STATE OF NEW JERSEY v. LAWRENCE PETERSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2380-06T52380-06T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LAWRENCE PETERSON,

Defendant-Appellant.

 
________________________________

Submitted August 29, 2007 - Decided September 12, 2007

Before Judges A.A. Rodr guez and Parrillo.

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, Indictment No. 2094-5-83.

Lawrence Peterson, appellant pro se.

Paula T. Dow, Essex County Prosecutor, attorney for

respondent (Barbara A. Rosenkrans, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Lawrence Peterson appeals from the November 13, 2006 order of the Law Division denying his Rule 3:21-10(b) motion for a change of custodial status in order to be admitted into a drug and alcohol rehabilitation program. We affirm.

By way of background, on September 30, 1983, defendant was convicted, following a jury trial, of first-degree murder, N.J.S.A. 2C:11-3a(1) or (2); third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5d. He was sentenced on November 9, 1983 to a term of thirty years without parole eligibility on the murder conviction and a concurrent five-year term for the possession of the weapon for an unlawful purpose, his conviction of unlawful possession of the knife, N.J.S.A. 2C:39-5d, having been merged into the violation of N.J.S.A. 2C:39-4d.

We affirmed defendant's conviction and the Supreme Court denied his petition for certification. State v. Peterson, 105 N.J. 513 (1986). Subsequently, defendant filed three successive petitions for post-conviction relief (PCR), all of which were denied, the latest denial being affirmed on appeal on August 13, 2002.

On October 18, 2006, defendant filed a motion, pursuant to Rule 3:21-10(b), for a change of custodial status in order to be admitted into a drug and alcohol rehabilitation program. On November 13, 2006, the Law Division denied defendant's application because he had not completed the statutorily mandated thirty-year minimum term. In its letter opinion, the court concluded:

Rule 3:21-10(b) does not allow a court to change a defendant's custodial status until he completes all mandatory portions of his sentence as established by statute. State v. Mendel, 212 N.J. Super. 110, 113 (App. Div. 1986); see also State v. Brown, 384 N.J. Super. 191, 194-95 (App. Div. 2006) ("when a parole ineligibility minimum term is required by statute, a court has no jurisdiction to consider a R. 3:21-10(b) application"). As indicated by your Judgment of Conviction, you were sentenced to a mandatory term of thirty years custody with a thirty year parole ineligibility period under N.J.S.A. 2C:11-3(b)(1). Therefore, this court does not have the authority to alter your sentence until the mandatory portion of your sentence has been served.

On appeal, defendant raises the following issues:

I. THE COURT HAS JURISDICTION TO CONSIDER APPELLANT['S] MOTION UNDER RULE 3:21-10(B) TO A DRUG TREATMENT PROGRAM WHEN A PAROLE INELIGIBILITY IMPOSED AS A MATTER OF JUDICIAL DISCRETION.

II. DENIAL APPELLANT CONSIDERATION INTO A DRUG TREATMENT PROGRAM IS A VIOLATION OF HIS DUE PROCESS RIGHTS.

III. APPELLANT WAS ENTITLED TO HAVE ASSIGNMENT OF COUNSEL TO REVIEW MOTION TO ADVANCE APPELLANT['S] ARGUMENTS.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel and defendant pro se, and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We therefore affirm substantially for the reasons stated by the motion judge in his letter opinion of November 13, 2006. We add only the following comments.

Rule 3:21-10(b) allows a trial court to change a custodial sentence to permit entry of a defendant into a rehabilitation program for drug and alcohol abuse. However, a defendant's custodial sentence cannot be changed until he serves the statutorily mandated period of parole ineligibility. "[W]hen a parole ineligibility minimum term is required by statute, a court has no jurisdiction to consider a R. 3:21-10(b) application." State v. Brown, supra, 384 N.J. Super. at 194. As we stated in State v. Mendel, supra, 212 N.J. Super. at 110, "R. 3:21-10(b) was never intended to permit the change or reduction of a custodial sentence which is required by law." Id. at 113. See also State v. Diggs, 333 N.J. Super. 7, 10 (App. Div.), certif. denied, 165 N.J. 678 (2000) (parole ineligibility term pursuant to N.J.S.A. 2C:35-7); cf. State v. Le, 354 N.J. Super. 91, 96 (Law Div. 2002) (no entitlement to reconsideration of sentence until completion of mandatory term of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2); State v. DeJesus, 252 N.J. Super. 456, 462 (Law Div. 1991) (same as to mandatory term for repeat drug offenders under N.J.S.A. 2C:43-6f).

Here, defendant essentially argues that the imposition of his thirty-year term without parole eligibility was discretionary in nature and thus there was jurisdiction to consider a Rule 3:21-10(b)(1) application prior to the expiration of the parole disqualifier. We disagree. N.J.S.A. 2C:11-3 establishes a discrete sentencing scheme for defendants convicted of purposeful or knowing murder. The statute mandates that a convicted murderer be sentenced to either:

"a term of 30 years, during which the person shall not be eligible for parole; or be sentenced to a specific term of years which shall be between 30 years and life imprisonment of which the person shall serve 30 years before being eligible for parole."

[N.J.S.A. 2C:11-3(b)1.]

Thus, at the time defendant was sentenced, the range of sentence available for a defendant convicted of first-degree murder was thirty years to life imprisonment with a mandatory thirty-year period of parole ineligibility. Under N.J.S.A. 2C:11-3, defendant had to be sentenced to a mandatory parole ineligibility term of thirty years and the imposition of this parole bar did not involve an exercise of discretion. As such, the motion judge properly denied defendant's application for a change of custodial sentence to a rehabilitation program because defendant is still serving his statutorily mandated thirty-year parole ineligibility term on his murder conviction.

Apart from the court's lack of jurisdiction to consider the Rule 3:21-10(b) application, defendant has failed to demonstrate that his need for, or the availability of, a drug and alcohol abuse program has changed since the time of his original sentencing. Before a defendant's sentence can be changed under Rule 3:21-10(b), the defendant must demonstrate that a "change of circumstances" justifies the modification of the sentence. State v. Kent, 212 N.J. Super. 635, 641-42 (App. Div.), certif. denied, 107 N.J. 65 (1986). "[W]here a defendant's need for a drug or alcohol abuse program and the availability of that program are essentially the same when a motion for change of sentence is filed as at the time of original sentencing, the policy of finality of sentences should mandate denial of the motion." Id. at 641. Here, since defendant has not provided the sentencing transcript, we cannot determine whether a "change of circumstances" has indeed occurred.

Lastly, defendant has also failed to identify any constitutionally cognizable liberty interest that entitles him, as a prison inmate, to have his custodial sentence changed in order to enter a drug or alcohol rehabilitation program. See Shabazz v. N.J. Dep't of Corr., 385 N.J. Super. 123-28 (App. Div. 2006) (inmates do not have protected liberty interests in serving their sentences in a particular facility or in a reduced custody status); Merola v. Dep't of Corr., 285 N.J. Super. 501, 514 (App. Div. 1995), certif. denied, 143 N.J. 519 (1996) (no constitutional right to have mandatory minimum sentence reduced by work and commutation credits). Nor is defendant entitled to be represented by counsel on his Rule 3:21-10(b) motion inasmuch as denial of the motion only maintains the status quo. Rodriquez v. Rosenblatt, 58 N.J. 281, 295 (1971).

 
Affirmed.

(continued)

(continued)

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A-2380-06T5

September 12, 2007