STATE OF NEW JERSEY v. RAHEIM M. SUMMERS

NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4633-19T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RAHEIM M. SUMMERS,

     Defendant-Appellant.
_______________________

                   Argued October 27, 2020 – Decided November 10, 2020

                   Before Judges Gilson and Moynihan.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 95-06-2284.

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

                   Theodore N. Stephens II, Acting Essex County
                   Prosecutor, attorney for respondent (Frank J. Ducoat,
                   Special Deputy Attorney General/Acting Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Raheim M. Summers appeals from the order denying his

motion under Rule 3:21-10(b)(2) to amend his aggregate prison sentence of

thirty years with thirty years of parole ineligibility imposed in 1996 for first-

degree murder,  N.J.S.A. 2C:11-3(a),1 arguing:

            POINT I

            THE [MOTION JUDGE] ERRED IN DENYING
            DEFENDANT'S RULE 3:21-10(B)(2) MOTION
            BECAUSE IT FAILED TO APPLY THE
            APPROPRIATE ANALYTICAL FRAMEWORK
            AND   ERRONEOUSLY     HELD    THAT    A
            MANDATORY      PAROLE      DISQUALIFIER
            PRECLUDES MEDICAL RELEASE.

                  A.    The [Judge] Erred In Failing To Properly
                        Analyze "The Increased Risk of Harm
                        Incarceration Poses To An Inmate's
                        Condition," Which Requires Weighing The
                        Increased Risk Of Death Or Serious Illness
                        From COVID-19 Posed By The Inmate's
                        Underlying Medical Conditions Against
                        The DOC's Precautionary Measures To
                        Prevent The Inmate From Contracting
                        COVID-19

1
  Defendant was found guilty by jury of all indicted charges. The judgment of
conviction references  N.J.S.A. 2C:11-3(a)(1) and  N.J.S.A. 2C:11-3(a)(2), as the
original murder charges, and  N.J.S.A. 2C:11-3(a) as the final charge. Neither
the indictment nor the verdict sheet was provided in the appellate record, so we
cannot determine the subsections under which the jury found defendant guilty
on that count. Second-degree possession of a weapon for an unlawful purpose,
 N.J.S.A. 2C:39-4(a) (count three), was merged into the murder count, and
defendant was sentenced to a concurrent three-year term for third-degree
unlawful possession of a weapon,  N.J.S.A. 2C:39-5(b) (count two).
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                  B.     The [Judge] Erred In Concluding That
                         A Mandatory Parole Disqualifier Precludes
                         Relief Under Rule 3:21-10(b)(2).

      Recognizing relief under Rule 3:21-10(b)(2) "must be applied prudently,

sparingly[] and cautiously," State v. Priester,  99 N.J. 123, 135 (1985), we

discern no abuse of discretion in Judge Mayra V. Tarantino's substantive ruling,

id. at 137; see also State v. Tumminello,  70 N.J. 187, 192-93 (1976), and agree

with her procedural application of the law which we review de novo, State v.

Robinson,  217 N.J. 594, 603-04 (2014). Accordingly, we affirm.

      Judge Tarantino did not conduct an evidentiary hearing but did consider

1195 pages of documents filed by defendant in support of the motion that

allowed her to assess whether defendant met his burden. To further his Rule

3:21-10(b)(2) motion, defendant was required to first demonstrate a change of

circumstances resulting in a severe depreciation of his health since sentence was

imposed. Priester,  99 N.J. at 136-37. If defendant made that predicate showing,

the motion judge was compelled to

            weigh various factors that affect the decision whether
            to grant a release such as, the nature and severity of the
            crime for which he is imprisoned, his criminal record,
            the risk that might result to the public by his release, . .
            . the nature of th[e] illness and the availability of
            appropriate medical services in prison to adequately
            treat or cope with that illness.

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            [State v. Wright,  221 N.J. Super. 123, 127 (App. Div.
            1987).]

Defendant also had to establish "that the medical services unavailable at the

prison would be not only beneficial . . . but are essential to prevent further

deterioration in his health." Priester,  99 N.J. at 135.

      Judge Tarantino acknowledged the Supreme Court's recent holding that

the COVID-19 pandemic established a change of circumstances under Rule

3:21-10(b)(2). See In re Request to Modify Prison Sentences, Expedite Parole

Hearings, & Identify Vulnerable Prisoners,  242 N.J. 357, 379 (2020).

      The judge also acknowledged the medical issues advanced by defendant:

"moderate obstructive sleep apnea requiring use of a CPAP machine,

hypertension, and hyperlipidemia, a specific type of hypercholesterolemia."

And, the judge's thorough review of defendant's five confidential appendices led

to her comprehensive delineation of his additional medical conditions starting

from July 2000: gastroesophageal reflux disease, irritable bowel syndrome,

plantar fasciitis, astigmatism, allergic rhinitis, shoulder strain, lump or mass in

breast, PPD conver[sion], dyspepsia and benign prostatic hypertrophy. But the

judge found the general listing of defendant's diagnoses did "little to inform [the

judge] of the seriousness of his illnesses and their relation to whether release


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from custody is warranted." Instead, the judge found that defendant failed to

show incarceration was having a deleterious impact on his health. The judge

pointed to the voluminous medical and dental records defendant submitted and

found they signaled defendant's "condition has been stable and he has been

receiving appropriate and effective medical treatment while incarcerated," even

noting he was provided a heart-healthy, low-sodium diet in response to his

health conditions.

      "To prevail on a [Rule 3:21-10(b)(2)] motion, inmates must . . . present

evidence of both an 'illness or infirmity' – a physical ailment or weakness – and

the increased risk of harm incarceration poses to that condition." In re Request

to Modify Prison Sentences,  242 N.J. at 379. Defendant failed to meet the latter

requirement. Unlike the defendant in Tumminello, whose worsening diabetes

mellitus necessitated multiple amputations and who was unable to maintain the

sanitary conditions in prison necessary to avoid ulcerations, infections and

further amputations,  70 N.J. at 190-91, defendant has not established that

continued imprisonment would cause his alleged underlying conditions to

deteriorate or that the Department of Corrections (DOC) is unable to address his

medical needs.




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      Judge Tarantino correctly analyzed the applicable factors in concluding

defendant failed to show that continued incarceration would have a deleterious

effect on his health, see Wright,  221 N.J. Super. at 130 (rejecting inmate's

argument for release because he provided no evidence that confinement would

exacerbate his AIDS symptoms), and in following the Court's clear direction:

"A generalized fear of contracting an illness is not enough," In re Request to

Modify Prison Sentences,  242 N.J. at 379, which, contrary to defendant's

argument, does not apply only to those prisoners without preexisting conditions.

Further, the judge considered the DOC's extensive plans for COVID-19

mitigation and for response in the event a prisoner was exposed to, tested

positive for, or showed symptoms of COVID-19.            She found the medical

services were available through the DOC to adequately treat or cope with

defendant's current conditions. But that factor is of limited relevance because it

"is important only insofar as it tends to establish that without such medical

services the defendant's condition will seriously worsen or deteriorate in

prison." Priester,  99 N.J. at 135. Defendant is not in need of any COVID-19

related services because he has not contracted the virus.

      The judge also properly considered that defendant was sentenced for a

"deliberate and reprehensible" murder, supporting her finding that there is a need


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to protect the public, notwithstanding it was defendant's only conviction and

evidence of defendant's rehabilitative efforts by completing institutional

programs.

      Judge Tarantino weighed the evidence presented and analyzed all

applicable legal tenets in determining defendant did not meet the standard

required for relief under Rule 3:21-10(b)(2). We conclude, based on the judge's

thoughtful and thorough analysis, she did not abuse her discretion.

      We also reject defendant's challenge to the judge's determination that

defendant was not entitled to relief under the Rule because he had not yet

completed the parole-ineligibility period to which he was sentenced.         Our

holding in State v. Mendel was not limited to the Rule under which that

defendant's "application for change or reduction of sentence" was made,

specifically Rule 3:21-10(b)(1).  212 N.J. Super. 110, 112 (App. Div. 1986). We

recognized a legislative mandate that a defendant serve a mandatory period of

parole ineligibility precludes a change or reduction of sentence under any of the

exceptions set forth in Rule 3:21-10(b). Id. at 113.

      We are not persuaded by defendant's argument that our Supreme Court's

holding in Priester disassociates applications under Rule 3:21-10(b)(2) from our

holding in Mendel. The Court in Priester reversed our decision to eliminate that


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defendant's period of parole ineligibility, id. at 141, and held that although Rule

3:20-10(b)(2) allows release of a prisoner to treat a serious condition that is

devastatingly impacted by his incarceration, see id. at 135, it does not allow any

reduction of that defendant's sentence, including a parole-ineligibility period, id.

at 141.

      Priester did not impact our decision in Mendel, handed down over a year

later. In Mendel, we recognized the "distinction between an ineligibility term

required by statute and one imposed as a matter of discretion by the court."  212 N.J. Super. at 112. Though the Court in Priester ruled "Rule 3:21-10(b)(2) may

be applied only to release a prisoner from prison," it also held a sentence could

not be reduced or changed.  99 N.J. at 141. Our decision not only followed the

mandate that sentences not be reduced or changed, 2 it recognized a prisoner

could not be released if the Legislature's mandatory sentencing requirements

were circumvented. See Pressler & Verniero, cmt. 2.2 on R. 3:21-10.

      Although we need not address the issue in light of our affirmance of the

substantive reasons for denying defendant's application, we agree that,



2
   We cited Priester in noting "R[ule] 3:21-10(b)(2) was designed to permit
discharge or transfer of prisoners, and an application may not be brought under
that rule to otherwise reduce the sentence or ineligibility term." Mendel,  212 N.J. Super at 114 n.3.
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procedurally, the mandatory period of parole ineligibility precludes relief under

Rule 3:22-10(b)(2).

      Affirmed.




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