Opinion
DOCKET NO. A-6253-11T3
09-05-2014
STATE OF NEW JERSEY, Plaintiff-Appellant, v. CHRISTOPHER DENT, Defendant-Respondent.
Carol Novey Catuogno, Assistant Prosecutor, argued the cause for appellant (John L. Molinelli, Bergen County Prosecutor, attorney; Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief). Daniel V. Gautieri, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Mr. Gautieri, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano, Sabatino and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 10-06-1165. Carol Novey Catuogno, Assistant Prosecutor, argued the cause for appellant (John L. Molinelli, Bergen County Prosecutor, attorney; Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief). Daniel V. Gautieri, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Mr. Gautieri, of counsel and on the brief). PER CURIAM
Pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), any person convicted of the unlawful possession of a firearm, N.J.S.A. 2C:39-5b, "shall be sentenced to a term of imprisonment . . . ." At all times relevant to the facts in this case, the Graves Act further required that "[t]he term of imprisonment shall include the imposition of a minimum term[,] . . . fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater . . . during which the defendant shall be ineligible for parole." N.J.S.A. 2C:43-6(c) (2010). In certain circumstances, the so-called Graves Act "escape valve," N.J.S.A. 2C:43-6.2, permits relief from the statute's mandatory minimum requirements. That section provides in relevant part:
The Legislature recently amended N.J.S.A. 2C:43-6(c), L. 2013, c. 113, § 2, eff. August 8, 2013, to increase the periods of parole ineligibility, such that the statute now provides:
The minimum term shall be fixed at one-half of the sentence imposed by the court or [forty-two] months, whichever is greater . . . during which the defendant shall be ineligible for parole.
On a motion by the prosecutor made to the assignment judge that the imposition of a mandatory minimum term of imprisonment under [the Graves Act] for a defendant who has not previously been convicted of an offense under that subsection . . . does not serve the interests of justice, the assignment judge shall place the defendant on probation . . . or reduce to one year the mandatory minimum term of imprisonment during which the defendant will be ineligible for parole. The sentencing court may also refer a case of a defendant who has not previously been convicted of an offense under that
subsection to the assignment judge, with the approval of the prosecutor, if the sentencing court believes that the interests of justice would not be served by the imposition of a mandatory minimum term.
[Ibid. (emphasis added).]
On June 29, 2010, the Bergen County grand jury returned Indictment No. S-1165-10, charging defendant Christopher Dent with third-degree financial facilitation of criminal activity, N.J.S.A. 2C:21-25a (count one); third-degree possession of a controlled dangerous substance ("CDS"), oxycontin, N.J.S.A. 2C:35-10(a)(1) (count two); second-degree possession of a firearm without a permit, N.J.S.A. 2C:39-5(b) (count three); and third-degree possession of hollow-point bullets, N.J.S.A. 2C:39-3(f) (count four). As we explain in more detail below, defendant pled guilty to counts two and three and was sentenced in accordance with the plea bargain to a three-year term of imprisonment, with a three-year period of parole ineligibility.
Several months later, defendant moved for a change of sentence, pursuant to Rule 3:21-10 (the "Rule"), which provides:
(a) Time. Except as provided in paragraph (b) hereof, a motion to reduce or change a sentence shall be filed not later than 60 days after the date of the judgment of conviction. The court may reduce or change a sentence, either on motion or on its own initiative, by order entered within [seventy-five] days from the date of the judgment of conviction and not thereafter.The trial judge denied defendant's motion, but, nearly one year later, on virtually identical grounds, defendant sought the same relief before a different judge ("the motion judge"). Over the State's objection, and citing case law but not a specific provision of the Rule authorizing consideration of defendant's belated second application, the motion judge entered an order on August 3, 2012 reducing defendant's period of parole ineligibility to one year. She subsequently entered a conforming amended judgment of conviction. In reaching her decision, the motion judge determined that the prosecutor had acted arbitrarily and capriciously by not offering defendant a plea bargain in accordance with the Graves Act escape valve.
(b) Exceptions. A motion may be filed and an order may be entered at any time (1) changing a custodial sentence to permit entry of the defendant into a custodial or non-custodial treatment or rehabilitation program for drug or alcohol abuse, or (2) amending a custodial sentence to permit the release of a defendant because of illness or infirmity of the defendant, or (3) changing a sentence for good cause shown upon the joint application of the defendant and prosecuting attorney, or (4) changing a sentence as authorized by the Code of Criminal Justice, or (5) correcting a sentence not authorized by law including the Code of Criminal Justice, or (6) changing a custodial sentence to permit entry into the Intensive Supervision Program, or (7) changing or reducing a sentence when a prior conviction has been reversed on appeal or vacated by collateral attack.
[(Emphasis added).]
On appeal, the State of New Jersey challenges the August 3, 2012 order and the amended judgment of conviction. It contends that the motion judge lacked authority under the Rule to consider defendant's untimely second motion for reduction of his sentence. Moreover, the State argues that the judge erred in modifying the sentence, which was in accordance with the plea bargain and the Graves Act and did not result from the arbitrary or capricious exercise of the prosecutor's discretion.
Defendant counters by arguing that the State's appeal is barred by our Court Rules and principles of double jeopardy. Additionally, defendant contends that the motion judge properly exercised her discretion to modify and reduce the sentence which, he claims, resulted from the prosecutor's abuse of discretion in not consenting to relief pursuant to the Graves Act's escape valve.
We conclude that the State's appeal is not barred by our Court Rules or considerations of double jeopardy. We also conclude that the judge lacked authority to consider defendant's second time-barred motion for modification and reduction of his sentence. We therefore reverse, and remand the matter to the Law Division for further proceedings consistent with this opinion.
I.
On November 15, 2010, represented by counsel and pursuant to a plea bargain, defendant entered a guilty plea to counts two and three of the indictment. In return, the State agreed to dismiss the balance of the indictment and recommend a sentence of three years, with a three-year period of parole ineligibility pursuant to the Graves Act. The parties also agreed that the sentence would not be imposed until 2011, and the State would file a separate civil forfeiture action regarding more than $31,000 found in defendant's possession at the time of his arrest.
Implicit in the State's recommendation was an agreement to downgrade the weapons offense from a second-degree to a third-degree crime. See N.J.S.A. 2C:44-1(f)(2) (providing that when a defendant is convicted of a first- or second-degree crime, and "the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted").
The plea form states that the sentence "shall be after Jan[uary] 1, 2010." However, the record suggests that this was a clerical mistake, and that defendant was not to be sentenced until after January 1, 2011.
During his colloquy with the trial judge, defendant admitted that he understood the terms of the plea agreement, and was entering his guilty plea voluntarily, after having had adequate time to discuss it with his attorney. Defendant supplied a factual basis in which he admitted that on March 10, 2010, police stopped the motor vehicle he was driving and found Oxycontin and a .40 caliber handgun. Defendant explained that he legally purchased the gun in West Virginia but had no permit to carry the weapon.
Sentencing took place on January 21, 2011 before the same judge who had accepted defendant's guilty plea. Defense counsel noted that because the plea was entered pursuant to the Graves Act, the judge did not "really have much control . . . when it comes to the time of sentencing." Nevertheless, she brought several mitigating factors to the judge's attention: defendant had developed a drug addiction at a young age and had sought treatment for it, ultimately enlisting in the Army in 2005; he later developed an addiction to Oxycontin after sustaining back injuries while in Iraq; he was not familiar with the New Jersey law that required a permit to carry a handgun, since he resided in West Virginia where there was no such requirement; and he was a first-time offender. The prosecutor, who was not the same prosecutor who represented the State at the plea hearing, asked the judge to impose sentence in accordance with the plea bargain.
In rendering the sentence, the judge noted he "really ha[d] no choice because of the Graves Act." However, he recognized "some factors . . . that if this matter can be revisited at a later date, . . . might be helpful for . . . defendant." The judge told defense counsel, "[y]ou know what you have to file, okay."
The judge found aggravating factors three and nine, N.J.S.A. 2C:44-1(a)(3) (the risk of re-offense); (a)(9) (the need to deter). The judge also found mitigating factors seven and eleven, N.J.S.A. 2C:44-1(b)(7) (lack of prior criminal activity); (b)(11) (imprisonment would cause excessive hardship to defendant and his dependents). He imposed concurrent sentences of three years with a three-year period of parole ineligibility on each count.
The sentence on count two, possession of CDS, was an illegal sentence because the period of parole ineligibility was discretionary and could not exceed one-half of the sentence. N.J.S.A. 2C:43-6(c).
Defendant filed a motion for reduction of his sentence. Although the appellate record does not include that motion or any supporting documents, the trial judge entered an order on September 8, 2011, which itself sets forth the basis of defendant's application, as well as the judge's reasoning for denying the motion.
Defendant then sought reconsideration of the sentence pursuant to subsections (b)(1) and (b)(4) of the Rule, arguing that the sentence imposed was "contrary to legislative intent." However, the trial judge reasoned that the Legislature included unlawful possession of a firearm as one of those crimes that triggered application of the Graves Act. He also noted that defendant "very well could have attempted to have the State waive such requirements. However, . . . defendant did not do so and voluntarily pled guilty with full knowledge of these mandatory terms." (Emphasis added). The judge also considered whether defendant was eligible to enter a treatment program under subsection (b)(1) of the Rule. Citing our opinion in State v. Mendel, 919 N.J. Super. 110 (App. Div. 1986), the judge concluded that such "relief . . . is not available until a statutorily prescribed mandatory term has been served."
Nearly one year later, on July 27, 2012, defendant again moved for reduction of his sentence. The notice of motion was directed not to the trial judge, but rather to the motion judge. In support, counsel's certification essentially reiterated all the facts previously brought to the trial judge's attention at sentencing. She also stated that defendant's prior motion was "incorrectly . . . referred to" the trial judge. The State filed opposition.
The motion judge heard argument on August 3, 2012. She began by noting that the motion was properly before her because "all the Graves Act matters, the motions to waive the Graves Act[,] but also all the Graves Act sentencings are supposed to be before me." The judge stated that "somehow, this was scheduled before [the trial judge], unbeknownst to me, and . . . when I received the motion papers I did have [the trial judge] send the file over here because I am supposed to do all the Graves Act sentences, and he agreed[.] . . . [T]hat's why I have [the motion] now."
We note that pursuant to the express terms of the Graves Act's escape valve, only motions brought by the prosecutor seeking a waiver, or referrals made by the sentencing judge, are to be addressed to the vicinage assignment judge. N.J.S.A. 2C:43-6.2. We assume the motion judge, who was not the assignment judge, was referring to a local vicinage policy appointing her as the assignment judge's designee. We also note that, unless there was a local vicinage policy or custom to the contrary, since neither the prosecutor nor the sentencing judge in this case sought to invoke the provisions of the escape valve, the case seemingly would not have necessarily required that it be referred to any judge other than the trial judge.
Defense counsel explained that the motion actually sought a "waiver of the Graves Act." She recounted the arguments she made at sentencing, and stated, "I don't want to say it, but based on my ignorance I didn't even know that I was supposed to go before [you (the motion judge)] and request a waiver." (Emphasis added). Defense counsel further explained that she sought a "waiver" from the trial prosecutor but was refused.
Although frequently interrupted by the judge, who repeatedly asked if the prosecutor had sought approval of the "front office" or "a supervisor" of a plea offer pursuant to the Graves Act escape valve, the prosecutor noted her objections. Essentially, she explained the State's reasons for offering the particular plea bargain to defendant, and what distinguished the facts of defendant's case from others in which the State sought a waiver.
We need not recite the extended colloquy that followed between the motion judge and the prosecutor, except to say the judge questioned most of the assertions made by the prosecutor. Without citing any provision of the Rule that permitted her to reduce or change defendant's sentence, the judge reconsidered the aggravating and mitigating sentencing factors anew. She rejected the trial judge's finding that defendant was a risk to re-offend.
The judge found additional mitigating factors not found by the trial judge. She noted that despite being a negotiated plea agreement, "I can't just give stips [stipulations of parole ineligibility] out . . . . I have to find aggravating factors that . . . substantially outweigh the mitigating factors." The prosecutor objected to the judge "changing" the aggravating and mitigating sentencing factors found by the trial judge; the judge acknowledged that was so, but reasoned it was appropriate "because [the trial judge] should never have done this case." The prosecutor further noted that the plea bargain accorded with the Graves Act, and the minimum three-year period of parole ineligibility was "mandated by the [L]egislature." The judge responded, "I know." The judge further explained that the prosecutor's agreement to downgrade the offense from a second-to third-degree meant defendant "d[id] not deserve the maximum."
In State v. Towey, 114 N.J. 69, 82 (1989), the Court recognized that "aggravating and mitigating factors play no part in a decision to impose a minimum term in Graves Act cases[,]" although the court may consider the aggravating and mitigating factors in setting the length of the minimum term.
The judge concluded that the various reasons offered by the State for not reducing the Graves Act minimum were insufficient "in light of all the other cases that I've seen." Repeating that somehow the case had mistakenly gone to the trial judge, the judge stated she was "going to change the sentence in accordance to what I believe the mitigating . . . and aggravating factors show . . . ." She reduced the period of parole ineligibility to one year.
The judge denied the prosecutor's request for a stay so as to appeal the judge's decision. The order of August 3, 2012 provided that defendant's sentence "shall be reduced to [three] years with [one] year parole ineligibility . . . ." On August 6, 2012, the motion judge entered an amended judgment of conviction, reducing defendant's sentence "effective January 21, 2011," to concurrent terms of three years imprisonment with a one-year period of parole ineligibility on each count. At the time the order and amended judgment of conviction were entered, defendant had already served the one-year period of parole ineligibility.
The State filed its appeal on August 17, 2012. On September 13, the motion judge filed a supplemental written statement of reasons pursuant to Rule 2:5-1(b), which stated that she amended defendant's sentence pursuant to N.J.S.A. 2C:43-6.2, and our decisions in State v. Alvarez, 246 N.J. Super. 137 (App. Div. 1991), and State v. Mello, 297 N.J. Super. 452 (App. Div. 1997). Reiterating many of the facts regarding the case and defendant's background that she cited during her oral decision, the judge concluded:
We granted defendant's motion to supplement the record. Those supplemental materials indicate that in November 2012, defendant filed a request with the New Jersey Parole Board to serve his maximum sentence. We were further advised that he was released from custody in January 2013.
The State's decision to incarcerate addicts and the mentally ill with a maximum Graves Act sentence is an abuse of discretion.
Furthermore, the State's decision to refuse to consider a lesser sentence for a first-time offender in this case is arbitrary, capricious, and an abuse of prosecutorial discretion as it considered factors of violence and other crimes that could have been committed by the defendant but are not supported by the record. It is also a denial of equal protection constituting a clear injustice because in other cases that I have reviewed similar to these facts[,] defendants have received probation or the Pre-Trial Intervention Program.
II.
We first consider defendant's argument that the State's appeal should be dismissed because our Court Rules do not permit the State to appeal a sentence, and because under the particular facts of this case, the appeal violates constitutional protections against double jeopardy.
Rule 2:3-1 provides in relevant part:
In any criminal action the State may appeal . . .In particular, subsection (b)(6) reflects the well-settled principle that generally, absent "explicit statutory authority, the State has no right to appeal a sentence." State v. Cannon, 128 N.J. 546, 573 n.13 (1992) (citing State v. Watson, 183 N.J. Super. 481, 483 (App. Div.), certif. denied, 91 N.J. 530 (1982)); see also State v. Roth, 95 N.J. 334, 343 (1984); State v. Veney, 327 N.J. Super. 458, 461 (App. Div. 2000) ("These restrictions of the State's right to appeal rest upon the principle that appeals of sentences implicate the Double Jeopardy Clauses of the federal and state constitutions, U.S. Const. amend V; N.J. Cons[t]. art. I, ¶ 11." (citing Roth, supra, 95 N.J. at 344-45)).
(a) . . . ;
(b) to the appropriate appellate court from: (1) a judgment of the trial court dismissing an indictment, accusation or complaint, where not precluded by the constitution of the United States or of New Jersey; (2) an order of the trial court entered before trial in accordance with R. 3:5 (search warrants); (3) a judgment of acquittal entered in accordance with R. 3:18-2 (judgment n.o.v.) following a jury verdict of guilty; (4) a judgment in a post-conviction proceeding collaterally attacking a conviction or sentence; (5) an
interlocutory order entered before, during or after trial, or, (6) as otherwise provided by law.
[(Emphasis added).]
Contrary to the State's counterargument, Rule 2:3-1(b)(6) is not applicable because there is no provision in the Graves Act that explicitly permits the State to appeal a sentence imposed upon a defendant. Compare N.J.S.A. 2C:44-1(f)(2) (providing for the State to appeal a sentence imposed under the Code's downgrade provision), with N.J.S.A. 2C:35-14(j) (permitting the State to appeal the court's decision to suspend residential substance abuse treatment).
Rather, the State's appeal is permitted by subsection (b)(4) of the Rule, since the amended judgment of conviction resulted from defendant's post-conviction collateral attack on his sentence. Indeed, we have often recognized the State's right to appeal from an adverse decision made pursuant to the Rule. See, e.g., State v. E.R., 273 N.J. Super. 262, 264-65 (App. Div. 1994) (considering the State's appeal from a modification of sentence entered pursuant to subsection (a) of the Rule); State v. Wright, 221 N.J. Super. 123, 130 (App. Div. 1987) (reversing on the State's appeal the trial court's modification of sentence); State v. Sanducci, 167 N.J. Super. 503, 506, 511-12 (App. Div.) (on the State's cross-appeal, reversing the trial court's decision to reduce the defendant's custodial sentence because it lacked jurisdiction), certif. denied, 82 N.J. 263 (1979); State v. Williams, 139 N.J. Super. 290, 297 (App. Div. 1976) ("[M]odifications under . . . R[ule] 3:21-10(b), are appealable by the State."), aff'd o.b., 75 N.J. 1 (1977).
Defendant next argues that the State's appeal is not cognizable because the motion judge denied the State's request for a stay, the State never sought a stay from this court, and he has already served his sentence; thus, reversal of the modified sentence and imposition of the original sentence would violate constitutional double jeopardy protections. The State's counterargument is that the modified sentence was "illegal," and hence not insulated from challenge by considerations of double jeopardy. We disagree with the State's argument.
As the Court recently said, "[t]here are two categories of illegal sentences: (1) those that exceed the penalties authorized by statute for a particular offense and (2) those that are not in accordance with the law, or stated differently, those that include a disposition that is not authorized by our criminal code." State v. Schubert, 212 N.J. 295, 308 (2012) (citing State v. Murray, 162 N.J. 240, 246-47 (2000)). The modified sentence in this case was not illegal, since it was specifically permitted by the provisions of the Graves Act escape valve.
However, we do agree that the State's appeal is not barred by principles of double jeopardy. The double jeopardy provisions of the United States Constitution and New Jersey's Constitution provide "three forms of protection to a defendant[,]" including insulating him or her from the "imposi[tion] . . . [of] 'multiple punishments for the same offense.'" Id. at 304-05 (quoting Jones v. Thomas, 491 U.S. 376, 380-81, 109 S. Ct. 2522, 2525, 105 L. Ed. 2d 322, 331 (1989)). "This protection against multiple punishments may be implicated when a state seeks an increase in a defendant's sentence on appeal." State v. Sanders, 107 N.J. 609, 618 (1987). As a general proposition, jeopardy attaches once the defendant has commenced serving his prison term. State v. Ryan, 86 N.J. 1, 10 (1981). However, "the touchstone of the double jeopardy analysis lies in the expectation of finality that a defendant vests in his sentence." Sanders, supra, 107 N.J. at 619 (citing United States v. DiFrancesco, 449 U.S. 117, 129, 101 S. Ct. 426, 433, 66 L. Ed. 2d 328, 340 (1980)).
Thus, as a general rule, "[a]n illegal sentence may be corrected at any time because a defendant has no expectation that an illegal sentence is final." State v. Johnson, 376 N.J. Super. 163, 170 (App. Div.), certif. denied, 183 N.J. 592 (2005); see also R. 3:21-10(b)(5). We have said that "a defendant has no expectation of finality in a sentence where the State has a right of appeal, at least until all avenues of appeal have been exhausted." State v. Faunce, 244 N.J. Super. 499, 502 (App. Div. 1990) (citing Sanders, supra, 107 N.J. at 619). This is particularly true when the State's appeal results from defendant's own application to change or reduce his sentence.
In State v. Cruz, 232 N.J. Super. 294, 297 (App. Div. 1989), rev'd on other grounds, 125 N.J. 550 (1991), the defendant was initially sentenced under Title 2A to two concurrent indeterminate terms, not to exceed thirty years. Id. at 296. Years later, the defendant sought to be resentenced pursuant to N.J.S.A. 2C:1-1(d), and two consecutive fifteen-year sentences were imposed. Id. at 297. The State appealed, arguing that periods of parole ineligibility should have been imposed for each sentence. Ibid. The defendant argued that imposition of a parole disqualifier violated his protection against double jeopardy. Ibid. We rejected the defendant's argument, explaining that "[t]he State's appeal [did] not violate principles of double jeopardy because defendant could have no expectation of finality since he initiated the proceedings to change his sentence." Ibid. (citing Sanders, supra, 107 N.J. at 609); State v. Rodriguez, 97 N.J. 263, 270-71 (1984)).
N.J.S.A. 2C:1-1(d)(2) provides:
Any person who is under sentence of imprisonment on the effective date of the code for an offense committed prior to the effective date . . . who has been sentenced to a maximum term of imprisonment for an offense committed prior to the effective date which exceeds the maximum established by the code for such an offense and who, on said effective date, has not had his sentence suspended or been paroled or discharged, may move to have his sentence reviewed by the sentencing court and the court may impose a new sentence, for good cause shown as though the person had been convicted under the code, except that no period of detention or supervision shall be increased as a result of such resentencing.
Although not addressing considerations of double jeopardy, in Wright, after granting a stay of the Law Division's order that modified the defendant's original custodial sentence and placed him on probation, we reversed, finding that the defendant had not met his burden for relief under the Rule. Wright, supra, 221 N.J. Super. at 126, 130. In Williams, pursuant to the defendant's motion, the judge modified the original custodial sentence of fourteen to fifteen years, suspended the balance of the custodial term, and placed the defendant on probation, conditioned on his successful completion of a drug treatment program. Williams, supra, 139 N.J. Super. at 292. There is no indication that the State sought a stay, but we nevertheless reversed the order, specifically rejecting the defendant's double jeopardy claims. Id. at 297-98, 301.
We recognize, as defendant urges, that the Court has recently noted that any increase of a defendant's sentence after it is already served violates the constitutional guarantees against double jeopardy. Schubert, supra, 212 N.J. at 313. But see State v. Chambers, 377 N.J. Super. 365, 369-70, 377 (App. Div. 2005) (rejecting the defendant's double jeopardy argument and reinstating the statutorily mandated period of license suspension even though defendant had completed the lesser, modified period of suspension imposed as a result of his motion for reconsideration). However, we think defendant's reliance in this regard upon Schubert is misplaced.
In Schubert, supra, 212 N.J. at 299, the defendant pled guilty to sexual assault pursuant to a negotiated plea. At his June 2000 sentencing hearing, the trial court imposed a three-year probationary sentence. Id. at 300. Defendant completed that probationary term in June 2003. Ibid. In October 2007, more than seven years after being sentenced and more than four years after the defendant had successfully completed his probationary sentence and had been discharged, the New Jersey State Parole Board wrote to the trial court, noting that the sentence did not contain any reference to community supervision for life ("CSL"), as required by N.J.S.A. 2C:43-6.4. Id. at 300-01. The Parole Board asked the trial court to advise whether defendant's sentence should be amended to include a provision for CSL. Ibid. In April 2008, the trial court entered an amended judgment of conviction imposing a CSL term. Ibid.
N.J.S.A. 2C:43-6.4(a) has now replaced community supervision for life with parole supervision for life.
The defendant filed a petition for post-conviction relief requesting that the trial court vacate the amended judgment. Id. at 302. He argued that the trial court lacked jurisdiction to amend the original judgment because he had already completed his sentence and including a CSL provision after he had fully completed his sentence constituted double jeopardy. Ibid. In opposition, the State argued that the original sentence was illegal because it omitted the statutorily-mandated CSL provision, and that as a result, the defendant could not have had a legitimate expectation of finality because illegal sentences can be corrected "at any time." Id. at 303.
The Court began its analysis in Schubert with an acknowledgment that defendant's sentence was indeed illegal because it did not include a term of CSL. Id. at 308-09. It explained, however, that even though subsection (b)(5) of the Rule permitted the correction of an illegal sentence "at any time," the phrase "at any time" was not intended to permit an enlargement of the punishment after the sentence imposed had been satisfied and the defendant discharged. Id. at 309 (citing State v. Laird, 25 N.J. 298, 307 (1957)). This comported with the fundamental principles of double jeopardy, in that the defendant held a legitimate expectation of finality in his original, albeit mistaken, sentence. Id. at 313. Accordingly, notwithstanding the illegality of the defendant's sentence, the State could no longer seek correction without violating constitutional double jeopardy provisions. Ibid.
The Court in Schubert distinguished two opinions of this court that reached contrary results, State v. Horton, 331 N.J. Super. 92 (App. Div. 2000), and State v. Cooke, 345 N.J. Super. 480, 490 (App. Div. 2001), certif. denied, 171 N.J. 340 (2002). The Court concluded Horton was distinguishable because "the State sought to amend the judgment of conviction prior to the completion of the defendant's probationary sentence, while in the present matter defendant had completed his probationary sentence and been discharged from probation for more than four years when the issue first arose." Schubert, supra, 212 N.J. at 310-11. The Court distinguished Cooke by noting:
In that case, however, the State appealed the sentence, and the defendant cross-appealed his conviction . . . . Because the issue of the defendant's sentence was properly before the court, the court could correct what was otherwise an illegal sentence. See State v. Kirk, 243 N.J. Super. 636, 643 (App. Div. 1990).Further, in addressing the dissent's argument that a defendant could have no legitimate expectation of finality if the sentence was illegal, see id. at 327 (Hoens, J., dissenting), the Court noted that when the defendant was sentenced, "there was no indication of any issue with respect to the validity of the sentence he originally received." Id. at 315. "Nor was there any indication of any issue with respect to [the] defendant's sentence during the entire time he served his probationary sentence." Ibid.
[Ibid.]
As already noted, in this case, the State has the right to appeal not only the propriety of the motion judge's decision, but, as we discuss below, whether she had any authority to entertain defendant's motion in the first instance. Moreover, the State made clear at the time of oral argument on defendant's motion that it intended to appeal; in fact, the motion judge specifically told the prosecutor the State was "free to appeal" her decision. And, the State filed its appeal before defendant completed his sentence. Lastly, and most importantly, the State does not seek to increase defendant's sentence; rather, it seeks re-imposition of the original lawful sentence.
In sum, the State's appeal does not violate double jeopardy principles because defendant cannot be said to have had a legitimate expectation of finality in the reduced sentence that resulted from a motion he filed, that the State opposed, and from which it had indicated it would exercise, and did exercise, its right to appeal in a timely fashion. The State also does not seek to impose an "enlarged" sentence upon defendant.
III.
We next consider the State's argument that the motion judge had no authority to reduce or change defendant's sentence. As already noted, although the motion judge relied on certain case law which we discuss below, she did not identify a particular section of the Rule that permitted her to consider defendant's second attempt to modify his sentence.
Defendant could not seek such relief under subsection (a) of the Rule, which required the motion "be filed not later than [sixty] days after the date of the judgment of conviction[.]" R. 3:21-10. Neither the parties nor the court may enlarge this deadline. R. 1:3-4(c). Defendant's first request to modify his sentence did not meet this deadline, and the second motion, filed eighteen months after defendant was sentenced, was also untimely.
By its stated terms, defendant's second motion for change of sentence sought relief pursuant to subsections (b)(1) and (b)(4) of the Rule. Both permit the motion to be filed "at any time." However, relief under subsection (1), which allows the court to change "a custodial sentence to permit entry of the defendant into a custodial or non-custodial treatment or rehabilitation program for drug or alcohol abuse," is not authorized while a defendant is serving a statutorily-imposed mandatory portion of a custodial sentence under the Graves Act. Mendel, supra, 212 N.J. Super. at 113-14. Moreover, there was no evidence that a treatment program was prepared to accept defendant.
In State v. Brown, 384 N.J. Super. 191, 196 (App. Div. 2006), we held that this prohibition only applied during the minimum statutory period of parole ineligibility, not the actual period of parole ineligibility imposed as part of a Graves Act sentence.
Subsection (b)(4) of the Rule permits a court to "chang[e] a sentence as authorized by the Code of Criminal Justice." As Judge Stern has explained:
Rule 3:21-10(b)(4) was adopted effective September 1, 1979, to implement the Code of Criminal Justice ("Code"), which became effective that day. The Code embodied N.J.S.A. 2C:1-1(d)(2) which permitted a defendant serving a sentence greater than the Code authorized maximum for an equivalent pre-Code offense, to move for resentencing under the Code. The new Rule accommodated that legislative desire and provisions of the Code authorizing the change or reduction of sentence. See Part III of the Report of the Criminal Practice Committee, 103 N.J.L.J. 413, 417 (1979). Thus, the Rule permits the implementation of a legislative scheme authorizing a change or reduction of sentence, which would otherwise be prohibited by the strict time limits of Rule 3:21-10(a).See also Pressler & Verniero, Current N.J. Court Rules, comment 2.4 on R. 3:21-10 (2014) ("The fourth exception to the rule provided for resentencing pursuant to N.J.S.[A.] 2C:1-1(d)(2) where the sentence imposed for a pre-Code crime exceeded the sentence for that crime prescribed by the Code.")
[State v. James, 343 N.J. Super. 143, 147 (App. Div. 2001) (citing State v. Velez, 119 N.J. 185 (1990); State v. G.B., 255 N.J. Super. 340 (App. Div. 1992); State v. Robinson, 198 N.J. Super. 602 (Law Div. 1984)).]
In Velez, supra, 119 N.J. at 186-87, without citing the Rule, the Court considered whether a defendant had the option to seek resentencing under the recently-enacted provisions of the Comprehensive Drug Reform Act, N.J.S.A. 2C:35-1 to -23, which specifically permitted the court with consent of the defendant to "impose sentence under the provisions of this chapter" "[i]n any case pending on or initiated after the effective date of th[e] act[.]" In addition to answering that issue in the negative, the Court permitted the defendant to raise issues regarding his sentence and ultimately remanded the matter to the Law Division for reconsideration. Id. at 188-89. Velez does not support the proposition that subsection (b)(4) permits a defendant to seek a change or reduction in sentence "at any time" as long as the proposed sentence is "authorized" by the Code.
The appeal in State v. G.B., 255 N.J. Super. 340, 342 (App. Div. 1992), presented "novel questions concerning the procedures and standards to be applied in reviewing sex offender sentences under" N.J.S.A. 2C:47-4(c), which permitted the Department of Corrections ("DOC") to seek modification before the sentencing court of a period of parole ineligibility imposed upon someone committed to the Adult Diagnostic and Treatment Center (the "ADTC"). The precise issue we faced was whether a defendant was "entitled to be present or represented by counsel at the hearing on the motion[.]" Ibid.
The statute has since been repealed. L. 1998, c. 72, § 8, eff. Dec. 1, 1998.
We concluded that a defendant had no right to be present at a hearing on a motion filed by the DOC, but his attorney should be permitted to present argument. Id. at 345. We said that
a motion for modification of a sentence to the ADTC falls within the purview of R. 3:21-10(b)(4). That provision allows the Law Division to change a sentence at any time when "authorized by the Code of Criminal Justice," notwithstanding the otherwise unenlargeable [seventy-five] day limitation provided by R. 3:21-10(a). While it is true that the Supreme Court originally adopted R. 3:21-10(b)(4) in order to implement the resentencing provisions of N.J.S.A. 2C:1-1[(]d[)](2), it has since been applied in conjunction with other sections of the Code authorizing modification of sentence. By its very terms, the rule is applicable here.
[Id. at 345 (internal citations omitted).]
This seemingly more expansive view of subsection (b)(4) of the Rule is dicta, given the actual issues presented. More importantly, "[w]hen interpreting court rules, we ordinarily apply canons of statutory construction." Wiese v. Dedhia, 188 N.J. 587, 592 (2006) (citations omitted). In general, we attempt to give meaning to all the words used, so as to avoid a construction that renders any part of the Rule inoperative or meaningless. In re Commitment of J.M.B., 197 N.J. 563, 573 (2009); DKM Residential Props. Corp. v. Twp. of Montgomery, 182 N.J. 296, 307 (2005) (citing Franklin Tower One LLC v. N.M., 157 N.J. 602, 613 (1999)). Construing subsection (b)(4) to permit, as happened in this case, a defendant to move for a reduction or change of sentence "at any time" as long as the proposed sentence is "authorized by the Code," essentially renders subsection (a) of the Rule, which imposes specific and inflexible deadlines upon such a request, nugatory.
Defendant argues that our decision in State v. Alvarez, 246 N.J. Super. 137 (App. Div. 1991), permits a defendant to make a motion for change or reduction of sentence under the Graves Act escape valve after the time constraints in subsection (a) of the Rule. Although we discuss Alvarez more fully below, it suffices to say at this point that in Alvarez, the issue presented was whether the escape valve, enacted one month prior to the defendant's sentence, was constitutional. Id. at 139-40. Defendant filed his motion pursuant to N.J.S.A. 2C:43-6.3, which permitted a defendant already serving a Graves Act mandatory minimum sentence to seek review and obtain the relief now permitted by the escape valve if the prosecutor consented. Id. at 140. We specifically noted that "[a]s defendant was sentenced after the effective date of N.J.S.A. 2C:43-6.2, he should have requested that the sentencing judge refer the matter to the Assignment Judge at the time of sentencing." Ibid. (emphasis added). Nonetheless, we considered the issue "[b]ecause th[e] case was briefed and argued" under the escape valve provisions, which were parallel to N.J.S.A. 2C:43-6.3, and we "decide[d] the case as presented to us as if a timely request for [relief] was made under [the escape valve]." Id. at 140-141. Appropriately construed, Alvarez does not authorize review of a Graves Act minimum sentence "at any time," and any relaxation of time constraints in that case were based upon the idiosyncratic facts and procedural circumstances presented.
We also note that the panel in Alvarez seemingly based review of the prosecutorial decision to seek a waiver upon subsection (b)(3) of the Rule, which permits the prosecutor and defendant to jointly apply for a reduction or change of sentence. Alvarez, supra, 246 N.J. Super. at 148. We acknowledge that a motion brought under (b)(3) can be brought at any time, but we disagree with the panel's rationale in using this subsection of the Rule to permit review of the defendant's constitutional challenge. In other words, we cannot agree that a defendant may bring a motion for a change or reduction of a Graves Act sentence years after the sentence is imposed, as occurred in this case, by arguing that the prosecutor's decision made at that time was "arbitrary, capricious, or unduly discriminatory." State v. Mastapeter, 290 N.J. Super. 56, 65 (App. Div.), certif. denied, 146 N.J. 569 (1996). As noted in Alvarez, a defendant should make such motion before the sentencing judge. Alvarez, supra, 246 N.J. Super. at 140.
Nor does our decision in State v. Mello, 297 N.J. Super. 452 (App. Div. 1997), cited by the motion judge and defendant's brief, support the proposition that a motion seeking to change a sentence under the Graves Act "escape valve" can be made at any time. In that case, although we affirmed the defendant's conviction, we remanded the case so that defendant could "seek the prosecutor's consent and move for leniency under" the escape valve and our holding in Alvarez. Id. at 468. That result reflected only our inherent ability to address, in the context of the defendant's direct appeal, the sentence imposed. We have no doubt that we could reach the same result here, and, as we discuss below, we remand this matter for further proceedings that will hopefully address any injustice that may have occurred at sentencing in this case. But the point is that Mello provides no support at all for the proposition that, pursuant to the Rule, a defendant can seek modification or change of his Graves Act sentence "at any time[.]"
Because the motion judge had no authority to entertain defendant's untimely second motion for a reduction or change of his sentence, we reverse the order under review, vacate the amended judgment of conviction and reinstate the original judgment of conviction and sentence imposed. However, for reasons explained below, we stay any further execution of the custodial aspect of defendant's sentence pending further proceedings in the Law Division.
IV.
The State and defendant have both addressed on appeal the merits of the motion judge's decision. Because we conclude the judge had no authority to hear defendant's motion, we address the arguments in a limited way only to provide context for our reasoning that a remand is required.
In Alvarez, supra, we concluded that the Graves Act escape valve "was constitutional because the Assignment Judge has the ultimate authority to decide whether the prosecutor arbitrarily or unconstitutionally discriminated against a defendant in determining whether the 'interests of justice' warrant reference to the Assignment Judge." Alvarez, supra, 246 N.J. Super. at 147; see also Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:43-6.2 (2014) ("[A] prosecutor's decision not to pursue or endorse an application . . . will not be disturbed on appeal unless arbitrary, capricious, or unduly discriminatory.").
However, Alvarez dealt with an application made after sentencing, and it did "not establish when and how the prosecutor's refusal to make application to the assignment judge, or to consent to such reference by the sentencing judge, should be challenged." Mastapeter, supra, 290 N.J. Super. at 64. In Mastapeter, we specifically chose not to "examine that procedure[,]" particularly since the defendant, like this defendant, had never made an application to the assignment judge before or after sentencing. Ibid. We need not resolve the issue here, except to say that as Judge Stern noted in Alvarez, when the prosecutor refuses to consent or affirmatively seek a waiver, a defendant's request for relief under the Graves Act escape valve should be made at the time of sentencing. Alvarez, supra, 246 N.J. Super. at 140.
In this case, defense counsel made no such request. When the first motion for reduction was made, the trial judge specifically noted that defendant failed to seek relief under the escape valve. During colloquy with the motion judge when the second motion was argued, defense counsel stated that she sought the prosecutor's approval, but it was refused. Tellingly, however, counsel frankly acknowledged she was unaware of any ability to raise the issue before the assignment judge (or his designee) and to challenge whether the prosecutor's refusal to seek a waiver was "arbitrary, capricious, or unduly discriminatory." Mastapeter, supra, 290 N.J. Super. at 65.
The appellate record contains the "Attorney General Directive to Ensure Uniform Enforcement of the "Graves Act" (Corrected Version as of 11/25/08)," which specifically provides:
Had it not been supplied to us in the appendices, we could have taken judicial notice of the Directive under N.J.R.E. 201.
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To ensure statewide uniformity in the enforcement of the Graves Act, and to provide reasonable incentives for guilty defendants to accept responsibility by pleading guilty in a timely manner so as to maximize deterrence by ensuring the swift imposition of punishment, this Directive instructs prosecutors to tender an initial standardized plea offer pursuant to N.J.S.A. 2C:43-6.2 that will in typical cases result in the defendant serving a State Prison term of one year without possibility of parole. Subsequent plea offers must require the defendant to serve three years of parole ineligibility unless the prosecutor determines that the applicable mitigating factors substantially outweigh the aggravating circumstances. Prosecutors are authorized to permit a defendant to enter pretrial intervention only in rare cases involving extraordinary and compelling circumstances. Prosecutors are authorized to permit a probationary sentence upon conviction of a Graves Act crime only where the circumstances of the case fall outsideBecause the motion judge actually considered the merits of defendant's second application, we have the benefit of the State's reasons for not seeking a waiver. Without deciding the issue, we do share the motion judge's perception that there are substantial grounds in the record, given defendant's background and the facts of this case, that support his request for relief under the Graves Act escape valve. Whether defendant is entitled to relief, and, if so, what specific form of relief must rest upon general principles that govern claims of ineffective assistance of counsel.
the heartland of the legislative policy to deter unlawful gun possession.
[(emphasis added).]
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, a defendant must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Ibid. (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58. Trial counsel's failure to advance arguments at sentencing may present grounds for relief, see, e.g., State v. Hess, 207 N.J. 123, 154 (2011), as may trial counsel's ignorance of the law, see, e.g., State v. Thomsen, 316 N.J. Super. 207, 215-16 (App. Div. 1998).
Based upon the record that exists, and in light of his trial counsel's candid acknowledgment of her ignorance regarding the proper means for obtaining relief under the Graves Act escape valve, defendant has already established a prima facie case of ineffective assistance of counsel. We seek to avoid what might otherwise be a fundamentally flawed and unfair result. We therefore remand the matter to the Law Division to hold an evidentiary hearing on whether trial counsel's deficient performance caused defendant "actual prejudice" within the meaning of Strickland, and, if so, what remedy is appropriate. The remand shall be held before the assignment judge, see N.J.S.A. 2C:43-6.2, or his designee, but, for reasons that are obvious, not before either the trial judge or the motion judge.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION