On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 07-09-927.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 17, 2012
Before Judges Ashrafi and Hayden.
Defendant Floyd Taylor appeals from an order dated October 7, 2011, denying his application for a change of his sentence of imprisonment to a sentence permitting his entry into a drug treatment and rehabilitation program. We affirm.
Defendant was facing multiple charges brought in three separate indictments. His criminal record included a 2004 conviction for second-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35- 5a(1). On January 6, 2009, defendant entered into a plea agreement with the State and pleaded guilty the same day to charges contained in each of the three pending indictments. On June 4, 2009, he was sentenced as follows in accordance with the plea agreement, all sentences to run concurrently:
Count 8 of Gloucester County Indictment No. 07-09-00927-I, second-degree possession of a firearm by a convicted person, N.J.S.A. 2C:39-7b - 7 years imprisonment with a mandatory 5-year period of parole ineligibility; Count 2 of State Indictment No. 08-06-00145-S, third-degree distribution of cocaine in a school zone, N.J.S.A. 2C:35-7 - 5 years imprisonment with a mandatory 3-year period of parole ineligibility; Count 4 of the same indictment, second-degree possession of a firearm by a convicted person, N.J.S.A. 2C:39-7b - 5 years imprisonment with a mandatory 5-year period of parole ineligibility; and Count 1 of Gloucester County Indictment No. 08-01-00025-I, third-degree aggravated assault, N.J.S.A. 2C:12-1b(7) - 3 years imprisonment with no period of parole ineligibility. In September 2011, defendant filed a motion for a change of sentence pursuant to Rule 3:21-10(b). He sought to enter into a drug treatment and rehabilitation program in lieu of his aggregate sentence of 7 years imprisonment with 5 years of parole ineligibility. The trial court denied the motion on grounds that the motion was untimely and that defendant had not completed his period of parole ineligibility.
On appeal, defendant argues:
THE JUDGE ERRED BY DENYING APPELLANT'S MOTION FOR A CHANGE IN CUSTODY BY ALLEGING THAT HE IS PROCEDURALLY BARRED AND HAS NOT YET SERVED A 5-YEAR MANDATORY MINIMUM PAROLE INELIGIBILITY.
Defendant's argument has no merit.
As we held in State v. Mendel, 212 N.J. Super. 110 (App. Div. 1986), the court may not reduce a sentence below a term of parole ineligibility mandated by statute. We explained in Mendel:
There is a distinction between an ineligibility term required by statute and one imposed as a matter of discretion by the court. An application may be made under R. 3:21-10 when the defendant is serving a parole ineligibility term imposed by the court but not required by statute as a mandatory sentence. When defendant is serving a period of parole ineligibility imposed as a matter of discretion, the court can consider an application under R. 3:21-10(b) in accordance with the standards for consideration of such an application. . . .
However, a sentence cannot be changed or reduced under R. 3:21-10(b) below the parole ineligibility term required by statute. R. 3:21-10(b) was never intended to permit the change or reduction of a custodial sentence which is required by law. In any event, R. 3:21-10 must be read in light of those provisions of the Code of Criminal Justice which require parole ineligibility terms. Where a parole ineligibility term is required or ...