Opinion

State of New Jersey v. Keith Mercer

Court
New Jersey Superior Court Appellate Division
Filed
May 21, 2024
Status
Unpublished
Cited by
0 cases
Authority
More cited than 16.1%

The opinion

NOT FOR PUBLICATION WITHOUT THE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-2674-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEITH MERCER,

Defendant-Appellant.

________________________

Submitted May 14, 2024 – Decided May 21, 2024

Before Judges Mayer and Enright.

On appeal from the Superior Court of New Jersey, Law

Division, Ocean County, Accusation No. 04-03-0576.

Keith Mercer, appellant pro se.

Bradley D. Billhimer, Ocean County Prosecutor,

attorney for respondent (Samuel Marzarella, Chief

Appellate Attorney, of counsel; Cheryl L. Hammel,

Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Keith Mercer appeals from the April 18, 2023 order denying

his motion for a reduction or change in his criminal sentence. We affirm.

In March 2004, defendant was charged under Accusation Number 04-03-

0576 with two counts of first-degree aggravated manslaughter, N.J.S.A. 2C:11-

4a and N.J.S.A. 2C:2-6. That month, he waived his right to indictment and trial,

and entered a guilty plea to both counts. On October 28, 2005, the trial court

imposed an aggregate sentence of thirty years on each count, to be served

concurrently, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On April 12, 2023, defendant filed a motion seeking a reduction or change

in his sentence. Six days later, Judge Guy P. Ryan issued an order and

accompanying written opinion, denying defendant's motion as untimely under

Rule 3:21-10(a). The judge also found defendant "fail[ed] to satisfy any of the

exception[s] to the time bar enumerated in Rule 3:21-10(b)." Further, the judge

concluded that although defendant claimed he filed his motion under Rule 3:21-

10(b)(3), "the State confirm[ed] it did not join defendant's motion . . . nor was

the State aware of this motion."

Additionally, the judge found defendant was "not entitled to appointment

of counsel" on his motion because defendant "failed to make a showing of [good]

cause as required by Rule 3:21-10(c)." The judge explained that even though

A-2674-22

2

defendant characterized his motion as a "'joint application' with the State," the

State did not join in his motion. Lastly, the judge stated, "oral argument would

provide no meaningful benefit" to the court, "and therefore[, the court] decide[d]

this matter on the papers."

On appeal defendant raises the following argument:

POINT I

THE [TRIAL] COURT ERRED IN SUMMARILY

DENYING DEFENDANT'S MOTION FOR RULE

3:21-10(B)(3) RELIEF WITHOUT AFFORDING THE

STATE AN OPPORTUNITY TO BE HEARD[.]

THEREFORE, THIS COURT SHOULD REMAND TO

DETERMINE WHETHER THE PROSECUTOR

WOULD [JOIN] DEFENDANT'S APPLICATION,

AND IF SO, RENDER . . . FINDINGS OF FACT AND

CONCLUSION[S] OF LAW BASED UPON

DEFENDANT'S REHABILITATIVE EFFORT AS

DEFENDANT STANDS NOW BEFORE THE

COURT.

This argument lacks merit. R. 2:11-3(e)(2). Accordingly, we affirm the

challenged order, substantially for the reasons set forth by Judge Ryan in his

well-reasoned written opinion. We add the following comments.

A motion for a reduction or change of sentence under Rule 3:21-10 is

committed to the sound discretion of the trial court and will not be disturbed

absent an abuse of discretion. State v. Tumminello, 70 N.J. 187, 193 (1976).

We discern no abuse of discretion here.

A-2674-22

3

Pursuant to Rule 3:21-10(a), "a motion to reduce or change a sentence

shall be filed not later than [sixty] days after the date of the judgment of

conviction [(JOC)]." However, Rule 3:21-10(b) identifies several potential

bases for avoiding the time bar set forth under Rule 3:21-10(a). For example, a

trial court can change a sentence "at any time" "for good cause shown upon the

joint application of the defendant and prosecuting attorney." R. 3:21-10(b)(3).

We also recognize a defendant is ineligible for a reduction or change of

his sentence while still serving a term of parole ineligibility mandated by statute.

State v. Brown, 384 N.J. Super. 191, 194 (App. Div. 2006); State v. Mendel,

212 N.J. Super. 110, 112-13 (App. Div. 1986). Thus, until a defendant

completes a mandatory period of parole ineligibility "a court has no jurisdiction

to consider a [Rule] 3:21-10(b) application." Brown, 384 N.J. Super. at 194.

Here, defendant filed his motion for a reduction or change in sentence

"more than seventeen years . . . after the" JOC was entered. In doing so, he

relied on the exception set forth under Rule 3:21-10(b)(3). But, as Judge Ryan

correctly found, the State did not join in defendant's motion. Moreover,

defendant failed "to satisfy any of the [remaining] exception[s] to the time bar

enumerated in Rule 3:21-10(b)." Therefore, Judge Ryan properly denied

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4

defendant's motion and correctly rejected defendant's corollary requests for

appointment of counsel and argument on the motion.

Affirmed.

A-2674-22

5

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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