STATE OF NEW JERSEY v. TIMOTHY MURPHY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3489-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIMOTHY MURPHY,

Defendant-Appellant.

_________________________________

October 24, 2012

Submitted October 9, 2012 - Decided

Before Judges Sabatino and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 95-09-1004.

Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel an on the brief).

PER CURIAM

Defendant Timothy Murphy appeals from the trial court's July 30, 2010 order denying his motion to change his sentence under Rule 3:21-10(b)(1) and to be admitted to a drug treatment program in lieu of his ongoing incarceration. Apart from substantively challenging the merits of the trial court's decision, defendant procedurally contests the court's denial of his request to present an allocution in support of his motion. For the reasons stated in this opinion, we affirm.

I.

After a jury trial, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1 (count one); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count two); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count three); and a lesser-included disorderly persons offense on count four. The jury also found defendant guilty of the fourth-degree offense of certain persons not to have weapons, N.J.S.A. 2C:39-7, for which he had been separately indicted.

At sentencing in September 1997, the trial judge granted the State's motion for a discretionary extended term pursuant to N.J.S.A. 2C:43-7, and also merged count three with count one. Defendant personally addressed the court at sentencing and he apologized to the victim and her family. Applying the pertinent aggravating factors and finding no pertinent mitigating factors, the judge imposed a fifty-year custodial sentence on count one, with a twenty-year period of parole ineligibility. The judge also imposed eighteen-month prison terms, each with a seven-month parole ineligibility period, on counts two and four made to run concurrent with each other and with the sentence on count one.

We affirmed defendant's convictions and sentence on direct appeal. State v. Murphy, No. A-2573-98 (App. Div. January 20, 2000). The Supreme Court denied his petition for certification. State v. Murphy, 164 N.J. 560 (2000).1

Twelve years following his sentencing, defendant filed a motion in 2009, pursuant to Rule 3:21-10(b)(1), seeking a change of his sentence and a transfer to a drug treatment facility. The motion judge2 considered defendant's written submissions. These included a brief filed by his attorney, documents identifying programs that defendant had completed in prison, and proposed external treatment programs that had placed him on a waiting list. The judge also considered the oral arguments of defendant's attorney and the State's opposing contentions. The judge declined, however, defendant's request, tendered through his counsel, to address the court personally.

Upon considering the relevant factors for a transfer of a defendant to a drug treatment program under Rule 3:21-10(b)(1) and State v. McKinney, 140 N.J. Super. 160 (App. Div. 1976), the motion judge concluded that defendant had not sustained his burden to justify such a change in his sentence. Among other things, the judge found that at least two other treatment programs remain available to defendant in prison and that there is no current evidence that defendant has a present addiction. The judge also found that defendant's extensive criminal record, which included numerous violent offenses, did not warrant admission into an alternative drug treatment program in lieu of continued incarceration. The judge further noted that there continues to be a need to keep defendant incarcerated, where he does not pose a danger to the community. In addition, the judge concluded that defendant had failed to establish a reasonable probability of successfully completing a drug treatment program, given that he had been previously discharged from such a program prior to his conviction after testing positive for cocaine on at least four occasions.

II.

Defendant now appeals, procedurally contending that he was improperly denied a right of allocution with respect to his motion to change the terms of his sentence under Rule 3:21-10(b)(1), and substantively contending that the court erred in denying his application on the merits.3 We address these arguments in turn.

A.

The operative court rule under which defendant seeks relief, Rule 3:21-10(b), contains no right of allocution. The rule simply states as follows:

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.

[R. 3:21-10(b) (emphasis added).]

Defendant maintains that, despite the absence of explicit language in that rule, he is implicitly entitled to an opportunity to present an allocution in such a proceeding as a logical outgrowth of Rule 3:21-4(b), the general provision providing for allocution during sentencing proceedings. Rule 3:21-4(b) provides in this regard that:

Before imposing sentence the court shall address the defendant personally and ask the defendant if he or she wishes to make a statement in his or her own behalf and to present any information in mitigation of punishment.

[R. 3:21-4(b) (emphasis added).]

This particular provision has been construed to confer upon defendants the right to allocution at a resentencing proceeding, at least in a context where this court has remanded a case for reconsideration of the sentence "anew" and "without directing the imposition of a specific sentence." See State v. Tavares, 286 N.J. Super. 610, 616 (App. Div. 1996).

Defendant likens his motion for a change in his sentence under Rule 3:21-10(b) to such a resentencing proceeding under Rule 3:21-4(b). He argues that it is important that the trial court hear from him first-hand about his progress while in prison and also about his present reasons for seeking a transfer into a drug treatment facility.

Defendant's arguments overlook several important points. First, the history of Rule 3:21-10(b) reflects a systemic concern to discourage routine or frivolous requests for a change in sentence and to avoid overburdening criminal judges who must consider such motions. Previously known as R.R. 3:7-13(b), the prior rule stated:

All changes of sentence shall be made in open court and only after notice has been given to the defendant and the county prosecutor. A new judgment of conviction setting forth the revised sentence and specifying the change made together with the reasons therefor shall be entered and a copy thereof sent to the Administrative Director of the Courts.

By 1975, the rule added three exceptions: (b)(1) through (3), addressing the time requirements for a reduction or change in sentence in subsection (a).4 Also added was subsection (c), which explicitly states:

A motion filed pursuant to paragraph (b) hereof shall be accompanied by supporting affidavits and such other documents and papers as set forth the basis for the relief sought. A hearing need not be conducted on a motion filed under paragraph (b) hereof unless the court, after review of the material submitted with the motion papers, concludes that a hearing is required in the interest of justice.

[R. 3:21-10(c) (emphasis added).]

The Supreme Court's Committee on Criminal Practice explained that this amended provision was "specifically designed to prevent frequent, continuous and frivolous applications for change or reduction of sentence" and that no hearing is required on these motions unless it is "in the interests of justice to do so." 98 N.J.L.J. 321, 344 (Apr. 17, 1975). The Committee also noted that "it is clearly [sic] that the intent of the rule was to provide the defendant with only one opportunity to be heard on a motion to reduce" as otherwise it would "only congest criminal calendars . . . ." 97 N.J.L.J. 777, 784 (Oct. 10, 1974).

If, as defendant argues here, there were an automatic right of allocution in every instance where a defendant files a motion pursuant to Rule 3:21-10(b) to change his sentence, the need to arrange for each such defendant to be transported to court to present an allocution would run counter to the intent that the rule be administered in an efficient manner that is not unduly burdensome. Defendant's claim of entitlement to allocution runs counter to the design and purpose of the rule.

In addition, defendant's claim of a right of allocution ignores the specific qualification within Rule 3:16, which states that "[t]he defendant's presence is not required at a reduction of sentence under R. 3:21-10." That cross-referencing language within Rule 3:16 is instructive. If the court rules were designed to afford a defendant a right of allocution for all motions filed under Rule 3:21-10(b)(1), then such a mandatory appearance for allocution purposes would squarely conflict with the instruction in Rule 3:16 that a defendant's presence is not, in fact, "required" at such proceedings. The rules must be harmonized by concluding that there is, in fact, no "right" to allocution on a motion to change one's sentence.

Moreover, we discern no functional necessity for a defendant to deliver an allocution in support of his motion to change his sentence. Whatever information a defendant has in support of his motion concerning his behavioral progress in prison and about the drug treatment programs that he would like to enter upon release from prison can be conveyed adequately through written submissions, as potentially amplified through oral argument by an attorney acting on his behalf. Unlike certain resentencing proceedings, there is no risk that the court will make defendant's sentence more severe; under Rule 3:21-10(b) the terms of his sentence can only get more lenient or less restrictive. Cf. State v. Towey, 244 N.J. Super. 582, 597 (App. Div. 1990) (wherein a defendant similarly had no expectation that his sentencing exposure would worsen). There is no need in this context to require the trial court to hear from defendant personally, particularly since such motions under Rule 3:21-10(b)(1) are frequently well suited to disposition on the papers. See, e.g., State v. Farrington, 229 N.J. Super. 184, 186 (App. Div. 1988).

In sum, we reject defendant's claim of entitlement to be heard personally on a motion filed pursuant to Rule 3:21-10(b)(1). Consequently, we affirm the trial court's procedural decision to deny his request for allocution.5

B.

We briefly turn to the merits of defendant's motion to change his sentence. As we have noted, the disposition of such motions is generally guided by the various considerations, suggested in McKinney, supra, 140 N.J. Super. at 163-64, including whether the drug treatment he seeks outside of prison can be obtained within the prison; whether he has a bona fide motivation to participate in a drug treatment program and would likely benefit from such a program, and whether "there is a reasonable probability that [he] will successfully complete the program, will assume his proper and rightful place in society without violation of the law, and that his release is not incompatible with the welfare of society." Ibid. Bearing in mind these considerations, the motion judge had ample reason to reject defendant's application, particularly given the availability of other programs in defendant's facility, his extensive prior criminal record and his prior relapses during an earlier treatment program. See State v. Bienick, 200 N.J. 601, 612 (2010) (reiterating the great deference that appellate courts must give to discretionary sentencing decisions by trial courts).

Affirmed.

1 Defendant has also been denied post-conviction relief, which is the subject of a separate appellate decision (A-1678-10) being issued at the same time as the present opinion.

2 The motion judge was not the judge who had sentenced defendant in 1997.

3 Defendant's substantive contentions were orally presented at an Excessive Sentencing Oral Argument ("ESOA") session on August 2, 2011, at which time the panel directed that defendant's procedural contentions concerning the denial of allocution should be briefed and placed on a future plenary calendar. This panel has reviewed the transcript of the ESOA session and duly considered the substantive arguments advanced by defense counsel at that proceeding.

4 Subsection (a) of Rule 3:21-4 states:

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 75 days from the date of the judgment of conviction and not thereafter.

5 We need not address the State's assertion that it would not oppose an opportunity for allocution at a later phase if the trial judge had been convinced that defendant had made a prima facie showing that his sentence should be changed.