STATE OF NEW JERSEY VS. SEBASTIAN S. SEWALL (19-01-0201., ESSEX…

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3884-19T4
STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

SEBASTIAN S. SEWALL,
a/k/a SEBASTIAN SEWELL,
SEBASTIAN SEAWALL and
SBATIAN SEWLL,

     Defendant-Appellant.
_________________________

                   Submitted September 14, 2020 – Decided October 21, 2020

                   Before Judges Fasciale and Rothstadt.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 19-01-0201.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Morgan A. Birck, Assistant Deputy Public
                   Defender, on the brief).

                   Theodore N. Stephens, II, Acting Essex County
                   Prosecutor, attorney for respondent (Frank J. Ducoat,
                   Special Deputy Attorney General/Acting Assistant
                   Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant Sebastian S. Sewall appeals from the Law Division's May 13,

2020 denial of his motion for a change in custody pursuant to Rule 3:21-10(b)(2)

and from the court's subsequent denial of his motion for reconsideration. We

affirm.

      Defendant, who had pled guilty to second-degree unlawful possession of

a handgun, N.J.S.A. 2C:39-5(b)(1), is incarcerated in State prison serving a five-

year sentence that is subject to a forty-two month period of parole ineligibility

under the Graves Act, N.J.S.A. 2C:43-6, which was imposed in 2019 in

accordance with his plea agreement. His appeal from his conviction is pending

before us.

      In May 2020, defendant filed his motion for a reduction of sentence under

Rule 3:21-10(b)(2) or for a judicial furlough under State v. Boone, 262 N.J.

Super. 220 (Law Div. 1992). Defendant supplied the court with 166 pages of

medical records from a hospitalization in 2016 and 221 pages of Department of

Corrections (DOC) medical records. The 2016 records related to defendant's

hospitalization for an illness that seriously impacted his pulmonary and

respiratory systems, including by causing a collapsed lung, which required him

to be placed on a ventilator. According to defendant, after his treatment was


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completed in 2016, he continued to suffer from shortness of breath, an elevated

heartrate, and difficulty swallowing. However, there were no current records or

reports indicating defendant was suffering from any of those conditions or other

serious health issues when he was sentenced nor that he was at a heightened risk

of harm due to the coronavirus at the time of his motion.           Nevertheless,

according to defendant, he was at heightened risk of death if he were to contract

the virus.

      On May 13, 2020, the motion judge entered an order denying defendant's

motion and set forth his reasons in a comprehensive oral decision that was placed

on the record on that date. In his decision, the judge first addressed defendant's

contentions under Boone.       He observed that the case afforded "limited

recognition of the inherent authority of a [c]ourt to issue a furlough," but only

under "certain limited . . . extraordinary circumstances."         Such unique

circumstances included the preservation of life when necessary medical

healthcare could not be provided by the institution where an inmate was

incarcerated.

      The judge then observed that defendant was not being considered for

release by the DOC under the executive orders issued by the governor in

response to the pandemic, because defendant had not demonstrated "the


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requisite risk of death or serious injury from the COVID-19." Moreover, there

was no evidence that the prison institution could not provide defendant with

sufficient medical treatment for any of his claimed ailments.         The judge

concluded this was "not a life or death situation as was contemplated in Boone."

      Turning to defendant's claim for relief under Rule 3:21-10(b)(2), the judge

acknowledged that the Rule provides for the release of a defendant because of

"illness or infirmity." Citing to State v. Priester, 99 N.J. 123, 141 (1985), the

judge noted that the application must be supported by evidence of a change of

circumstances that occurred since the time the sentence was imposed and must

be related to the defendant's health. Reviewing the evidence before him, the

judge concluded that there was no evidence presented that there had been any

change in circumstances affecting defendant's health. He noted that, although

in the past defendant had suffered from certain health issues, at the time of his

sentencing defendant was in good health. The judge explained that, while

defendant stated in his motion that he was exposed to a higher risk "of

contracting Covid-19 because of the confined space within the [prison]," there

had "been no demonstrat[ion] of the . . . requisite change of circumstances in

[defendant's] medical condition since the time of his confinement that would

support relief under [the Rule]."


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      Nevertheless, the judge addressed the merits of defendant's application.

In doing so, he first concluded that he need not address the State's argument that

defendant's application was barred by our holding in State v. Mendel, 212 N.J.

Super. 110, 113 (App. Div. 1986) (stating Rule 3:21-10(b) "was never intended

to permit the change or reduction of the custodial sentence which is required by

law"), because that case addressed subsection (b)(1) of the Rule and not (b)(2).

The judge then considered whether under State v. Wright, 221 N.J. Super. 123

(1987), defendant's application was "meritorious" and concluded it was not. In

reaching his decision, the judge considered the seriousness of the weapons

offense committed by defendant, the fact that it was his second time committing

a Graves Act violation, the risk of defendant's future "criminality," and the lack

of evidence as to "a severe depreciation of defendant's health since

incarceration."

      After the judge denied defendant's motion, on June 5, 2020, the Supreme

Court issued its opinion In re Matter of Request to Modify Prison Sentences,

Expedite Parole Hearings, and Identify Vulnerable Prisoners, 242 N.J. 357

(2020).     Thereafter, relying on that opinion, defendant moved for

reconsideration. Defendant did not offer any new facts in further support of his




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application. According to defendant, the Supreme Court's decision was a change

that warranted reconsideration of the denial of his first application.

      After considering oral argument on June 17, 2020, the motion judge

disagreed with defendant and found that the Supreme Court's decision did not

present any "change in the law" and had no impact on his prior ruling.

According to the judge, "[i]mplicit in [his] original ruling . . . was an

acknowledgment that the pandemic is a change of circumstances satisfying a

threshold to consider the application[] both under Boone and under [the Rule]."

Because the pandemic established the change of circumstances, the judge stated

he considered defendant's motion "on the merits" under Boone and the Rule and

applied the "balancing analysis" required by Wright.                 Under these

circumstances, defendant failed to satisfy "the threshold for reconsideration."

The judge observed that, while defendant had "a generalized fear of contracting

the disease, that [was] insufficient" as "recognized by the Supreme Court." This

appeal ensued.

      On appeal, defendant argues the following point:

            POINT I

            BECAUSE     [DEFENDANT]      IS    AT
            EXCEPTIONALLY    HIGH     RISK    FOR
            COMPLICATIONS AND DEATH IF HE WERE TO
            CONTRACT COVID-19, THE TRIAL COURT

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                                        6
            ABUSED ITS DISCRETION WHEN IT DENIED
            [DEFENDANT'S] R. 3:21-10(b)(2) MOTION.

      According to defendant, he still suffers from symptoms of his 2016 illness

as he must eat and speak "slowly," and "[h]is lungs and heart continue to show

the effects of his [illness], and are too weak to protect against coronavirus." He

contends that the motion judge "did not weigh all of the [required] factors, only

explicitly finding no change in circumstances and [defendant's] criminal

history." We disagree.

      Rule 3:21-10(b)(2) provides: "[a] motion may be filed and an order may

be entered at any time . . . amending a custodial sentence to permit the release

of a defendant because of illness or infirmity of the defendant." "Courts apply

a balancing test to determine whether this 'extraordinary relief' should be

granted." Request to Modify Prison Sentences, 242 N.J. at 378 (quoting Priester,

99 N.J. at 135).

      Generally, to obtain such relief, an "inmate[] must [first] present evidence

of both an 'illness or infirmity'—a physical ailment or weakness—and the

increased risk of harm incarceration poses to that condition. A generalized fear

of contracting an illness is not enough." Id. at 379. Also, before the pandemic,

an inmate was required to make a showing of changed circumstances, but now

that requirement is satisfied where the inmate relies on the pandemic. Ibid.

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      If that "predicate" showing is made, "courts [then] consider 'the serious

nature of the defendant's illness and the deleterious effect of incarceration on

the prisoner's health'; 'the availability of medical services in prison'; 'the nature

and severity of the crime, the severity of the sentence, the criminal record of the

defendant, [and] the risk to the public if the defendant is released.'" Id. at 378–

79 (quoting Priester, 99 N.J. at 135–37).

      "A motion made pursuant to [the] Rule . . . is committed to the sound

discretion of the court." Priester, 99 N.J. at 135. We review decisions granting

or denying relief under the Rule for an abuse of discretion. Id. at 137. An abuse

of discretion "arises when a decision is 'made without a rational explanation,'"

"rested on an impermissible basis," or was "based upon a consideration of

irrelevant or inappropriate factors." Flagg v. Essex Cty. Prosecutor, 171 N.J.

561, 571 (2002) (citation omitted); State v. Williams, 458 N.J. Super. 274, 280

(App. Div. 2019).

      Applying these guiding principles, we conclude that the motion judge did

not abuse his discretion when he denied defendant's motion under the Rule, or

when he refused to reconsider his denial of defendant's motion, substantially for

the reasons expressed by the judge in both of his thorough oral decisions. The

judge considered defendant's application in light of the pandemic and


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determined there was an insufficient demonstration that defendant's continued

incarceration exposed defendant to a serious risk of harm as he was in good

health when he was sentenced, and, after three years, there was no evidence of

any deterioration in his health nor that the DOC could not meet his medical

needs. The judge also found there was no medical evidence supporting a need

to release defendant and that his criminal history and likelihood of committing

other offenses did not warrant his release under the Rule.

      Nevertheless, we part ways with the motion judge in finding that

defendant's Rule 3:21-10(b)(2) motion was not barred due to the fact that he is

currently serving a sentence subject to a mandatory period of parole ineligibility

for his conviction under the Graves Act.       Where a defendant is serving a

mandatory period of parole ineligibility, the court may not grant a defendant

relief absent a showing of immense need, such as the unavailability of necessary

medical assistance, as demonstrated in Boone. See Mendel, 212 N.J. Super. at

113–14 ("when defendant is serving a sentence required by the Graves Act he

may not make an application under R. 3:21-10(b) . . . the application can be

considered under R. 3:21-10(b) consistent with case law and based on

circumstances appearing after completion of the parole ineligibility term

required by statute.").


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      Under the circumstances presented in this case, we conclude not only did

the motion judge not abuse his discretion in denying defendant's application, but

the application itself was barred from consideration due to defendant's

mandatory parole ineligibility period.

      Affirm.




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