STATE OF NEW JERSEY v. KEITH SHEPPARD

Annotate this Case
NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION

                                         SUPERIOR COURT OF NEW JERSEY
                                         APPELLATE DIVISION
                                         DOCKET NO. A-0695-08T4



STATE OF NEW JERSEY,

     Plaintiff-Respondent,

v.

KEITH SHEPPARD,

     Defendant-Appellant.

_______________________________________

              Submitted May 10, 2010 ­ Decided     May 26, 2010

              Before Judges Yannotti and Chambers.

              On appeal from the Superior Court of New
              Jersey,   Law    Division, Union  County,
              Indictment No. 97-06-0696.

              Keith Sheppard, appellant pro se.

              Theodore J. Romankow, Union County Prosecutor,
              attorney for respondent (Brent A. Bramnick,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM

     Defendant Keith Sheppard appeals from an order entered by

the Law Division on August 26, 2008, denying his motion for a

change   or    reduction   in   his   sentence.   For   the   reasons   that

follow, we modify the order and affirm.

    The     following        facts       are       pertinent        to       our    decision.

Defendant was charged under Indictment No. 97-06-696 with third

                                                                                   2C:39-5(b)
degree    unlawful       possession      of    a    handgun,       N.J.S.A.

(count    one);    second     degree      possession          of    a     firearm      for   an

unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); fourth degree

aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count three); and

                                                      2C:15-2      (count         four).     On
first    degree    carjacking,        N.J.S.A.

October    19,     1999,     defendant         pled     guilty          to    first     degree

carjacking, as charged in count four of the indictment. The

State agreed to recommend that the court sentence defendant to a

twenty-four       year    term   of    incarceration,              with      an    eight-year

period of parole ineligibility.

    After        defendant       failed        to     appear       for       his      original

sentencing date, the court issued a warrant for his arrest.

Defendant was thereafter arrested and extradited to New Jersey.

On March 21, 2003, the court sentenced defendant, in accordance

with State v. Subin, 
222 N.J. Super. 227, 238-240 (App. Div.),

certif. denied, 
111 N.J. 580 (1988), to twenty-five years of

incarceration, with a ten-year period of parole ineligibility.

Thereafter,       defendant      filed    a        petition    for       post      conviction

relief (PCR), which the court denied by order entered on May 1,

2006. Defendant appealed from the May 1, 2006 order, and we




                                                                                      A-0695-08T4
                                              2

affirmed the denial of PCR. State v. Sheppard, No. A-5092-05

(App. Div. April 5, 2007).

       Thereafter, defendant filed a motion in the trial court

seeking a reduction of his sentence. On May 30, 2008, the court

conducted an evidentiary hearing on defendant's claim that a

reduction        in     the     sentence       was        warranted   because       he     had

cooperated        with    federal       agents       in    an    investigation.     At     the

hearing, which was closed to the public, defendant testified

that he provided certain information to agents in the Federal

Bureau      of    Investigation         (FBI),       but    he    acknowledged      that    no

arrests or prosecutions had resulted from the information he had

provided.

       Assistant        Prosecutor      James      Donnelly       (Donnelly)     testified

that   he    had       spoken   with    an   FBI      agent      regarding    the   matter.

Donnelly stated that he was informed there was no written or

verbal      agreement         between    the       FBI     and    defendant    concerning

cooperation or credits. Donnelly also said that the FBI had

never arrested or prosecuted anyone based on the information

defendant        had    provided.      Donnelly       conceded      that   defendant       had

made "legitimate efforts" to provide the FBI with information

but the State could not support defendant's application for a

reduction of his sentence because defendant's cooperation with

law enforcement was not fruitful in any way.




                                                                                    A-0695-08T4
                                               3

       The court placed its decision on the record. The court

found that there was no agreement between defendant and the

State       concerning    his      cooperation.          However,     there        was     a

"collateral       agreement"     between        the    FBI   and   defendant       but    no

"specific      promise"    had    been   made         with   regard   to   defendant's

cooperation. The court found that, although defendant had been

willing to cooperate with the FBI in its investigation, he did

not provide the FBI with information that had substantial value

or results. The court nevertheless determined that defendant was

entitled to some credit for his cooperation with law enforcement

and     reduced    the    period    of     parole        ineligibility      previously

imposed from ten years to nine years.

       The     court   considered     defendant's            disparity     claim    at     a

hearing held on August 26, 2008.                      Defendant argued that there

was    an    impermissible      disparity       between      his   sentence    and       the

sentence imposed upon the defendant in State v. Williams, 
289 N.J. Super. 611 (App. Div.) certif. denied, 
145 N.J. 375 (1996).

The court concluded that defendant's comparison of his sentence

with    that    imposed   in     Williams       was    inappropriate       because       the

defendant in Williams was not a co-defendant in this case, the

matter involved a separate offense, which had been committed in

a different jurisdiction and involved a defendant who had a

different criminal history.




                                                                               A-0695-08T4
                                            4

       The court entered an order dated August 26, 2008, denying

defendant's motion for a change or reduction of his sentence.

The order did not reflect that the court had reduced the period

of parole ineligibility previously imposed.                      It also is unclear

from    the   record       whether     the    court      ever   entered    an    amended

judgment of conviction, reflecting its determination.

       Defendant appeals and raises the following issues for our

consideration:

              POINT I
              APPELLANT'S SENTENCE SHOULD BE REDUCED BASED
              ON THE EXISTENCE OF A SENTENCE DISPARITY.

              POINT II
              APPELLANT INSISTS HIS SENTENCE WOULD HAVE
              BEEN REDUCED SIGNIFICANTLY HAD THE FEDERAL
              AGENTS ADHERED TO THE SUBPOENA.

We     have   carefully          reviewed     the    record     and    conclude       that

defendant's arguments are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2). We add the

following comments.

       Defendant argues that his sentence should have been reduced

because of a sentencing disparity. It is well established that

"[d]isparity        may        invalidate    an     otherwise    sound     and    lawful

sentence." State v. Roach, 
146 N.J. 208, 232, cert. denied, 
519 U.S. 1021,      
117 S. Ct. 540,    
136 L. Ed. 2d 424   (1996).     "'A

sentence      of    one        defendant     not    otherwise    excessive       is    not

erroneous merely because a co-defendant's sentence is lighter.'"


                                                                                 A-0695-08T4
                                              5

Ibid. (quoting State v. Hicks, 
54 N.J. 390, 391 (1969)). Even

though a "sentence imposed on [a] defendant falls within the

statutory limits mandated for the offense, 'there is an obvious

sense of unfairness in having disparate punishments for equally

culpable perpetrators.'" Ibid. (quoting State v. Hubbard, 
176 N.J. Super. 174, 175 (Resentencing Panel 1980)).

       Here, defendant based his disparity claim upon a comparison

of     his   sentence        with     that        imposed     upon     the    defendant          in

Williams, where the defendant also was convicted of first degree

carjacking but was sentenced to ten years of incarceration, with

a five-year period of parole ineligibility. Williams, supra, 
289 N.J. Super. at 613.             The trial court correctly found, however,

that    defendant's        disparity         claim      failed       because       he     is   not

similarly         situated     to     the        defendant     in    Williams,           who   was

convicted in a different case, in a different county, and who

had a different criminal history.

       Defendant        additionally         argues         that    the     court    erred      by

failing      to    substantially       reduce         his    sentence       because       of   his

cooperation         with     federal        law       enforcement         officers        in    an

investigation.          As we noted previously, the trial court found

that     defendant       should       be     given     some        credit    for     providing

information        to    the    FBI        and     reduced     the     period       of     parole

ineligibility previously imposed from ten to nine years. The




                                                                                         A-0695-08T4
                                                  6

court found, however, that a further reduction in the sentence

was not warranted.

       The trial court correctly determined that, to justify a

further reduction in his sentence, defendant had to establish

that     his     cooperation         was        of        substantial          value    to    law

enforcement. See State v. Gerns, 
145 N.J. 216, 227-28 (1996)

(holding that defendant's cooperation must provide substantial

benefit to the State in order to justify waiver in whole or in

part     of    mandatory          parole     ineligibility               for    certain      drug

offenses).     Although       defendant         testified          that    he    provide     some

information       to   the        FBI,     he       did     not    establish       that      this

information led to the arrest or prosecution of any person.                                   The

record    thus     supports         the     court's         finding       that     defendant's

cooperation did not have substantial value or results.

       Defendant asserts, however, that he was unable to establish

substantial       value      of    his     cooperation            with    the     federal     law

enforcement officers because an FBI agent failed to appear at

the hearing of May 30, 2008, to testify concerning the matter.

It appears that a subpoena had been issued to the FBI prior to

the    hearing.        The    court        noted      on     the    record       that   it    had

previously adjourned the hearing twice because the FBI agent was

not available. The court refused to adjourn the matter again,

noting that it had provided enough time for someone from the FBI




                                                                                        A-0695-08T4
                                                7

"to   get    in     here     and       submit       something"         for        the    court's

consideration.

      We    are    satisfied        that      the       court     did    not        abuse      its

discretion by refusing a further delay in the proceedings.                                      We

note additionally that the State established, through Donnelly's

testimony, that there was no agreement between the State and

defendant     concerning         his      cooperation          with     the       FBI    in    its

investigation.       Moreover,         Donnelly      stated       that       no    arrests      or

prosecutions       had    been     made     on    the    basis     of    the       information

defendant     had        provided      to     the       FBI.     Donnelly's             testimony

established       that    defendant       had     cooperated          with    the       FBI   and,

because of that cooperation, he received a one-year reduction in

his sentence.        In addition, defendant did not testify that FBI

had made any promises to him regarding the sentence at issue in

this case.

      The   court's       order     of      August      26,     2008,    is       modified      to

reflect that the court granted defendant a reduction in the

period of parole ineligibility previously imposed from ten to

nine years. We remand the matter to the trial court for entry of

an amended judgment of conviction, reflecting the reduction in

the parole ineligibility period, in the event that an amended

judgment has not previously been entered.




                                                                                         A-0695-08T4
                                              8

      The order of August 26, 2008, is affirmed as modified, and

the   matter   is   remanded   to   the   trial   court   for   entry     of   an

amended judgment of conviction.




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                                      9



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