STATE OF NEW JERSEY v. STEPHEN J. VITKOW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3290-12T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEPHEN J. VITKOW,

Defendant-Appellant.

______________________________________

May 12, 2014

Submitted March 3, 2014 Decided

Before Judges Yannotti, Ashrafi and Leone.

On appeal from Superior Court of New Jersey,

Law Division, Atlantic County, Indictment

No. 09-03-0614.

Stephen J. Vitkow, appellant, pro se.

James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Julie H. Horowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Stephen Vitkow is serving a sentence of imprisonment for second-degree robbery. He appeals from the Law Division's denial of his motion for a change of his custodial sentence pursuant to Rule 3:21-10(b)(1) so that he can apply for a "Drug Court" sentence of special probation. At the time that defendant was sentenced, he was not eligible for the Drug Court Program. Recent amendments to N.J.S.A. 2C:35-14 changed the eligibility requirements so that conviction on a charge of second-degree robbery no longer disqualifies an applicant for Drug Court. We conclude that the recent amendments do not apply retroactively to defendant's sentence and, therefore, affirm denial of his application for a change of sentence.

Defendant had worked as a food and beverage manager at the Hilton Hotel and Casino in Atlantic City. In December 2008, he stole expensive bottles of cognac from locked storage at the casino and sold them to pay for prescription drugs to which he was addicted. In July 2009, prosecution was deferred on the theft charge while defendant was accepted into the Pretrial Intervention Program (PTI), N.J.S.A. 2C:43-12 to -14 and Rule 3:28. While under PTI supervision, however, defendant was arrested and indicted for two November 2009 robberies of pharmacies to obtain prescription drugs.

On July 29, 2010, defendant pleaded guilty to the original charge of theft of cognac and to robbing one of the two pharmacies. According to the presentence investigation report, on November 21, 2009, defendant entered a pharmacy in Galloway Township with his hand in his pocket and demanded Xanax and Oxycontin. The pharmacist believed defendant had a gun and gave him the drugs. Defendant left the pharmacy. He was later identified and arrested.

An indictment returned in January 2010 charged eight counts, including first-degree armed robbery, possession of controlled substances, and other related charges. Defendant and the prosecutor's office reached a plea agreement by which he pleaded guilty to one count of second-degree unarmed robbery, in violation of N.J.S.A. 2C:15-1. The other seven counts would be dismissed after sentencing, and defendant's term of imprisonment would not be more than seven years, subject to the provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The NERA statute is mandatorily applicable to conviction for second-degree robbery, and it requires that eighty-five percent of the prison sentence be served before eligibility for parole. Prior to defendant's sentencing, several members of the community wrote to the court vouching for his good character before he became addicted to prescription drugs.

On October 1, 2010, the court sentenced defendant on the charge of second-degree robbery to six years in prison, with eighty-five percent to be served before parole eligibility, and three years of special parole supervision after his release from prison, also as mandated by NERA. On the theft charge, the court sentenced defendant to three years in prison to be served concurrently with the sentence on the robbery charge. Money penalties and restitution were also included in the sentence. On appeal, we affirmed the sentence by order pursuant to Rule 2:9-11, and the Supreme Court denied defendant's petition for certification, State v. Vitkow, 211 N.J. 275 (2012).

On July 19, 2012, Governor Christie signed Senate Bill 881, which expanded New Jersey's Drug Court Program. L. 2012, c. 23. The prior version of N.J.S.A. 2C:35-14 had categorically excluded persons convicted of first- or second-degree robbery from the program. The new law created exceptions for certain individuals convicted of second-degree robbery. L. 2012, c. 23, 5(b). The amendment to N.J.S.A. 2C:35-14 took effect six months after its enactment, on January 19, 2013. L. 2012, c. 23, 7.1

On February 7, 2013, Vitkow filed a motion in the Law Division for change of sentence pursuant to Rule 3:21-10(b)(1). He sought to take advantage of the new law and to apply for admission to the Drug Court Program. On February 27, 2013, the Law Division denied the motion summarily, citing State v. Mendel, 212 N.J. Super. 110 (App. Div. 1986), and stating that defendant is not eligible for a change of sentence under the rule "until the statutorily prescribed mandatory term [of imprisonment under NERA] has been served."

Defendant appeals, making the following argument in his pro se briefs:

ALTHOUGH THE APPELLANT IS CURRENTLY SERVING A CUSTODIAL SENTENCE FOR SECOND-DEGREE ROBBERY PURSUANT TO N.E.R.A., BECAUSE THE APPELLANT IS AN ADDICTED PERSON AS DEFINED IN N.J.S.A. 2C:35-2 AND THE INSTANT CRIME WAS COMPLETELY ADDICTION-ORIENTED AND SINCE THE APPELLANT MEETS AND ABOUNDS THE NEWLY ESTABLISHED ELIGIBILITY CRITERIA OF SPECIAL PROBATION PURSUANT TO THE REVISIONS TO N.J.S.A. 2C:35-14, HE MUST, THEREFORE, BE ELIBIBLE TO SEEK RELIEF PURSUANT TO R. 3:21-10(b)(1).

We reject defendant's argument because the Legislature did not indicate that the expansion of eligibility for the Drug Court Program would be applicable to convicted persons who were already serving terms of imprisonment, and it specifically made the 2012 amendments effective six months or more after enactment of the new law. These actions of the Legislature are indicative of an intent to apply the amendments prospectively rather than retroactively.

In general, "prospective application of a statute is favored over retroactive application." State v. Carrigan, 428 N.J. Super. 609, 618 (App. Div. 2012) (quoting Oberhand v. Dir., Div. of Taxation, 193 N.J. 558, 570 (2008)), certif. denied, 213 N.J. 539 (2013). But the general rule is not applicable when the Legislature expresses its intent to apply a statute retroactively. Ibid. An indication of legislative intent might be found within the language of the statute itself, or "implied in order to 'make the statute workable or to give it the most sensible interpretation.'" Ibid. "At all times 'primary regard must be given to [a statute's] fundamental purpose,' and if need be, 'the spirit of the law will control the letter.'" State v. Bey, 112 N.J. 45, 103 (1988) (alteration in original) (quoting N.J. Builders, Owners, and Managers Ass'n v. Blair, 60 N.J. 330, 338 (1972)).

When interpreting a statute, the court "look[s] first to the words chosen by the Legislature because that is the most 'direct path' toward gleaning legislative intent." State v. Rolon, 199 N.J. 575, 582 (2009) (quoting State v. Smith, 197 N.J. 325, 332 (2009)). When the statutory language has "more than one plausible interpretation," the court may look to extrinsic evidence for assistance, such as legislative history. State v. Shelley, 205 N.J. 320, 323-24 (2011) (quoting DiProspero v. Penn, 183 N.J. 477, 492-93 (2005)).

Retroactive application of a statute may be appropriate "where it 'is the better course,' such as when the statute is ameliorative or curative." Carrigan, supra, 428 N.J. Super. at 618 (quoting Oberhand, supra, 193 N.J. at 571)). "The only statutory amendments reducing criminal penalties that are considered ameliorative are ones 'aimed at mitigating a legislatively perceived undue severity in the existing criminal law.'" State v. Chambers, 377 N.J. Super. 365, 375 (App. Div. 2005) (quoting Kendall v. Snedeker, 219 N.J. Super. 283, 287 n.1 (App. Div. 1987)).

Here, the text of N.J.S.A. 2C:35-14 as amended provides no compelling language indicating the legislative intent either way. The pertinent revision of the statute states:

b. A person shall not be eligible for special probation pursuant to this section if the person is convicted of . . .:

. . . .

(2) a crime of the first or second degree enumerated in subsection d. of section 2 of P.L. 1997, c. 117 (C. 2C:43-7.2) [NERA], other than a crime of the second degree involving N.J.S. 2C:15-1 (robbery) or N.J.S. 2C:18-2 (burglary);

[N.J.S.A. 2C:35-14 (underscoring added to note new language constituting the 2012 amendment).]

Thus, while conviction for second-degree robbery previously disqualified a defendant from being sentenced to special probation because it was subject to NERA, the amendment made an exception for such a conviction.2

Since the text of N.J.S.A. 2C:35-14 is not dispositive, we look to other sections of the amending act and its legislative history for indications of legislative intent. Shelley, supra, 205 N.J. at 323-24. The Legislature expressly addressed the issue of retroactive application in an earlier version of the statute, which read:

3. (New section) a. Notwithstanding any court rule limiting the time period within which a motion to reduce or change a sentence may be filed, any person described in subsection b. who, on the effective date of this act, is serving a sentence of imprisonment and who has not had his sentence suspended or been paroled or discharged may move to have his sentence reviewed by the court. If the court finds the person would, on the effective date of this act, be eligible for a sentence to special probation pursuant to N.J.S. 2C:35-14 and that such sentence would serve the interests of justice, the judge may re-sentence the defendant to special probation pursuant to N.J.S. 2C:35-14.

b. A person may move the court to have his sentence reviewed under this section if:

(1) The person was not eligible for a sentence to special probation under N.J.S. 2C:35-14 at the time of sentencing; and (2) The person would be eligible for a sentence of special probation if sentenced on or after the effective date of P.L. ___,c.___ (pending before the Legislature as this bill).

[S. 881, 215th Leg. (Sixth Reprint) at 11-12 (July 19, 2012) (emphasis added).3]

The above paragraphs were added by Senate floor amendments adopted May 24, 2012. They were subsequently removed by Assembly appropriations committee amendments adopted June 18, 2012. Id. at 1, 11-12. If the above paragraphs had been included in the final version of the legislation, the revised statute would have unequivocally applied to a previously-sentenced person such as defendant. However, both chambers of the Legislature did not agree to include language for retroactive application of the amendments, and the Governor signed the bill without such a provision.

Furthermore, the new law was not even made effective immediately upon its passage but six months later.4 L. 2012, c. 23, 7. The Legislature seems to have intended to allow the Drug Court Program time to implement the new provisions of the law to accommodate its expansion. In fact, defendant acknowledges that the Drug Court Program has been implemented through pilot programs in some counties and a phased-in schedule Statewide. Recognizing that the program requires administrative preparations and expenditures, the Legislature permitted its implementation over time rather than mandated its immediate application in all respects, in all parts of the State, and to all potentially eligible applicants.

Another reason not to infer a legislative intent to apply the 2012 amendments retroactively is that the Legislature is presumed to have been aware of existing law as to eligibility for a change of sentence under Rule 3:21-10(b)(1). See Farmers Mut. Fire Ins. Co. of Salem v. N.J. Property-Liability Ins. Guaranty, 215 N.J. 522, 543-44 (2013) ("The Legislature is presumed to be aware of the decisional law of this State."); State v. Fleischman, 189 N.J. 539, 550 (2007) (It is an "established principle of statutory interpretation that the Legislature is presumed to act with knowledge of the judicial construction given to predecessor or related enactments."). At the time N.J.S.A. 2C:35-14 was amended, judicial decisions had precluded motions pursuant to Rule 3:21-10(b)(1) for change of custodial sentences during mandatory parole ineligibility.

In Mendel, supra, 212 N.J. Super. at 113, we held that "when defendant is serving a sentence required by the Graves Act [N.J.S.A. 2C:43-6(c)] he may not make an application under R. 3:21-10(b)." We distinguished between parole ineligibility terms that the court imposes as a matter of its discretionary authority and those that are mandatory by statute. Id. at 112; see also State v. Farrington, 229 N.J. Super. 184, 186 (App. Div. 1988) (defendant may apply for change of sentence under Rule 3:21-10(b) during discretionary term of parole ineligibility pursuant to N.J.S.A. 2C:43-69(b)). We stated in Mendel that the court rule was not intended to permit a reduction of a mandatory custodial sentence and held that "a sentence cannot be changed or reduced under R. 3:21-10(b) below the parole ineligibility term required by statute." Mendel, supra, 212 N.J. Super. at 113; see also State v. Brown, 384 N.J. Super. 191, 196 (App. Div. 2006) (defendant was not eligible for a change of sentence pursuant to Rule 3:21-10(b)(1), but the disqualification applied only while defendant was serving the mandatory one-third period of parole ineligibility under the Graves Act, N.J.S.A. 2C:43-6(c)).

While Mendel and Brown concerned mandatory minimum sentences under the Graves Act, N.J.S.A. 2C:43-6(c), we have reached the same conclusion with respect to mandatory sentences under narcotics laws. State v. Diggs, 333 N.J. Super. 7, 10-11 (App. Div.), certif. denied, 165 N.J. 678 (2000) (minimum mandatory sentence under N.J.S.A. 2C:35-7, school zone statute); see also State v. DeJesus, 252 N.J. Super. 456, 461-62 (Law Div. 1991) (mandatory term of imprisonment under N.J.S.A. 2C:43-6(f) for repeat drug offender).

In State v. Hoang Le, 354 N.J. Super. 91 (Law Div. 2002), the court applied the holding of Mendel to a mandatory sentence of imprisonment under NERA. Because parole ineligibility under NERA is mandatory, the court held a defendant cannot move for a change of sentence until after the term of parole ineligibility has elapsed. Id. at 96-97. The Legislature did not attempt to address application of the court rule when it amended the Drug Court statutes in 2012, despite its knowledge that the courts had precluded changes under Rule 3:21-10(b)(1) during mandatory parole ineligibility.

Defendant makes several policy arguments supporting his inclusion in the eligibility pool of Drug Court candidates, as well as that of similarly situated inmates. We have no quarrel with the policy considerations that favor broader eligibility. Indeed, the Senate previously agreed that the amendments should apply to those who were already sentenced on charges of second-degree robbery or burglary and otherwise qualify for inclusion in the program. But we are not policy makers; we are interpreters of the legislation in the circumstances presented by specific cases. We do not know the administrative and economic impact of applying the statute to previously sentenced inmates. We decline to make a policy determination that the amended statute should be applied to those defendants who were sentenced before its effective date.

Affirmed.

1 Two additional and related new statutes, N.J.S.A. 2C:35-14.1 and -14.2, went into effect one year after their enactment, in July 2013. L. 2012, c. 23, 7.

2 Possession of a firearm at the time a crime was committed remains a disqualification, N.J.S.A. 2C:35-14(a)(5), but use of a firearm in the commission of a robbery would typically elevate the crime to first-degree armed robbery, N.J.S.A. 2C:15-1(b), which also continues to remain a disqualifying offense.

3 Available at http://www.njleg.state.nj.us/2012/Bills/

AL12/23_.PDF.

4 An August 13, 2012 memorandum issued by the State Attorney General to County Prosecutors directed that the State would voluntarily apply the new legislation immediately to defendants awaiting trial and sentencing, but it denied any concession that the amended statute should be applied retroactively before its effective date. One purpose of the Attorney General's decision was to avoid delays in the disposition of pending criminal cases.