February 6, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PAULA K. MASTRO, A/K/A PAULA KASMAN, PAULA ANN MASTRO, MASTRO KASMAN, PAULA KASMAN MASTRO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-12-1003.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 9, 2011
Before Judges R. B. Coleman and Lihotz.
We review this matter on remand from the Supreme Court. Defendant Paula K. Mastro appeals from the maximum five-year sentence imposed by the trial court for violation of the terms of her previously imposed probationary sentence (VOP), N.J.S.A. 2C:45-3a(4), and a consecutive sentence entered on the separately charged offense of joyriding, N.J.S.A. 2C:20-10d, to which defendant pled guilty. The plea agreement for the latter offense provided for a term of 180 days in the county jail, which would be suspended if defendant enrolled in and completed a substance abuse treatment program. At sentencing, when defendant had not completed the treatment program, the trial judge "abated the plea understanding" and sentenced defendant to 180 days in the county jail for joyriding and five years in prison for the VOP. The court ordered the sentences to run consecutively.
Since filing her appeal, defendant has completed the imposed sentence and has been released. These circumstances render her appeal moot. Accordingly, we dismiss.
On January 20, 2005, defendant pled guilty to the third-degree offenses of burglary, N.J.S.A. 2C:18-2; theft by deception, N.J.S.A. 2C:20-4; fraudulent use of a credit card, N.J.S.A. 2C:21-6h; and identity theft, N.J.S.A. 2C:21-17a. The remaining charges in the indictment were dismissed by the State. In exchange for her guilty plea, the State recommended a three-year probationary sentence, with the special condition that she serve thirty days in the county jail, which was suspended.
Defendant was also to obtain a drug evaluation and comply with recommended treatment and pay restitution and other penalties and assessments. Defendant was sentenced in accordance with the plea agreement.
While still on probation, defendant was arrested when riding in a stolen vehicle driven by her daughter. Defendant was charged with violating probation because of the new offense and because she tested positive for cocaine and heroin on three occasions.
Defendant pled guilty to joyriding and VOP in exchange for the State's recommendation of 180 days in the county jail, which would be suspended upon her successful completion of six months in a drug rehabilitation program. Defendant entered the substance abuse treatment program, but was discharged for failing to comply with the rules. Thereafter, the State consented to delay sentencing on the probation violation subject to defendant's enrollment in a long-term inpatient substance abuse treatment program.
Defendant failed to enroll as required. Therefore, the sentencing judge imposed a 180-day county jail term for joyriding and a consecutive five-year term for the VOP, ordering the two sentences to be served consecutively.
On February 2, 2009, we considered defendant's challenges on an excessive sentencing oral argument calendar. We affirmed the sentence imposed. Defendant's petition for certification was granted by the Supreme Court, which summarily reversed and remanded the matter requesting we "address whether the parties entered into a valid plea agreement and, if so, whether the sentence imposed was in accord with that agreement and controlling case law."
Defendant presents these issues for consideration:
BY IMPOSING A CONSECUTIVE FIVE YEAR SENTENCE ON THE VOP THE COURT VIOLATED THE TERMS UNDER WHICH DEFENDANT AGREED TO PLEAD GUILTY AND, CONSEQUENTLY, VIOLATED HER FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW.
IN THE ALTERNATIVE, THIS IS NOT THE "RARE CASE" WHERE A MAXIMUM CONSECUTIVE STATE PRISON TERM WOULD BE APPROPRIATE ON A VIOLATION OF PROBATION, AS THE TRIAL COURT FAILED TO CONSIDER THREE OF THE PREVIOUSLY FOUND MITIGATING FACTORS NOT NEGATED BY DEFENDANT'S VIOLATION OF PROBATION AND IT IMPROPERLY CONSIDERED A NON-STATUTORY AGGRAVATING FACTOR TO IMPOSE A MAXIMUM CONSECUTIVE TERM.
A. BECAUSE THE SENTENCING COURT ERRONEOUSLY FAILED TO CONSIDER MITIGATING FACTORS (1), (6) AND (12), A MAXIMUM CONSECUTIVE SENTENCE TO STATE PRISON WAS WRONGLY IMPOSED.
B. THE SENTENCING COURT ERRONEOUSLY CONSIDERED A NON-STATUTORY AGGRAVATING FACTOR NOT BASED IN COMPETENT CREDIBLE EVIDENCE TO IMPOSE A MAXIMUM CONSECUTIVE TERM.
Defendant was released from custody on October 29, 2010, prior to our listing her appeal for review.
Generally, "an intervening completion of a custodial sentence will not affect [a] defendant's right to appeal from the underlying conviction. Nor will it affect his [or her] right to challenge a probation revocation." Bd. of Tr. of Youth Corr. Ctr. v. Davis, 147 N.J. Super. 540, 543 (App. Div. 1977) (internal citations omitted). However, a criminal case will be moot "'if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the [issue] challenged[.]'" Ibid. (quoting Sibron v. New York, 392 U.S. 40, 57, 88 S. Ct. 1889, 1900, 20 L. Ed. 2d 917, 931-32 (1968)). Accord Spencer v. Kemna, 523 U.S. 1, 7, 118 S. Ct. 978, 983, 140 L. Ed. 2d 43, 50 (1998).
Defendant does not argue the legality of her convictions; rather, she objects only to the excessiveness of the sentence imposed, in light of the terms of the plea agreement. Were we to agree defendant's sentence was error, defendant has no reason to seek modification because she has served the maximum term applicable to the offenses, leaving no justiciable issue for review. A reversal and remand would be a purely academic exercise. See N.J. State Parole Bd. v. Boulden, 156 N.J. Super. 494, 497 (App. Div. 1978).
"It is firmly established that controversies which have become moot or academic prior to judicial resolution ordinarily will be dismissed." Cinque v. N.J. Dep't of Corrs., 261 N.J. Super. 242, 243 (App. Div. 1993). "An issue is moot when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." Greenfield v. N.J. Dep't of Corrs., 382 N.J. Super. 254, 257-58 (App. Div. 2006) (internal quotation marks and citations omitted). This is rooted in the longstanding position of our courts to avoid rendering "advisory opinions or function[ing] in the abstract." Jackson v. Dep't of Corrs., 335 N.J. Super. 227, 230 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001).
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