STATE OF NEW JERSEY v. ROBERT A. GOODLIN

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4407-19T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ROBERT A. GOODLIN,

     Defendant-Appellant.
_______________________

                   Submitted October 14, 2020 – Decided November 2, 2020

                   Before Judges Haas and Natali.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 18-03-0140.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Christiane Cannon, Assistant Deputy Public
                   Defender, of counsel and on the brief).

                   Lyndsay V. Ruotolo, Acting Union County Prosecutor,
                   attorney for respondent (Michele C. Buckley, Special
                   Deputy Attorney General/Acting Assistant Prosecutor,
                   of counsel and on the brief).

PER CURIAM
      Defendant appeals from a June 19, 2020 Law Division order that denied

his motion to amend his custodial sentence under Rule 3:21-10(b)(2). We

affirm.

                                       I.

      Defendant, a former teacher at Elizabeth High School, was charged with

sexually assaulting two minor students between 1993 and 2003.           He was

subsequently indicted and charged with: 1) two counts of first-degree aggravated

sexual assault,  N.J.S.A. 2C:14-2(a)(2)(b); 2) two counts of second-degree sexual

assault,  N.J.S.A. 2C:14-2(c)(4); 3) two counts of third-degree aggravated

criminal sexual contact,  N.J.S.A. 2C:14-3(a); 4) four counts of fourth-degree

criminal sexual contact,  N.J.S.A. 2C:14-3(b); 5) two counts of third-degree

endangering the welfare of a child by engaging in sexual conduct,  N.J.S.A.

2C:24-4(a)(1); and 6) two counts of second-degree sexual assault,  N.J.S.A.

2C:14-2(c)(1). Shortly after he was indicted, defendant pled guilty to two counts

of second-degree sexual assault.

      On May 24, 2019, Judge William A. Daniel sentenced defendant to an

aggregate three-year prison term subject to an 85% period of parole ineligibility

under the No Early Release Act (NERA),  N.J.S.A. 2C:43-7.2. Judge Daniel

applied aggravating factors three, the risk that defendant will commit another


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offense, and nine, the need for deterring defendant and others from violating the

law. The judge also found applicable mitigating factor seven, the defendant 's

lack of criminal history. Under NERA, defendant's earliest release date is in

December 2021.

      Defendant is currently incarcerated at the Adult Diagnostic and Treatment

Center for sex offenders. On May 27, 2020, defendant filed a motion to be

released from prison under Rule 3:21-10(b)(2), or to suspend his sentence under

State v. Boone,  262 N.J. Super. 220 (Law Div. 1992), based on his heightened

risk factors should he contract COVID-19. Defendant is seventy-seven years

old and suffers from "type [two] diabetes mellitus, skin cancer, glaucoma and

blindness, aneurysms, microvascular disease, hypertension, asbestosis, and

chronic obstructive pulmonary disease."

      At oral argument, defendant withdrew his request for suspension of his

sentence under Boone and instead only argued for release under Rule 3:21-

10(b)(2).   On June 19, 2020, Judge Daniel acknowledged defendant's pre-

existing conditions but denied his motion to amend his custodial sentence.

Judge Daniel relied on State v. Mendel,  212 N.J. Super. 110 (App. Div. 1986)

and concluded a court cannot change or reduce a sentence under Rule 3:21-




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10(b)(2) until defendant has completed his parole ineligibility term as mandated

by the applicable statute. This appeal followed.

                                       II.

      On appeal, defendant first argues that the court erred by concluding he

could not seek release under Rule 3:21-10(b)(2). Specifically, defendant asserts

the court's reliance on Mendel was misplaced because that case was limited to

relief under Rule 3:21-10(b)(1), not subsection (b)(2). We disagree.

      Rule 3:21-10(b)(2) provides in pertinent part that "[a] motion may be filed

and an order may be entered at any time . . . amending a custodial sentence to

permit the release of a defendant because of illness or infirmity of the

defendant."   The Rule allows the court to grant "extraordinary relief to a

prisoner." State v. Priester,  99 N.J. 123, 135 (1985).

      In Mendel, defendant pled guilty to two counts of robbery and one count

of conspiracy and was sentenced to an aggregate eight-year term, with four years

of parole ineligibility under the Graves Act,  N.J.S.A. 2C:43-6(c).  212 N.J.

Super. at 112. Defendant had served less than three years when he filed a Rule

3:21-10(b)(1) motion seeking a change or reduction of his sentence. Ibid.

      We held that a defendant may move under Rule 3:21-10 for a change or

reduction of sentence when the parole ineligibility term is imposed by the court


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"but not required by statute as a mandatory sentence." Id. at 112-13. We stated

that Rule 3:21-10 "was never intended to permit the change or reduction of a

custodial sentence which is required by law." Id. at 113. We further noted that

"where a parole ineligibility term is required or mandated by statute, an

application may not be granted under [Rule] 3:21-10(b) so as to change or reduce

that sentence." Ibid.

      We reasoned that where a defendant is "serving a parole ineligibility term

above that required to be served as a minimum mandatory period of parole

ineligibility, the application can be considered under [Rule] 3:21-10(b) . . . ."

Ibid. Therefore, because defendant had not completed his "three-year minimum

ineligibility term required by the Graves Act . . . the court could not change or

reduce the sentence under [Rule] 3:21-10(b)(1)." Id. at 114.

      Contrary to defendant's argument, we did not limit our decision in Mendel

to Rule 3:21-10(b)(1) motions and in that regard repeatedly referenced Rule

3:21-10(b) in our opinion. We also conclude that there is no principled reason

to restrict Mendel's holding to applications under subsection (b)(1). See also

State v. Brown,  384 N.J. Super. 191, 194 (App. Div. 2006) (noting that "when a

parole ineligibility minimum term is required by statute, a court has no

jurisdiction to consider a [Rule] 3:21-10(b) application."); Pressler & Verniero,


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Current N.J. Court Rules, cmt. 2.2. on R. 3:21-10(b) (2020) (citing Mendel,  212 N.J. Super. at 110).

      We also disagree with defendant's assertion that the New Jersey Supreme

Court's recent decision in In Re Request to Modify Prison Sentences, Expedite

Parole Hearings, and Identify Vulnerable Prisoners,  242 N.J. 357 (2020)

overruled Mendel's mandatory parole ineligibility restriction. In In Re Request

to Modify, the Supreme Court addressed whether a defendant was required to

"exhaust the administrative process under Executive Order 124 before

[applying] for relief under Rule 3:21-10(b)(2)." Id. at 379. Executive Order

124 was initiated in response to the COVID-19 global pandemic and "created a

mechanism to identify inmates in state prison to be considered for parole or a

medical furlough." Id. at 367. When our Supreme Court created guidance for

the courts to review relief under Executive Order 124, it did so noting that other

avenues for relief were available to all inmates—such as Rule 3:21-10(b)(2)—

which did not include the strict conditions that must be satisfied for Executive

Order 124 to apply. See id. at 380. The Court did not, however, hold that Rule

3:21-10(b)(2) authorizes the release of a prisoner before the completion of a

mandatory minimum term required by statute. We therefore reject defendant's




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reliance on In re Request to Modify as it fails to establish that he is entitled to

relief under Rule 3:21-10(b)(2) under the circumstances.

      Here, defendant was convicted of an offense to which NERA applies. See

 N.J.S.A. 2C:43-7.2(d)(8). NERA imposes a statutorily mandated minimum

period of incarceration, which is "85% of the sentence imposed, during which

the defendant shall not be eligible for parole."  N.J.S.A. 2C:43-7.2(a). As

defendant has not completed the statutorily imposed minimum parole

ineligibility, he is barred from relief under Rule 3:21-10(b). See Mendel,  212 N.J. Super. at 113-14.

                                       III.

      Defendant further argues that he meets the criteria for release under Rule

3:21-10(b)(2) and that the trial court erred in failing to review the factors for

release delineated in Priester. Although we acknowledge that the trial court

failed to address the Priester factors, we nevertheless conclude that the record

failed to support a change in defendant's sentence under Rule 3:21-10(b)(2).

      "The predicate for relief under [Rule 3:21-10(b)(2)] is proof of the serious

nature of the defendant's illness and the deleterious effect of incarceration on

the prisoner's health." Priester,  99 N.J. at 136. Furthermore, an inmate must

establish that the medical services that are "unavailable at the prison would be


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not only beneficial . . . but are essential to prevent further deterioration in [the

defendant's] health." Id. at 135-36 (quoting State v. Tumminello,  70 N.J. 187,

193 (1976)). The inmate also must show that circumstances in his health have

changed since the time of the original sentence. Id. at 136. Moreover, the court

must consider the "nature and severity of the crime, the severity of the sentence,

the criminal record of the defendant, the risk to the public if the defendant is

released, and the defendant's role in bringing about his current state of health."

Id. at 137.

      In Priester, the defendant pled guilty to aggravated sexual assault, in

violation of  N.J.S.A. 2C:14-2(a)(4) and (6). Id. at 129. The trial court sentenced

defendant to a ten-year custodial term with a five-year period of parole

ineligibility. Id. at 130. Approximately one year after he was sentenced, the

defendant sought relief under Rule 3:21-10(b)(2), asserting he suffered from

certain medical conditions and that he would benefit from medical treatment and

rehabilitative services that were available outside of the prison environment. Id.

at 130-31.

      The trial court denied relief. Id. at 131. We reversed and excised the

defendant's parole ineligibility term so that the Parole Board could consider

whether and under what circumstances the defendant should be released on


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parole. Ibid. On appeal, the Supreme Court held "that Rule 3:21-10(b)(2) may

be applied only to release a prisoner from prison but not to reduce or change his

sentence." Id. at 141. The Court therefore reversed our judgment "excising" the

defendant's parole ineligibility term. Ibid.

      Here, after considering the Priester factors, we conclude the record does

not support defendant's request for relief. While our Supreme Court in In re

Request to Modify noted that the COVID-19 pandemic "amounts to a change of

circumstances under [Rule 3:21-10(b)]," see  242 N.J. at 379, there is no

evidence in the record showing that the facility housing defendant is unable to

provide him with treatment for any of his underlying conditions or that he has

actually contracted COVID-19. Similarly, defendant does not suggest that he

has not received adequate medical treatment to date. While we understand

defendant's concerns about COVID-19, "[a] generalized fear of contracting an

illness is not enough" to warrant relief under Priester. Ibid.

      Further, Priester requires consideration of the seriousness of defendant's

crime.  99 N.J. at 137. Here, defendant's crimes are of such significance that the

Legislature has concluded they require the application of NERA. Additionally,

the sentencing court found defendant at risk of committing another offense,

another factor weighting against defendant under the Priester analysis. We are


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therefore convinced the judge did not err by denying defendant's motion for

release under Rule 3:21-10(b)(2).

      Affirmed.




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