STATE OF NEW JERSEY VS. MARQUIS S. HOWARD (03-10-1109, UNION COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-2168-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARQUIS S. HOWARD,
Defendant-Appellant.
__________________________
Submitted June 6, 2019 – Decided June 13, 2019
Before Judges Simonelli and Whipple.
On appeal from Superior Court of New Jersey, Law
Division, Union County, Indictment No. 03-10-1109.
Marquis S. Howard, appellant pro se.
Jennifer Davenport, Acting Union County Prosecutor,
attorney for respondent (Frank Lawrence Valdinoto,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Marquis Howard appeals from the August 30, 2017 Law
Division order denying his motion for a reduction of sentence pursuant to Rule
3:21-10(b)(3). On appeal, defendant raises the following contention:
Point I
The Lower Court Decision to Deny [Defendant's]
Motion for a Change of Sentence Pursuant to [Rule]
3:21-10(b)(3), Should be Reversed Because it was
Based Upon an Incorrect Interpretation of the Rule.
We reject this contention and affirm
On October 17, 2003, a grand jury indicted defendant for first-degree
murder, N.J.S.A. 2C:11-3(a)(1) and/or (2) (count one); and third-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count
two). Pursuant to a plea agreement, defendant pled guilty to count two and to
an amended charge of first-degree aggravated manslaughter, N.J.S.A. 2C:11-
4(a), on count one. In exchange for defendant's plea, the State agreed to
recommend a twenty-two year term of imprisonment on count one, subject to a
mandatory eighty-five percent period of parole ineligibility pursuant to the No
Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a concurrent five-year term
on count two. On November 19, 2004, the court sentenced defendant in
accordance with the plea agreement and entered a judgment of conviction (JOC).
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On May 22, 2017, defendant filed a motion for a reduction of his sentence
pursuant to Rule 3:21-10(b)(3). Relying on State v. Mendel, 212 N.J. Super.
110 (App. Div. 1986), the motion judge denied the motion, finding defendant
was not entitled to relief under the rule because he had not completed his
statutorily mandated term of parole ineligibility and failed to submit an affidavit
or certification from the Union County Prosecutor's Office.
On appeal, defendant argues the judge erred in concluding that Mendel
requires him to serve his statutorily mandated period of parole ineligibility
before he is entitled to relief under Rule 3:21-10(b)(3). He argues that pursuant
to the rule, he can file a motion to reduce his sentence at any time regardless of
the statutorily mandated parole ineligibility and is entitled to a reduction.
Rule 3:21-10(a) provides:
Except as provided in [Rule 3:21-10(b)], a motion to
reduce or change a sentence shall be filed not later than
[sixty] days after the date of the judgment of
conviction. The court may reduce or change a sentence,
either on motion or on its own initiative, by order
entered within [seventy-five] days from the date of the
judgment of conviction and not thereafter.
Because the court entered defendant's JOC in November 2004, defendant's
motion was untimely. Thus, he had to meet one of the exceptions in Rule 3:21-
10(b). Defendant relies on Rule 3:21-10(b)(3), which permits the filing of a
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motion and entry of an order "changing a sentence for good cause shown upon
the joint application of the defendant and prosecuting attorney[.]" Defendant is
correct that a motion under Rule 3:21-10(b) may be filed "at any time."
However, we held in Mendel, 212 N.J. Super. at 113, that "a sentence cannot be
changed or reduced under [Rule] 3:21-10(b) below the parole ineligibility term
required by statute."
Defendant's twenty-two year sentence is subject to the mandatory eighty-
five-percent period of parole ineligibility under NERA. His statutory minimum
term of imprisonment is eighteen years and seven months and he will not be
eligible for parole until December 2022. Thus, his sentence may not be changed
or reduced under Rule 3:21-10(b)(3).
We reject defendant's argument that our holding in Mendel applies only
to Rule 3:21-10(b)(1).1 We made clear in Mendel that "[w]here 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 did not draw a distinction between Rule 3:21-10(b)(1) and (3), and did not
1
Rule 3:21-10(b)(1) permits the filing of a motion and entry of an order
"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[.]"
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exempt subsection (3) applicants from serving their statutorily mandated terms
of parole ineligibility before seeking a reduction or change of sentence.
Defendant has not completed his statutorily mandated period of parole
ineligibility, and thus, is not entitled to relief under Rule 3:21-10(b)(3). In
addition, defendant failed to assert any facts showing good cause and that his
application was "the joint application of the defendant and prosecuting
attorney." See R. 3:21-10(b)(3).
Affirmed.
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