STATE OF NEW JERSEY v. JERMAINE GOINES

NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION

                                           SUPERIOR COURT OF NEW JERSEY
                                           APPELLATE DIVISION
                                           DOCKET NO. A-6450-08T4

STATE OF NEW JERSEY,

     Plaintiff-Respondent,

v.

JERMAINE GOINES,

     Defendant-Appellant.

________________________________

             Submitted March 10, 2010 - Decided March 25, 2010

             Before Judges Stern, Sabatino and Harris.

             On appeal from Superior Court of New Jersey,
             Law Division, Somerset County, Indictment
             No. 05-04-00302.

             Jermaine Goines, appellant pro se.

             Wayne J. Forrest, Somerset County Prosecutor,
             attorney for respondent (James L. McConnell,
             Assistant Prosecutor, on the brief).

PER CURIAM

     Defendant     was    sentenced   to   two   concurrent    terms    of   ten

years   with    eighty-five    percent     to    be   served   before   parole

eligibility under the No Early Release Act (NERA) for two counts

of   armed     robbery.      Other    counts     were   merged   into    these

convictions following a plea to the indictment.

       Defendant        moved     to    change      or   reduce       the    sentence

approximately three years later.                As a result it was time barred

under Rule 3:21-10(a) unless cognizable under the exception to

the    bar   embodied       in   Rule   3:21-10(b).         However,    it   was    not

cognizable because our case law makes it clear that a motion for

change or reduction of sentence cannot be considered before the

statutory minimum parole ineligibility period has been served.

See,   e.g.,      State     v.   Mendel,   
212 N.J.   Super.   110    (App.     Div.

1986); See also State v. Kearns, 
393 N.J. Super. 107, 111 (App.

Div. 2007), State v. Le, 
354 N.J. Super. 91, 95 (Law Div. 2007)

(applying Mendel to a NERA term).                 Compare State v. Farrington,


229 N.J. Super. 184 (App. Div. 1988) (concerning discretionary

ineligibility terms).

       The minimum sentence imposed for first degree robbery is

ten    years,     and   a   mandatory      eighty-five      percent    ineligibility

                                            Hence, even construing Mendel as
term    under NERA was imposed.

relating     to    the      minimum     term     possible    under     the   statute,

including a downgrade, as opposed to service of the minimum term

imposed where there is a statutory requirement for a mandatory

minimum or parole ineligibility term, see State v. Brown, 
384 N.J. Super. 191 (App. Div. 2006), a downgrade was not warranted

in order to achieve success on a transfer to a drug treatment

program, see State v. McKinney, 
140 N.J. Super. 160 (App. Div.




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1976), and the NERA minimum term had not been served when his

application was considered.          As defendant received the minimum

term    possible     within   the   range    for   a   first   degree    crime,

concurrent terms of ten years with NERA, and eight and one-half

years    had   not    passed    before      the    motion   was   filed,      the

application was premature.

       Defendant also argues that he should have been assigned

counsel on his application.          Despite the recent rule change now

allowing the assignment of counsel on a Rule 3:21-10 application

as a matter of discretion for "good cause", the rule did not

authorize it before September 2009, and such an application is

not a "critical stage" of the prosecution.              In any event, there

is no "good cause" warranting same.           See R. 3:21-10(c).

       Affirmed.




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