Preview:

a2815-08.opn.html

Original Wordprocessor Version
(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version

This case can also be found at *CITE_PENDING*.
(NOTE: The status of this decision is Unpublished.) NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2815-08T42815-08T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROOSEVELT DAVIS, n/k/a KHABIR UMDABBADAH, Defendant-Appellant. _________________________________________

Submitted October 13, 2009 - Decided Before Judges Reisner and Chambers. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 98-12-4818, 98-12-4822, 98-12-4826, 98-12-4828, 98-12-4830 and 9810-4175. Khabir Umdabbadah, appellant pro se. Paula T. Dow, Essex County Prosecutor, attorney for respondent (Debra G. Simms, Assistant Prosecutor, of counsel and on the brief). PER CURIAM Defendant Roosevelt Davis appeals from the trial court order of January 5, 2009, denying his motion for a change in custody and a reduction in his sentence. We affirm. On September 12, 2000, defendant pled guilty pursuant to a plea agreement to six indictments for armed robbery and related weapons offenses. The plea agreement provided that the prosecutor would not recommend a sentence in excess of twenty-three and one-half years and that the sentence would be subject to the mandatory periods of
file:///C|/Users/Peter/Desktop/Opinions/a2815-08.opn.html[4/20/2013 3:37:13 PM]

a2815-08.opn.html

parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and the Graves Act N.J.S.A. 2C:43-6. On October 27, 2000, defendant was sentenced to a term of twenty years in prison subject to NERA's eighty-five percent period of parole ineligibility. His sentence was affirmed on appeal by order dated April 16, 2002. State v. Davis, No. A-1276-01 (App. Div. April 16, 2002). The Supreme Court denied certification on July 12, 2002. State v. Davis, 174 N.J. 192 (2002). In February 2008, defendant moved before the trial court for a change of custody for admission into a drug and alcohol abuse treatment and therapy program pursuant to Rule 3:21-10(b) and for a reduction in his sentence. The trial court denied the application for a change of custody on the basis that it could not be considered by the court until defendant had served the mandatory portion of his sentence. The trial court denied the application for a reduction of his sentence because it was untimely. On appeal, defendant raises the following issues: POINT I THE TRIAL COURT ERRED IN DENYING THE MOTION FOR CHANGE OF CUSTODY SINCE DEFENDANT'S NERA TERM IS ABOVE THE MINIMUM STATUTORILY MANDATED TERM FOR FIRST-DEGREE ROBBERY. POINT II DEFENDANT MEETS THE CRITERIA FOR A CHANGE OF CUSTODY TO PERMIT ENTRY INTO A DRUG AND ALCOHOL TREATMENT FACILITY. POINT III THE TRIAL COURT ERRED IN REFUSING TO GRANT DEFENDANT A REDUCTION OF SENTENCE BASED UPON HIS REHABILITATIVE . . . EFFORTS, THE REAL-TIME CONSEQUENCES OF THE SENTENCE IMPOSED AND THE FAILURE OF THE COURT AND COUNSEL TO EXPLAIN NERA'S MANDATORY FIVE YEAR PAROLE SUPERVISION. 1. Post-sentencing accomplishments. 2. The real-time consequences of defendant's sentence. 3. Failure to explain NERA's [five] year mandatory parole. Rule 3:21-10(b)(1) allows a defendant serving a custodial sentence to move to change the sentence in order that he may enter "a custodial or non-custodial treatment or rehabilitation program for drug or alcohol abuse." However, the Rule may not be invoked to avoid a parole ineligibility period required by statute. State v. Mendel, 212 N.J. Super. 110, 113 (App. Div. 1986). "Where a parole ineligibility term is required or mandated by statute, an application may not be granted under R. 3:21-10(b) so as to change or reduce that sentence." Ibid. A court has no jurisdiction to consider a Rule 3:21-10(b) application before defendant has served a minimum term required by statute. State v. Brown, 384 N.J. Super. 191, 194 (App. Div. 2006). Relying on this law, the trial court denied
file:///C|/Users/Peter/Desktop/Opinions/a2815-08.opn.html[4/20/2013 3:37:13 PM]

a2815-08.opn.html

defendant's application under Rule 3:21-10(b)(1) because defendant has not yet served eighty-five percent of his twenty-year sentence. Defendant notes that, although he was sentenced to twenty years in prison, the minimum sentence he could have received for his crimes is ten years. He maintains that his Rule 3:21-10(b) application may now be considered because he has already served eighty-five percent of ten years, which he argues is his minimum period of parole ineligibility. We reject this argument. The calculation of the minimum period of parole ineligibility for Rule 3:21-10(b) purposes is based on defendant's actual sentence and is not a theoretical number based on the minimum sentence he could have received under the statutes. See State v. Brown, 384 N.J. Super. 191 (App. Div. 2006). In State v. Brown, the defendant Brown received a twenty-year sentence which was the maximum sentence the court could have imposed. Id. at 195. Under the statute, N.J.S.A. 2C:43-7.2. Accordingly, defendant must serve eighty-five percent of his twenty-year sentence before he is eligible to make a Rule 3:21-10(b) application. Defendant's application to reduce his sentence was properly denied as untimely. See R. 3:21-10(a) (providing that an application to reduce or change a sentence must be made sixty days after the date of the judgment of conviction); R. 1:3-4(c) (providing that the time period set forth in Rule 3:21-10(a) may not be enlarged). Further, defendant's sentence was affirmed on direct appeal. State v. Davis, supra, No. A-1276-01. When arguing that his sentence should be reduced, defendant maintains that he was not advised of all the penal consequences of the plea, namely that his sentence was subject to the mandatory five-year period of parole supervision. He then contends that he should be allowed to withdraw his guilty plea pursuant to State v. Johnson, 182 N.J. 232 (2005). However, withdrawal of his guilty plea was not a form of relief requested in defendant's motion before the trial court; it was not addressed by the trial court; and it was not requested as a form of relief in the point headings of defendant's appellate brief. Accordingly, since this particular relief has not been squarely requested in these proceedings, we do not address the question of whether defendant may withdraw his guilty plea. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (setting forth the general proposition that "our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available.")

Affirmed.

file:///C|/Users/Peter/Desktop/Opinions/a2815-08.opn.html[4/20/2013 3:37:13 PM]

a2815-08.opn.html

Defendant is also referred to in the record as Khabir Umdabbadah. (continued) (continued) 7 A-2815-08T4 November 4, 2009 0x01 graphic

This archive is a service of Rutgers School of Law - Camden. This archive is a service of Rutgers School of Law - Camden.

file:///C|/Users/Peter/Desktop/Opinions/a2815-08.opn.html[4/20/2013 3:37:13 PM]



Download a2815-08.opn.pdf

New Jersey Law