Opinion
DOCKET NO. A-3505-12T3
09-19-2014
STATE OF NEW JERSEY, Plaintiff-Appellant, v. RICARDO RIVERA, JR., a/k/a RICARDO RIVERA, Defendant-Respondent.
Ricardo Rivera, Jr., appellant pro se. Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-11-3723. Ricardo Rivera, Jr., appellant pro se. Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Ricardo Rivera, Jr. appeals from the March 8, 2013 Law Division order, which denied his motion for a change in sentence and custody. For the following reasons, we affirm.
On March 3, 2009, defendant pled guilty to first-degree robbery, N.J.S.A. 2C:15-1. On April 17, 2009, the court imposed a ten-year term of imprisonment subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and granted defendant 905 days of gap time credits and no jail credits. The court imposed the sentence consecutively to State and federal sentences defendant was then serving. Defendant did not appeal his conviction or sentence.
In a September 26, 2011 letter to the court, defendant inquired about jail credits and requested a change in sentence. On November 3, 2011, the court responded that the judgment of conviction accurately reflected the jail credits to which defendant was entitled, and defendant must file a motion pursuant to Rule 3:21-10 for a change in sentence.
Defendant did not file a motion until November 19, 2012. Relying on Rule 3:21-10(a), Rule 3:21-10(b)(3) and (4), and N.J.S.A. 2C:44-1f(2), he requested a change in sentence, arguing that the gap time credits were meaningless because they did not apply to reduce the NERA term. Defendant also argued that given the meaningless nature of the gap time credits, the sentencing judge should have imposed his sentence concurrently to the State and federal sentences. He argued, alternatively, that the sentencing judge should have sua sponte sentenced him to a term one degree lower. He also requested a change in custody permitting his transfer to the custody of the United States Bureau of Prisons.
In a March 8, 2013 written opinion, Judge Michele M. Fox held the motion was untimely filed as per Rule 3:21-10(a), and defendant failed to establish any of the exceptions in Rule 3:21-10(b). The judge determined that defendant's sentence was authorized by the Code of Criminal Justice and did not constitute an abuse of discretion. This appeal followed.
On appeal, defendant raises the following contentions:
POINT ONE
DEFENDANT BELIEVES THAT THE SENTENCING COURT SHOULD HAVE CONSIDERED IMPOSING A CONCURRENT SENTENCE AS A MATTER OF FUNDAMENTAL FAIRNESS AND EQUAL PROTECTION, A CASE IN WHICH "GAP-TIME" CREDIT IS OTHERWISE MEANINGLESS; CIRCULARLY, THE MOTION COURT ERRED IN FINDING THAT THE SENTENCING JUDGE DID NOT ABUSE HIS DISCRETION IN IMPOSING A CONSECUTIVE SENTENCE.
POINT TWO
THE SENTENCING JUDGE DID NOT ACT REASONABLY IN FINDING THAT THE AGGRAVATING FACTORS OUTWEIGHED THE MITIGATING FACTORS, AND GIVEN THAT DEFENDANT'S ENTITLEMENT TO GAP-TIME CREDIT SERVES NO MEANINGFUL PURPOSE AND IN THE INTEREST OF
JUSTICE AND FUNDAMENTAL FAIRNESS, ABUSED HIS DISCRETION IN FAILING TO CONSIDER SENTENCING DEFENDANT, SUA SPONTE, TO A TERM APPROPRIATE TO A CRIME ONE DEGREE LOWER THAN THAT OF THE CRIME FOR WHICH HE WAS CONVICTED; CIRCULARLY, THE MOTION COURT'S DECISION IS ERRONEOUS AND AN ABUSE OF DISCRETION.
We have considered these contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Fox in her written opinion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office. CLERK OF THE APPELLATE DIVISION
N.J.S.A. 2C:44-1f(2) addresses the court's ability to sentence a defendant one degree lower.