STATE OF NEW JERSEY VS. KRIS B. MYERSÂ (13-11-3313, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5646-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KRIS B. MYERS,
Defendant-Appellant.
________________________________
Submitted May 30, 2017 – Decided June 21, 2017
Before Judges Sabatino and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
13-11-3313.
Kris Myers, appellant pro se.
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Linda A. Shashoua,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Kris B. Meyers appeals from a May 5, 2015 order
denying his post-conviction motion for admission into the drug
court program. We affirm.
I.
We derive the following facts from the record. Defendant
robbed a food store while armed with a knife. Defendant brandished
a large knife in a case during the robbery to place the store
clerk in fear. Defendant then removed $80 from the store's cash
register. Defendant claims that he committed the robbery because
he was addicted to heroin.
On November 14, 2013, a Camden County grand jury returned an
indictment charging defendant with first-degree robbery, N.J.S.A.
2C:15-1(a)(2) (count one); third-degree possession of a weapon
(knife) for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two);
and fourth-degree unlawful possession of a weapon (knife) (count
three).
On June 25, 2014, defendant entered into a plea agreement
with the State to plead guilty to a downgraded count of second-
degree robbery, N.J.S.A. 2C:15-1(a)(2), in exchange for the
State's dismissal of the other charges, and the State's
recommendation of up to an eight-year term of imprisonment with
the associated eighty-five-percent parole ineligibility period and
mandatory parole supervision under the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2.
On September 24, 2014, the trial court sentenced defendant
in accordance with the terms of the plea agreement, imposing a
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six-year term of imprisonment, with an eighty-five percent period
of parole ineligibility, followed by a three-year period of parole
supervision. The trial court also imposed applicable fines and
penalties, and dismissed counts two and three.
On January 14, 2014, defendant moved for a change in custody
to a drug treatment program pursuant to Rule 3:21-10(b)(1). On
February 23, 2015, the trial court denied the motion, finding that
defendant had failed to provide an affidavit of present drug or
alcohol addiction made by a qualified expert. The trial court
further found that defendant had failed to provide documentation
showing that he had been accepted into a New Jersey licensed
treatment program.
Defendant's sentence was affirmed on direct appeal by a
sentencing panel, which found that his sentence was not manifestly
excessive or unduly punitive and did not constitute an abuse of
discretion. State v. Myers, No. A-2257-14 (App. Div. May 4, 2015).
The Supreme Court denied certification on September 30, 2015.
State v. Myers, 223 N.J. 281 (2015).
Defendant also moved for admission into drug court. On May
5, 2015, the trial court denied that motion, finding defendant to
be statutorily ineligible for admission into drug court because
he was serving a mandatory minimum period of incarceration.
Defendant presently appeals from that order.
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On May 11, 2015, defendant filed a motion with this court for
permission to seek drug court. We denied defendant's motion on
October 23, 2015.
Defendant raises the following arguments on appeal:
POINT ONE
THE COURT RELIED ON IMPROPER FACTS IN
DENYING THE DEFENDANT'S MOTION SEEKING
ADMISSION INTO DRUG COURT PURSUANT TO
N.J.S.A. 2C:35-14.
POINT TWO
THE DEFENDANT SHOULD BE ADMITTED INTO THE
DRUG COURT PROGRAM BECAUSE HE MEETS THE MOST
STRINGENT STANDARDS FOR ADMISSION.
POINT THREE
THE COURT FAILED TO APPRECIATE THE
DEFENDANTS DRUG DEPENDENCY, DENYING A FAIR
CONSIDERATION FOR TREATMENT THROUGH THE NEW
JERSEY DRUG COURTS.
II.
"When an appellate court reviews a trial court's analysis of
a legal issue, it does not owe any special deference to the trial
court's legal interpretation." State v. Schubert, 212 N.J. 295,
303-04 (2012). "'[A]ppellate review of legal determinations is
plenary.'" Id. at 304 (quoting State v. Handy, 206 N.J. 39, 45
(2011)). The issues presented here are legal in nature, and thus
our review is plenary. See State v. Maurer, 438 N.J. Super. 402,
411 (App. Div. 2014).
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"Drug Courts are specialized courts within the Superior Court
that target drug-involved 'offenders who are most likely to benefit
from treatment and do not pose a risk to public safety.'" State
v. Meyer, 192 N.J. 421, 428-29 (2007) (quoting Manual for Operation
of Adult Drug Courts in New Jersey (Manual) at 3 (July 2002)).
The basic objective of N.J.S.A. 2C:35-14 (the Drug Court statute)
"is to allow deserving prison-bound offenders the opportunity for
'special; probation,' an opportunity to recover from the throes
of their addiction and the cycle of their involvement with the
criminal justice system." Id. at 428.
At the time defendant engaged in plea negotiations with the
State, he was under indictment for first-degree robbery.
Conviction of a first-degree crime renders a defendant ineligible
for special probation under N.J.S.A. 2C:35-14 (the Drug Court
statute). N.J.S.A. 2C:35-14(b)(1). Although defendant ultimately
was not convicted of first-degree robbery, he did not apply for
admission into Drug Court before sentencing, let alone before
entering into the plea agreement. The plea agreement did not
indicate defendant's intention to apply to Drug Court or reserve
his right to do so. Defendant did not move to withdraw his guilty
plea. Instead, defendant first sought admission into Drug Court
while he was already serving his NERA prison term.
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We discern no error in the trial court's denial of defendant's
motion for a change in custody to a drug treatment program pursuant
to Rule 3:21-10(b)(1). Under Rule 3:21-10(b)(1), an order may be
entered during a custodial term to permit a defendant to enter a
treatment or rehabilitation program for drug or alcohol addiction.
"However, when a parole ineligibility minimum term is required by
statute, a court has no jurisdiction to consider a R. 3:21-10(b)
application." State v. Brown, 384 N.J. Super. 191, 194 (App. Div.
2006). Defendant is still serving the parole ineligibility period
of a NERA term, rendering him ineligible for relief under the
specific pathway of Rule 3:21-10(b)(1). State v. Le, 354 N.J.
Super. 91 (Law Div. 2002); see also State v. Diggs, 333 N.J. Super.
7, 8 (App. Div.), certif. denied, 165 N.J. 678 (2000) (inmate
serving period of parole ineligibility pursuant to N.J.S.A. 2C:35-
7 cannot be transferred to a drug treatment program until the
expiration of the minimum term); State v. Mendel, 212 N.J. Super.
110, 113-14 (App. Div. 1986) (inmate serving mandatory minimum
term under the Graves Act, N.J.S.A. 2C:43-6(c), is ineligible for
relief under Rule 3:32-10(b)(1)).
As the trial court also correctly noted, defendant failed to
provide an affidavit of present drug or alcohol addiction made by
a qualified expert in support of his motion. He also failed to
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provide documentation showing that he had been accepted into a New
Jersey licensed treatment program.
On an application for transfer to a narcotics
treatment program the burden rests upon the
applicant to establish that he is an
appropriate candidate for such relief. To
that end, he is obliged to establish such
facts as would move the judge to exercise his
discretion favorably. The mere assertion or
even proof that he is willing to participate
in such programs or that institutions offering
such programs would accept him as a patient
is insufficient.
[State v. McKinney, 140 N.J. Super. 160, 163
(App. Div. 1976).]
"A motion filed pursuant to [Rule 3:21-10(b)] shall be
accompanied by supporting affidavits and such other documents and
papers as set forth the basis for the relief sought." R. 3:21-
10(c). For this additional reason, defendant's motion was properly
denied as a result of his failure to submit appropriate supporting
affidavits and documents. See McKinney, supra, 140 N.J. Super.
at 163-64.
Defendant further contends that the trial court erred by
denying his post-judgment motion for admission into Drug Court.
We disagree. The trial court found defendant ineligible for Drug
Court based on his conviction for second-degree robbery.
Prior to 2012, a charge or conviction for second-degree
robbery made a defendant ineligible for special; probation. State
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v. Ancrum, ___ N.J. Super. ___, ___ (App. Div. 2017) (slip op. at
10-11). However, in 2012, the Legislature amended N.J.S.A. 2c:35-
14(a)(7) to remove robbery from the list of ineligible pending
charges, and N.J.S.A. 2C:35-14(b)(2) to exclude second-degree
robbery from the ineligible NERA offenses. Ibid. The Legislature
broadened the scope of special probation to allow individuals
convicted of second-degree robbery to be eligible for Drug Court.
While the trial court incorrectly ruled that defendant was
statutorily ineligible for Drug Court, we affirm the denial of
defendant's motion for admission to Drug Court, reaching this
conclusion for a different reason than that expressed by the trial
court.1
"The procedure for admission to and participation in Drug
Court is set forth in the Manual because 'Drug Courts are a
creature of the judiciary'. . . ." Maurer, supra, 438 N.J. Super.
at 412 (quoting State v. Clarke, 203 N.J. 166, 174 (2010) (citation
and internal quotation marks omitted)). The Manual contemplates
the filing of applications for admission to Drug Court prior to
sentencing, not thereafter. "Defendants may make application to
the drug court program at any time following an arrest and up to
1
See State v. Heisler, 422 N.J. Super. 399, 416 (App. Div. 2011)
(stating an appellate court is "free to affirm the trial court's
decision on grounds different from those relied upon by the trial
court").
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plea cutoff." Manual, supra, at 19. In addition, a sentencing
judge reviewing a violation of probation (VOP) report "may consider
making a referral to Drug Court if the offender appears to be
incapable of responding to traditional probationary supervision
and would benefit from participation in Drug Court." Id. at 20.
If that occurs, "the VOP hearing should be adjourned so that an
application to drug court can be processed." Ibid. The third
avenue for admission into Drug Court is on motion of the defendant,
or the court's own motion. N.J.S.A. 2C:35-14. "If an applicant
is found both legally and clinically acceptable for the drug court
program, a formal plea bargain should therefore be offered to the
applicant defendant which identifies drug court participation as
an alternative sentence. Id. at 23.
Defendant did not move for admission to Drug Court until
2015, considerably after he was sentenced and began serving a NERA
term in State prison. We are aware of no authority permitting a
defendant to seek admission to drug court while serving a prison
term. His application was untimely and properly denied.
Our ruling is without prejudice to defendant seeking post-
conviction relief due to any alleged ineffective assistance of his
prior counsel. We intimate here no views about the merits of such
a future application.
Affirmed.
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