State v. DachielleState v. Dachielle
Defendant‘s post appeal motion for change or reduction of sentence requires this court to consider the interrelation of
On August 16, 1982 defendant entered a plea of guilty to possession with intent to distribute cocaine. On October 7, 1982 he was sentenced to the Hudson County Jail for a period of 364 days. A fine and mandatory penalty for the benefit of the Violent Crimes Compensation Board were also imposed. The sentence was consistent with a negotiated plea; six other charges were dismissed. The presentence report noted:
Defendant states he rarely drinks and denies any drinking problem. He acknowledges smoking marijuana (a couple of times a week) but denies any hard drug use. He denies any dependency [sic].
The court concluded that given the statutory maximum for the offense (12 years), there was no presumption against imprisonment or that it was overcome because the nature of the offense, quantity involved and need for deterrence required incarceration. See e.g., State v. Sobel, 183 N.J. Super. 473 (App.Div. 1982);
At sentencing counsel stated that defendant supplied cocaine to others in the context of his own use. There was no other
Defendant filed this motion on April 17, 1984. It was accompanied by voluminous letters and a booklet entitled “A Client Specific Planning Proposal for Daniel T. Dachielle” prepared in January, 1984 by the National Center on Institutions and Alternatives (NCIA). It contains a discussion of the following subjects:
1. “Offense Behavior” of defendant.
2. His “employment history“.
3. The concerns of and regarding his family.
4. The impact of incarceration on defendant‘s business.
5. Developments while defendant was awaiting disposition and pending appeal.2
6. The “probability for success on probation“.
7. “Sentencing Data“.
8. “Bergen County and New Jersey Department of Corrections Population Data“.
The NCIA concludes that “Mr. Dachielle is an appropriate candidate for a community based sentence for the following reasons:
“— He is a first offender who has admitted his guilt;
— His work history reveals a high degree of industriousness and ability;
— He admits to substance abuse problem and has sought counselling to address it;
— Financial problems, a result of business downturn and drug abuse, contributed to his involvement in the instant offense;
— He is financially and emotionally supportive of his family;
— LaRose Florist, the small business operated by Mr. Dachielle, is in danger of failing if he were incarcerated;
— His conviction has resulted in his losing a Postal Service job and another small business;
— He has performed exemplary during the pre- and post-trial periods;
— His potential for success on probation is excellent;
— Research on sentencing indicates that non-custodial sanctions act as a general deterrent; — Mr. Dachielle‘s community can be compensated as a victim of his offense; and
— The state and county correctional systems are severely overcrowded.”
The NCIA suggests that defendant be placed on probation. Community service,3 substance abuse counselling and urinalysis are recommended as conditions of probation, subject to strict monitoring. Counselling is recommended once a week, and urine monitoring is to occur “at a minimum of once every two weeks.”
The proposal states that “Acknowledgement of Mr. Dachielle‘s treatment for his drug abuse extends beyond the professionals. Mr. Dachielle‘s family and friends attest to the problems he has experienced and believe treatment is unquestionably warranted.” A letter to NCIA from Alpha Center in April of 1983 concludes that defendant‘s family should participate in counselling because, without same, “we can predict that his addictive behavior will continue.” A memorandum from Alpha Center to NCIA in early April 1984 indicates that defendant has been attending weekly counselling sessions since acceptance into the program (in October, 1982 [sic]) and has been undergoing urine monitoring twice a week. It further states:
Psychosocially, there has been much progress and many changes. Daniel appears to be a responsible adult . .. Due to Daniel‘s progress it seems unlikely that he will return to his old behavioral patterns. If, however, Daniel is incarcerated, statistics show that the potential to return to old patterns is very high, especially when Daniel has made considerable progress.
The Center‘s coordinator therefore recommends that defendant “continue” in its program for counselling and be placed on probation. The reasons for the above recommendations are two fold, 1) Daniel is a good risk and the prognosis is good, if given probation, and 2) his friend and child will lose the support that is essential for their existence and for the child‘s mental
From the above it would appear that defendant had a substance abuse problem which may be continuing. On the other hand, the problem was perceived only after sentencing and as a result of it. The subject was developed during the pendency of the appeal but was never presented to any court until after affirmance. Moreover, while the “proposal and recommendations” consider the impact of substance abuse, they are based on a number of factors in the aggregate. The proposals and recommendations are designed to suggest the most preferable sentence as if the matter could be considered de novo. While post judgment factors may be considered, at least if the application is timely or subject to an exception, the 1982 Rule amendment is designed to achieve finality at or shortly after sentence is imposed. Unless an exception applies, the trial court‘s sentence must be final within 75 days of judgment subject to review for abuse of discretion. See State v. Whitaker, 79 N.J. 503 (1979). Compare State v. Hodge, 95 N.J. 369 (1984); State v. Roth, 95 N.J. 334 (1984).
The question in this case is whether the drug abuse component is sufficiently developed or in itself adequate to require a hearing or permit reconsideration of the sentence. The issue is not whether a better sentence could have been imposed; the need for finality prohibits constant or even periodic review of that subject. The Supreme Court has established the policy in that regard.
I hold that, given the recommendation for drug counselling and the request to amend sentence for that reason as well as others, there is jurisdiction to entertain the motion under
As in Williams and McKinney, there is in this case some suggestion, but no meaningful showing or description, of present or continuing addiction and certainly insufficient justification developed as to why a short period of incarceration (without access to drugs) of an estimated 100 days, with credits, before parole eligibility would destroy the progress deemed so significant over the last 1 1/2 years. Moreover, there is no showing that adequate counselling is not available within the Hudson County Jail over the next 3 to 4 months before expected parole eligibility.4 Furthermore, the record continues to reflect the facts developed at sentencing in
The material before the court is impressive. If presented at sentencing, it may well have had more impact. Within 75 days thereafter, it might have sufficed for reduction. Presented after affirmance and because of it, considerations are quite different.
My decision does not put form over substance. It recognizes the need for finality as decided by the Supreme Court in September, 1982. Approximately one month later defendant was sentenced. Much of what was presented on this application, indicates that the sentence was appropriate and salutary. Defendant has made progress to his benefit and the benefit of others. But that progress, given defendant‘s changed attitude in light of the sentence, cannot be the basis for its undoing. The positive showing, as indicated in the “proposal“, relates to subjects in addition to, and quite independent of, drug counselling and the need for further drug treatment.
The defendant‘s sentence apparently has had deterrent impact and value; hopefully it will continue to do so. The motion is denied.