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State v. Covington


July 21, 2010


On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 91-05-0900.

Per curiam.


Submitted June 16, 2010

Before Judges Chambers and Kestin.

Defendant, Robert Covington, appeals from a denial of his motion for a change in custodial sentence pursuant to Rule 3:21- 10(b)(1). In a single point on appeal, he argues:


We vacate the order denying the requested relief and remand for further proceedings.

In 1992, pursuant to a plea agreement, defendant pled guilty to aggravated manslaughter, N.J.S.A. 2C:11-4a. He had initially been charged with felony-murder for his role in a 1990 robbery, during which the victim was shot and subsequently died from medical complications. Defendant was seventeen years old at the time of the crime. The trial court sentenced defendant to a forty-five-year term of imprisonment with parole ineligibility for half that term, twenty-two and one-half years. There is no need, for the purposes of this appeal, to recount whatever procedural history in the matter occurred subsequent to sentencing and before 2004. Defendant, in his brief on appeal, states:

In 2004, [he] applied for a custody change to go into a drug/alcohol program. On January 5, 2005, the Court required defendant to serve more time, praised him for his progress and dismissed the motion without prejudice.

The State does not dispute this account. In his "affidavit" attached to the instant motion, filed on November 29, 2007, defendant certified:

1. I began using drugs and alcohol as a teenager, eventually becoming addicted.

2. I still have urges to get high, and I often have alcohol and drug nightmares.

3. I have taken multiple programs to address my addiction.

4. I need and want long term in-patient treatment to address my addiction problem.

In support of the application, defendant supplied an excerpt from the transcript of the January 5, 2005, proceeding that depicts the motion judge as declining to reach a result that would have the practical effect of reducing the sentence substantially.

When you get closer to your stip, the prosecutor's office might agree to an inpatient program if they feel you've been making some substantial steps while you're in State's Prison to address this drug problem that you feel you have before you get released.

. . . If you're close to serving the end of you[r] stip[,] I could consider letting you do the last 18 months of your stip perhaps in a drug rehab program so that when you get out you don't have a drug problem.

The State does not dispute this account, either.

In his application, defendant contended that he meets the criteria of the governing cases, primarily State v. McKinney, 140 N.J. Super. 160 (App. Div. 1976). He reiterates that position on appeal, in addition to his other arguments. The State, in its brief, contends that McKinney requires a defendant applying for Rule 3:21-10(b)(1) relief to establish that he is a drug addict or alcoholic, and that defendant has made no such showing.

Defendant filed the instant motion pro se, and has represented himself in this appeal, as well. On June 6, 2008, the first of four proceedings before the trial court on this application, defendant appeared pro se, and the court directed him to fill out a form requesting legal representation by the Office of the Public Defender.

In the second proceeding, on August 22, 2008, defendant was represented by a member of the Public Defender's staff. It is not clear from the record, especially in the light of what transpired in subsequent proceedings, whether counsel had actually been assigned to defendant or whether the assistant public defender who spoke was simply the one assigned to this judge's courtroom. In any event, the court received an orienting presentation from counsel and heard statements from two of defendant's relatives supporting his application. The court then made a schedule for receiving the State's written response and considering the matter further.

On November 17, 2008, the matter was before the court again. Defendant was present at this session, also; and, although no appearance of counsel on his behalf was formally entered, the transcript discloses that the same attorney as appeared on defendant's behalf in the August 22 session was present in court, answering in the affirmative to the following question from the court:

I believe as part of [the last proceeding], I told him that when he got a little bit closer to the stip date, to refile [the motion] and we would take another look at it, which he did, that's what he's just done. Correct, I got that right?

The court went on:

[S]ince that date[, January 2005], the Appellate Division has said that the original sentence is not excessive or unduly punitive. And didn't constitute abuse of discretion. That doesn't have anything to do with me, that has to do with the sentencing judge and the actual sentence that was imposed. And if I have it right, the sentence was a top number of 45 years, Mr. Covington?


THE COURT: And it was 22 and a half stip, right?


THE COURT: And Mr. Covington has served how much of that 22 and a half?

[DEFENDANT]: Eighteen years.

THE COURT: Eighteen, right, you have four more to go. And that was a discretionary stip, it wasn't [a] mandatory stip. So from the procedural standpoint, the Court can entertain this.

In other words, this isn't something that is barred by law. It's something that

I have to take a look at and decide in my discretion whether or not I should now let him go into . . . an 18[-]month rehab.

The judge noted, however, that the State had not yet had "a chance to file some of the response." He continued the matter until December 5, 2007, and the following colloquy ensued:

MR. HARDING [for the State]: Is this a pro se motion or --


MR. HARDING: -- or are you represented now by an attorney?

THE COURT: No, he's pro se.


THE COURT: You want me to appoint a lawyer for you, Mr. Covington?

[DEFENDANT]: If it will help.

THE COURT: Well, . . . it could always help you. . . . I know . . . there was a letter here from a lawyer -- who I think you thought represented you and then he said, no, I do not represent you.

Because I'm thinking that . . . your papers are good, don't get me wrong. I don't know whether a lawyer is going to add to it, but it might just be something that . . . .

Let me bring you back on December 5th, at least let me get papers filed from the other side. And then we'll make a decision whether you want to have a lawyer at that point to take a look at it.

As the proceeding wound to a close, the judge, in response to a comment from defendant that could be seen as critical of the delays that had ensued, said:

THE COURT: . . . . I think in terms of what you have done in the state prison system so far is outstanding. You have done all the things that we expect people to do.

The only little hang up here right now is I have to let the prosecutor respond and I have to take a little bit closer look at the case, because you have to remember, you have a 45 top number and a 22 and a half bottom number.

As far as your rehabilitation and what you have done, you probably . . . have satisfied the first prong of the test here, in terms of what . . . you have to do.

But the second prong is on me, and I have to take a look at the offense, the nature of the offense, the original sentence, and the punitive aspect. And I have to decide whether that punitive aspect has been satisfied or not.

That's really something -- but I'll be quite honest with you, I don't need to hear more good things about you. I believe you have been a model prisoner and a model person, and you probably have changed your life around as much as anybody.

The question becomes now -- so that's over here. Now I have this other thing that have to look at, which is society's interest and the punitive aspect. And I have got to look and see . . . whether I can justify putting you in an 18 month -- because if I do that, I significantly reduce your sentence. But 18 and a half years is no . . . joke, either, you have served that much of your sentence. So, let's take a look at it, I have got to look at everything.

Let me take a look at it. All right. We'll do the right thing for you. When the matter resumed, as scheduled, on December 5, 2008, the court once again noted defendant's pro se status. The State placed its position on the record, essentially that defendant had not satisfied McKinney (supra, 140 N.J. Super. 160) requirements in that he had not established that he was addicted to drugs or alcohol and, thus, eligible for a rehabilitation program of the type he sought. The State stressed that, at the time of his pre-sentence report interview, defendant had denied any dependency on drugs, acknowledging only occasional drinking of alcohol; that his prison record showed no indicia of drug or alcohol dependency; and that, despite extensive involvement in rehabilitation and growth programs of various sorts over the years, there had been no such activity that connoted a drug or alcohol dependency, apart from a single twelve-session involvement with Alcoholics Anonymous about thirteen years into his prison term. The State argued that the indicated willingness of a single substance rehabilitation institution to accept defendant -- as had been proffered -- was insufficient to meet his burden under McKinney. Finally, the State pointed out that defendant's juvenile record lacked any indicia of drug dependency, i.e., no drug-related arrests or charges that might suggest such an involvement.

The State also pointed out that Department of Corrections records listed May 2, 2013 as defendant's parole eligibility date and March 24, 2016 as the date his maximum term will have been served. The prosecutor argued that, although defendant's application was not legally barred because of the discretionary nature of his parole ineligibility period (see State v. Farrington, 229 N.J. Super. 184, 186 (App. Div. 1988)), the nature and circumstances of the crime, the record to date, and the interests of society militated against the relief defendant sought.

Defendant, in his response, noted his rehabilitative efforts during his prison term and his lack of sophistication at the time of the crime and thereafter. He stressed that he had indeed been involved with alcohol and drugs, even on the day of the crime, notwithstanding he denied dependence or heavy use in his pre-sentence report interview. He contended that he had been inadequately represented at trial and thereafter. He also indicated surprise regarding the State's posture that he did not meet McKinney standards, because no mention of that position had been made previously, either in the instant matter or at the time his 2004 application had been considered.

At the close of the December 5, 2008 hearing, the court rejected defendant's application on the basis that he did not meet McKinney standards. The judge ended with encouraging words for defendant, expressing the hope that, when the time came, the Parole Board would recognize and reward his progress.

With respect to the only issue raised on appeal, we note that the record before us reveals no clear request by defendant for the assignment of counsel at any time during the proceedings we have recounted. Nevertheless, it seems clear that, at various points in the proceedings, the motion judge announced a sense that defendant and the process would be benefited if he were represented by counsel.

In any event, at the time this matter was considered in the trial court, no express authorization existed for assigning counsel to a defendant moving for Rule 3:21-10 relief. Since then, effective September 1, 2009, the Rule has been amended to provide:

On any motion filed pursuant to this rule, upon a showing of good cause, the court may assign the Office of the Public Defender to represent the defendant.

[R. 3:21-10(c).]

The McKinney requirements, while easily stated, can be circumstantially intricate to apply, as this case demonstrates.

We take no issue with the motion judge's announced understanding of the standards governing applications of this type or with his statement outlining the scope of his discretion. We also respect the judge's articulated sense that both defendant and the process would be assisted if an attorney were available to counsel defendant, develop and refine the arguments to be advanced on his behalf, and bring to this conceptually and circumstantially complex matter the mature insights and arts of persuasion that the subject matter and defendant's particulars require.

Accordingly, applying the current clause in Rule 3:21-10(c) that permits the assignment of counsel in appropriate cases, we vacate the order denying defendant's motion for a change of custodial sentence pursuant to Rule 3:21-10(b)(1), and we remand the matter for the assignment of counsel and reconsideration by the trial court.


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