is granted there is a reasonable probability that the applicant will successfully complete the program, will assume his proper and rightful place in society without violation of the law, and that his release is not incompatible with the welfare of society. [Ibid.]
The Rule may not be invoked to avoid a statutorily mandated period of parole ineligibility required by statute. State v. Mendel, 212 N.J. Super. 110, 113 (App. Div. 1986). However, when a defendant is serving a period of parole ineligibility that was imposed as a matter of the court's discretion, the court may consider an application under Rule 3:21-10(b). Ibid.
In this case, defendant's application was not barred by a period of parole ineligibility. Although the application was made during defendant's period of parole ineligibility, that period was not statutorily mandated, but rather was imposed in the discretion of the sentencing court. As a result, it was not barred. State v. Mendel, supra, 212 N.J. Super. at 113.
The Rule also requires that the application be supported by affidavits, documents, and papers supporting the request for relief. R. 3:21-10(c); State v. Le, 354 N.J. Super. 91, 94 (Law Div. 2002). We recognize that defendant presents evidence of alcohol abuse problems. A mental health evaluation of defendant performed in 1995, before his sentence was imposed, indicates that he had a history of alcohol abuse. A report from the Department of Corrections dated March 26, 2009, concludes that defendant has an alcohol or drug problem and recommends alcohol programs available within the institution. Defendant indicates that while incarcerated, he has attended Narcotics Anonymous and Alcohol Anonymous meetings. Defendant also has presented a letter dated June 23, 2009, from an out-patient treatment facility accepting him into its program. While these proofs suggest an alcohol problem that needs to be addressed, these materials do not provide an analysis of the depth of the problem, the strength of the efforts made to treat the problem within the institution, or whether the program located by defendant is appropriate to address his needs.
Further, in considering the application, the court must take into account defendant's criminal record and the welfare of society measured by the "reasonable probability that the applicant will successfully complete the program" and become a law abiding citizen. State v. McKinney, supra, 140 N.J. Super. at 164. Defendant was convicted of a grave offense for participating in a burglary that resulted in the homicide of two people. He attributes his conduct to abuse of alcohol and maintains that he continues to need treatment for that condition. Without professional recommendations to support this step, to place defendant in an out-treatment program, when he still is not free from alcohol abuse and when that abuse in the past led to such dangerous behavior, would be contrary to ...