STATE OF NEW JERSEY v. GREGORY J. BARTHOLOMEW
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2735-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GREGORY J. BARTHOLOMEW,
a/k/a BOO BOO, GREG, and ZIGGY,
Defendant-Appellant.
_______________________________
Submitted January 28, 2020 – Decided March 3, 2020
Before Judges Yannotti and Currier.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 98-05-0658.
Gregory J. Bartholomew, appellant pro se.
Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Samuel J. Marzarella, Chief
Appellate Attorney, of counsel and on the brief).
PER CURIAM
Defendant appeals from an order of the Law Division dated January 22,
2019, which denied his motion for a reduction of his sentence. We affirm.
Defendant was charged under Indictment No. 98-05-0658 with five counts
of first-degree armed robbery, N.J.S.A. 2C:15-1(a) (counts one, three, five,
seven, and nine), and five counts of third-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(d) (counts two, four, six, eight, and ten).
The trial court dismissed counts nine and ten, and defendant was then tried
before a jury, which found him not guilty on counts five and six, but guilty on
the remaining counts.
At sentencing, the trial court merged counts two, four, and eight with
counts one, three and seven, respectively. Because defendant previously had
been convicted of two armed robberies, the court sentenced defendant for the
robberies to concurrent terms of life imprisonment without parole, pursuant to
N.J.S.A. 2C:43-7.1, the so-called "Three Strikes Law." The judge entered a
judgment of conviction (JOC) dated May 31, 2001.
Defendant appealed from the JOC. We affirmed defendant's convictions
and sentence. State v. Bartholomew, No. A-0951-01 (App. Div. March 5, 2003).
The Supreme Court denied defendant's petition for certification. State v.
Bartholomew, 177 N.J. 572 (2003).
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In August 2004, defendant filed a petition for post-conviction relief
(PCR), alleging ineffective assistance of counsel. On November 13, 2007, the
court denied the petition and defendant appealed. We affirmed the order
denying PCR. State v. Bartholomew, A-4801-07 (App. Div. May 4, 2009). The
Supreme Court denied defendant's petition for certification. State v.
Bartholomew, 200 N.J. 210 (2009).
In July 2010, defendant filed a petition for writ of habeas corpus in the
United States District Court for the District of New Jersey. The district court
found that the petition was time-barred and refused to issue a certificate of
appealability. Bartholomew v. Ricci, Civ. A. No. 10-3666 FLW, 2 011 WL
5869595 (D.N.J. Nov. 21, 2011). The Court of Appeals for the Third Circuit
dismissed defendant's appeal for lack of jurisdiction.
Defendant then filed a motion in the district court pursuant to Fed. R. Civ.
P. 60(b) for relief from the judgment dismissing his habeas petition. On
September 20, 2013, the court denied the motion. Defendant later filed another
motion in the district court pursuant to Fed. R. Civ. P. 60(b) for relief from the
judgment. On October 12, 2018, the court denied the motion. Bartholomew v.
Ricci, Civ. A. No. 10-3666 FLW, 2 018 WL 4953007 (D.N.J. Oct. 12, 2018).
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On January 6, 2016, defendant filed a second petition for PCR in the Law
Division, which he withdrew. Defendant refiled the petition on June 7, 2016.
On August 1, 2016, the PCR court found that good cause did not exist for the
assignment of counsel and dismissed the petition as untimely. We affirmed the
court's order. State v. Bartholomew, No. A-5490-16 (App. Div. Feb. 7, 2019).
In 2017, defendant filed two additional PCR petitions. The court entered orders
denying the petitions on April 28, 2017, and June 30, 2017.
In June 2018, defendant filed a pro se motion for a reduction of his
sentence pursuant to Rule 3:21-10(b)(3). In his motion, defendant stated that he
has taken "every class available to address his anti-social issues and criminal
behavior." He asserted that in 2001, he "accepted" religion "into his life." In
2004, defendant married a woman he met sometime earlier.
Defendant stated that in 2017, the State established a Substance Use
Disorder (SUD) program at one of its correctional facilities. He wrote to a state
agency seeking information about admission to the program. He allegedly was
informed he could not be admitted to the program unless he had medium custody
status and ten years or less remaining on his sentence.
Defendant argued that he established "good cause" for a change of his
sentence under Rule 3:21-10(b)(3). He noted that the Ocean County
A-2735-18T4
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Prosecutor's Office (OCPO) had not joined in his motion. He argued, however,
that the rule does not require the prosecuting attorney to agree to his motion. He
stated that "[r]etribution must give way to the redemption of each individual."
He said he has served twenty years of his sentence, and during those twenty
years, he has found the redemption needed for rehabilitation.
Defendant also stated that the State's judicial system and the New Jersey
Department of Corrections had accomplished what they were "designed to do,"
which is "to completely change[] a criminal into a law abiding system and
productive member of our society . . . ." He asked what additional actions he
would be required to take to have the OCPO join in his motion.
Defendant added that in August 2018, his wife would turn seventy-five
years old. He expressed concerns about her ability to meet the expenses of her
home. He asserted that he is employable and would be able to provide "the
necessary money" to help her meet expenses, presumably upon his release.
The judge addressed defendant's motion in a written opinion. The judge
noted that defendant did not file his motion within the time required by Rule
3:21-10(a), and he was seeking relief under Rule 3:21-10(b)(3). The judge
stated that he could only grant the relief under that section of the rule if the relief
A-2735-18T4
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was requested upon the joint application by defendant and the prosecuting
attorney.
The judge noted that the OCPO had advised the court that it was not
joining in defendant's application. The judge therefore found that defendant was
not eligible for a reduction of sentence under Rule 3:21-10(b)(3). The judge
entered an order dated January 22, 2019, denying the motion. This appeal
followed.
On appeal, defendant argues:
POINT I
THE LOWER COURT VIOLATED PETITIONER'S
DUE PROCESS PROTECTION WHEN IT [MADE A
PIECEMEAL DECISION] BASED [ON] ANOTHER
PETITIONER'S LEGAL MOTION (Jackson),
THEREFORE REQUIRING A [VACATUR] OF THE
LOWER COURT'S ORDER AND REMANDING THE
MATTER BACK TO THE LOWER COURT.
POINT II
THE LOWER COURT VIOLATED THE
PETITIONER'S EQUAL PROTETION OF THE LAW
WHEN IT COULD NOT RULE PROPERLY IN THE
CASE BECAUSE IT DID NOT INDEPENDENTLY
RULE ON EACH LEGAL ARGUMENT ON THE
MERITS, NOT ENTERTAINING ORAL
ARGUMENT ON THE PETITION. THEREFORE,
THE LOWER COURT'S ORDER MUST BE
REVERSED AND THE MATTER REMANDED FOR
ORAL ARGUMENT.
A-2735-18T4
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POINT III
THE LOWER COURT FAILED TO UPHOLD THE
INTEREST OF JUSTICE WHEN IT VIOLATED
PETITIONER'S CONSTITUTIONAL RIGHT TO
SELF-REPRESENTATION ON HIS MOTION FOR A
REDUCTION OR CHANGE OF SENTENCE,
THEREFORE THIS MATTER MUST BE REVERSED
AND REMANDED.
We have considered defendant's arguments in light of the record and the
applicable law. We are convinced defendant's arguments lack sufficient merit
to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we add
the following comments.
Defendant filed a motion pursuant to Rule 3:21-10 for the reduction of his
sentence. Rule 3:21-10(a) provides in pertinent part that such a motion must be
filed within sixty days after the date of the JOC, and the court may on motion,
or its own initiative, change or reduce a sentence by order filed within seventy -
five days after the date of the JOC.
Rule 3:21-10(b) provides, however, that 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
A-2735-18T4
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(3) changing a sentence for good cause shown upon the
joint application of the defendant and [the] prosecuting
attorney; or
(4) changing a sentence not authorized by law including
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.
As we have explained, defendant filed a motion seeking relief under Rule
3:21-10(b)(3). He asserted that he had established "good cause" for a reduction
of his sentence. As defendant acknowledged, however, the prosecuting attorney
did not join in his motion. The trial court correctly found that, under the
circumstances, it did not have authority under Rule 3:21-10(b)(3) to grant
defendant the relief he was seeking.
We note that while defendant asserted in his motion that he wanted to
enter a SUD at one of the State's correctional facilities, defendant did not seek
relief under Rule 3:21-10(b)(1). In any event, in his motion, defendant did not
establish that he qualified for admission to the SUD, or that a change in his
sentence would necessarily gain him admission to the program.
A-2735-18T4
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Defendant argues, however, that the trial court's decision in this matter
was based on a motion of another defendant. In his opinion, the judge included
several paragraphs, which apparently were taken inadvertently from a decision
on another motion. In all other respects, the judge accurately summarized and
addressed defendant's arguments.
We are convinced that the judge may have erred by incorporating
comments about another motion in his opinion, but this error had no effect on
the judge's ruling on defendant's motion. The judge's decision denying
defendant's motion for a change of his sentence is supported by the record and
consistent with the plain language of Rule 3:21-10(b)(3).
Affirmed.
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