STATE OF NEW JERSEY v. ANTHONY SAXON

 
(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1964-08T41964-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY SAXON,

Defendant-Appellant.

 
 

Submitted February 24, 2010 - Decided

Before Judges Sabatino and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 08-02-0399 and 08-04-0923.

Yvonne Smith Segars, Public Defender, attorney for appellant (Diane Toscano, Assistant Deputy Public Defender, of counsel and on the brief).

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, forty-four years of age at the time, was separately indicted for two episodes of drug-related criminal behavior that occurred within a week of each other in the waning days of 2007 and into the first week of 2008. At the time, defendant had been suffering from decades-long ill health and enduring substance abuse. This was confirmed by an Adult Presentence Report, which indicated that as of June 2008, defendant had been convicted of more than fifteen crimes (mostly drug-related), had been incarcerated for several years, and had been diagnosed with multiple illnesses.

Defendant voluntarily entered into a plea agreement covering both indictments, which ultimately resulted in his conviction for third-degree possession of heroin with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7; second-degree possession of heroin with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1; and third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1). In exchange for the entry of the plea, the State agreed to recommend a maximum aggregate sentence of five years incarceration with two and one-half years of parole ineligibility, which was imposed by the sentencing judge.

Defendant now appeals primarily because he was denied admission to and the opportunity to benefit from drug court treatment, which he claims would have resulted in an alternative sentence consisting of rehabilitation instead of incapacitation. We affirm the proceedings of the Law Division because we cannot detect either an abuse of discretion or harmful error in the disposition of defendant's several indictments.

I.

Defendant entered into the plea agreement on May 8, 2008. At that time, defendant's plea form indicated that he reserved the right to file a later motion pursuant to N.J.S.A. 2C:35-14 as a drug or alcohol dependent person seeking an alternate sanction of special probation instead of ordinary incarceration. The reservation recognized that the State neither consented nor objected to the filing of the motion, but left its disposition to the court. Sentencing was scheduled for six weeks hence, on June 20, 2008.

To facilitate the motion, the plea form expressly noted that defendant was to undergo an evaluation, to be performed by the Atlantic/Cape May County Treatment and Assessment Services for the Courts (TASC). Following the plea allocution, the Law Division judge ordered that as part of the pre-sentence process, a TASC evaluation be performed. After its completion on June 5, 2008, the evaluation indicated that defendant suffered from long-term substance dependency and that "he would benefit from addiction and mental health residential long-term drug treatment." Accordingly, the TASC evaluator recommended a "Level III.5-Medically monitored intensive inpatient treatment." Defendant was referred to the John Brooks Recovery Center as the locale for this program, and the TASC report indicates "[t]reatment program has requested his medical records from the jail before determination can be made for admission."

As foretold by the plea agreement, defendant filed a motion entitled, "Notice of Motion to Sentence Defendant to a Long Term Rehabilitation Facility Pursuant to N.J.S.A. 2C:35-14." The motion was returnable on June 20, 2008, the same day as defendant's sentencing. The motion was supported with a certification by defendant's attorney that outlined the chronology of the case, including the recommendation of the TASC evaluation, and contained the attorney's opinions about defendant's suitability to a sentence other than ordinary incarceration. The certification also claimed to contain "a copy of the acceptance correspondence" from a "suitable treatment facility," but that was inaccurate; no such correspondence was attached. Defendant did not provide his own certification in support of the motion.

On the date of sentencing, defense counsel advised the sentencing judge, "I had filed a [N.J.S.A. 2C:]35-14 motion back on June 13[, 2008]. That motion did not actually contain confirmation that he was actually accepted to a program." Instead, defense counsel informed the court that at "4:45 [p.m.] last night" an acceptance from "the Salvation Army" was received. The court immediately noted that the "Salvation Army is not a licensed rehab facility, [so it] would not comply with [N.J.S.A. 2C:]35-14." Defense counsel then responded, "So I'm basically asking for a one-week postponement to see if we can get him into another facility. He's waiting for John Brooks, is where he's advised me as well."

The sentencing judge declined defense counsel's request to adjourn the sentencing, but offered the following alternative:

Well, I'll tell you what: if he got that, he can make a motion for a change of custodial sentence. Because, you know, needless to say, [we're] appropriate[ly] open to treatment. I just can't keep postponing [matters].

The court then addressed defendant directly and said:

Mr. Saxon, so you understand what's going on - I know [defense counsel] has spoken to you - is that I will certainly consider and listen to what you have to say, listen to your - what your attorney has to say if there's an acceptable inpatient rehabilitation facility available for you.

Finally, after listening to defendant explain that his family was in contact with the John Brooks Recovery Center and they were allegedly promised a treatment slot for defendant, the judge noted:

Well, if there is, John Brooks Recovery Center is, in fact, a licensed facility and is an acceptable treatment program. So if that becomes available, what I've just said and maybe you didn't understand is that I'll consider a motion to allow you to go there if that becomes - if that bed becomes available.

Thereupon, defendant was sentenced in accordance with the plea arrangement to a five-year prison term with two and one-half years of parole ineligibility. Just as the sentencing proceeding was about the conclude, the following interchange occurred:

[DEFENSE COUNSEL]: Thank you, Judge. And for the record, I will attempt to get him into John Brooks and make an appropriate motion.

THE COURT: If he's got a bed at a licensed facility, make a motion.

[DEFENSE COUNSEL]: Thank you very much, Judge.

To this date, that motion has never been filed with the Law Division, for reasons that are not explained in the record. Instead, this appeal ensued.

II.

On appeal, defendant has presented the following arguments:

POINT I: THE COURT'S DENIAL OF DEFENDANT'S MOTION SHOULD BE REVERSED, AND DEFENDANT SHOULD BE SENTENCED TO DRUG COURT.

POINT II: THE COURT'S STATEMENT OF REASONS WAS INADEQUATE PER SE AND DID NOT SUPPORT A MAXIMUM TERM FOR THE SCHOOL ZONE OFFENSE.

From our review of the record, we are satisfied that not only were the proceedings in the Law Division unremarkable, they were unexceptionable. We determine that defendant's arguments are without sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). We nevertheless add the following brief remarks.

Defendant's argument about a drug treatment alternative to the sentence of incarceration he received is couched in terms of the sentencing judge's alleged abuse of discretion in either not adjourning the sentencing or not permitting defendant to "be sentenced to Drug Court." Drug Court admission is governed by the Drug Court Manual (Manual). See Administrative Office of the Courts, Directive # 2-02 (July 22, 2002). The Manual outlines two separate paths for possible admission into Drug Court. State v. Meyer, 192 N.J. 421, 431 (2007) Offenders must either satisfy the eligibility requirements for special probation set forth in N.J.S.A. 2C:35-14, or "otherwise be eligible under other sections of the Code of Criminal Justice." Manual, supra, at 10.

Defendant concedes that he is not eligible for the first path related to special probation because he was "previously convicted on two or more separate occasions of crimes of the first, second or third degree, other than crimes defined in [N.J.S.A.] 2C:35-10." N.J.S.A. 2C:35-14(a)(6). However, he claims entitlement to an alternate route, by which the Manual permits him to obtain drug court benefits, even if he were prison-bound, by complying with the following:

a. the person has a drug or alcohol dependence, as determined by a diagnostic assessment and substance abuse treatment and monitoring is likely to benefit the person; and

b. the person has not been previously convicted or adjudicated delinquent for, and does not have a pending charge of murder, aggravated manslaughter, manslaughter, robbery, kidnapping, aggravated assault, aggravated sexual assault or sexual assault, or a similar crime under the laws of any other state or the United States; and

c. the person did not possess a firearm at the time of the present offense and has no history of possession of a firearm during an offense; and

d. no danger to the community is likely to result from the person being placed on probation.

[Manual, supra, at 16-17.]

We disagree, because defendant entered a plea of guilty to the second-degree crime of possession of heroin with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1, and the Manual states that in this second track "[a] person is not eligible for admission to drug court if the person is charged with a first or second degree crime." Id. at 17. See State v. Meyer, supra, 192 N.J. at 432 ("Although first-degree offenders are ineligible for Drug Court under either track one or two, under the second track, even second-degree offenders are disqualified."). Additionally, the prosecutor did not consent to defendant's application for drug court treatment. See State v. N.I., 349 N.J. Super. 299, 319-20 (App. Div. 2002).

Equally as important, defendant did not demonstrate that as of the date of sentencing there was an appropriate treatment facility available to him, with treatment services that were licensed by the Department of Health and Senior Services, Division of Addiction Services. His one-week adjournment request did not give the sentencing judge any meaningful expectation that defendant would, in fact, soon succeed in obtaining a promise of a bed at the John Brooks Recovery Center within those seven days. See State v. Ruffin, 371 N.J. Super. 371, 388 (App. Div. 2004) (observing that a court "has the power to tightly control its calendar to assure the efficient administration of the criminal justice system"). Also, the fact that defendant still has not taken the sentencing judge's suggestion and file a post-sentencing motion for a change in custody, confirms that an adjournment would have been an exercise in futility. We discern no abuse of discretion either in the sentencing judge's management of his court calendar or in his handling of this case in particular. A patent or gross abuse of discretion requires a decision so wide of the mark that fundamental fairness and justice requires judicial intervention. State v. Wallace, 146 N.J. 576, 582-83 (1996). Those attributes are absent from this record.

Defendant also claims that the sentencing court abused its discretion by imposing a five-year sentence, instead of some lesser term. Defendant concedes that the period of parole ineligibility was required by law and dictated by precedent. We find that Judge Michael R. Connor's identification, and subsequent balancing of aggravating factors three, six, and nine, against no mitigating factors, faithfully applied our State's sentencing policies and did not transgress the principles of State v. Roth, 95 N.J. 334 (1984) or its progeny. The judge's written amplification of his sentencing calculus that is found in the judgment of conviction was more than adequate to explain his thought process.

We note that our Supreme Court has recently equipped sentencing judges with greater protection from appellate second-guessing, State v. Bieniek, 200 N.J. 601 (2010), by reminding our court to avoid substituting appellate preferences for legally compliant sentencing actions by the Law Division:

Because the sentencing court adhered to the sentencing principles set forth in the Code and defined in our case law, its discretion should be immune from second-guessing. We grant to it the deference to which it is entitled under our traditional principles of

appellate review of a criminal sentence.

[Id. at 612.]

Accordingly, we are unable to agree with defendant that reversible error infected the sentencing process under review.

 
Affirmed.

Actually, defendant initially appealed only his sentence pursuant to a Rule 2:10-3 excessive sentence review. On the date scheduled for oral argument in that proceeding, defendant requested permission to transfer the matter to "the plenary calendar so that [appellate counsel] can appeal the denial of the Drug Court motion." The State had no objection, and we now provide that plenary review.

See http://www.judiciary.state.nj.us/drugcourt/dctman.pdf (last accessed on Mar. 1, 2010).

N.J.S.A. 2C:44-1(a)(3); -1(a)(6); and -1(a)(9).

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A-1964-08T4

March 23, 2010