On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 03-05-0997-C and 03-06-1048-C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Wefing.
Defendant appeals from a trial court order denying his motion for change of custody to permit him to enter a drug treatment program, Rule 3:21-10(b)(1). After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant was charged under two separate indictments. Under Indictment No. 03-05-997-C he entered a negotiated plea of guilty to one count of first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and 5b(1). Under Indictment 03-06-1048-C he entered a negotiated plea of guilty to one count of second-degree eluding a police officer, N.J.S.A. 2C:29-2b and one count of third-degree possession of a handgun, N.J.S.A. 2C:39-5b. Defendant appeared before the trial court for sentencing on December 3, 2004. For the first offense, the trial court sentenced defendant to twelve years in prison, with a seventy-month period of parole ineligibility. For the second two offenses, the trial court sentenced defendant to concurrent terms aggregating ten years in prison, with a five-year period of parole ineligibility, to be served concurrently with the twelve-year sentence. Defendant appealed to this court, and we affirmed. State v. Williams, No. A-2180-04 (App. Div. June 19, 2006).
Defendant thereafter filed a motion for a change in custody; defendant asserts that he filed the motion in late January or early February 2009. In any event, the trial court denied his motion on March 26, 2009. The trial court noted in its letter opinion that defendant had to serve the entire period of his parole ineligibility before he would be eligible to be considered for transfer to an in-patient drug rehabilitation program.
Defendant has appealed. He argues that he was sentenced under N.J.S.A. 2C:43-6f. This statute makes mandatory an extended-term sentence for an individual previously convicted of "manufacturing, distributing, dispensing or possessing with intent to distribute a controlled dangerous substance...." He notes that under N.J.S.A. 2C:43-6f, the period of parole ineligibility may range from one-third to one-half of the sentence imposed. From that, he contends that only forty-eight months of his parole ineligibility was mandatory and that the remaining twenty-two months were discretionary. Because he had served in excess of forty-eight months, his mandatory minimum, he argues he should have been deemed eligible for transfer to a drug-treatment program.
The record which defendant has placed before us does not permit us to accept these contentions at face value. Defendant was charged and pled guilty to a first-degree offense; if he were sentenced under N.J.S.A. 2C:43-6f, as he contends, his sentence would have exceeded twelve years.
The State argues that defendant's period of parole ineligibility was calculated in accordance with the guidelines formulated under State v. Brimage, 153 N.J. 1 (1998). His entire period of parole ineligibility, it argues, was mandatory, making him ineligible at the time for such a transfer of custody. It has not supplied us with the guidelines worksheets that would have accompanied a Brimage plea and sentence, and thus we cannot pass upon the accuracy of its representations.
We have noted that the trial court in its letter opinion of March 26, 2009, stated that defendant would be eligible to apply for a change in custody under Rule 3:21-10(b) in October 2010. In light of the short interval between our disposition of defendant's appeal and his eligibility date, we have concluded that there is no substantial benefit to defendant to remand this matter to permit the record to be supplemented to permit us to resolve these factual disputes. We are concerned that such a step would serve only to delay any final resolution of the question whether defendant has established the requisite conditions for such a transfer of custody. We thus affirm the trial court's order substantially for the reasons stated in its letter opinion of March 26, 2009. Defendant is free to submit a new application on his first date of eligibility.
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