                                NOT FOR PUBLICATION WITHOUT THE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 po sted 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-2735-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

GREGORY J. BARTHOLOMEW,
a/k/a BOO BOO, GREG, and ZIGGY,

     Defendant-Appellant.
_______________________________

                    Submitted January 28, 2020 – Decided March 3, 2020

                    Before Judges Yannotti and Currier.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Ocean County, Indictment No. 98-05-0658.

                    Gregory J. Bartholomew, appellant pro se.

                    Bradley D. Billhimer, Ocean County Prosecutor,
                    attorney for respondent (Samuel J. Marzarella, Chief
                    Appellate Attorney, of counsel and on the brief).

PER CURIAM
      Defendant appeals from an order of the Law Division dated January 22,

2019, which denied his motion for a reduction of his sentence. We affirm.

      Defendant was charged under Indictment No. 98-05-0658 with five counts

of first-degree armed robbery, N.J.S.A. 2C:15-1(a) (counts one, three, five,

seven, and nine), and five counts of third-degree possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-4(d) (counts two, four, six, eight, and ten).

The trial court dismissed counts nine and ten, and defendant was then tried

before a jury, which found him not guilty on counts five and six, but guilty on

the remaining counts.

      At sentencing, the trial court merged counts two, four, and eight with

counts one, three and seven, respectively. Because defendant previously had

been convicted of two armed robberies, the court sentenced defendant for the

robberies to concurrent terms of life imprisonment without parole, pursuant to

N.J.S.A. 2C:43-7.1, the so-called "Three Strikes Law." The judge entered a

judgment of conviction (JOC) dated May 31, 2001.

      Defendant appealed from the JOC. We affirmed defendant's convictions

and sentence. State v. Bartholomew, No. A-0951-01 (App. Div. March 5, 2003).

The Supreme Court denied defendant's petition for certification.       State v.

Bartholomew, 177 N.J. 572 (2003).


                                                                       A-2735-18T4
                                      2
      In August 2004, defendant filed a petition for post-conviction relief

(PCR), alleging ineffective assistance of counsel. On November 13, 2007, the

court denied the petition and defendant appealed.        We affirmed the order

denying PCR. State v. Bartholomew, A-4801-07 (App. Div. May 4, 2009). The

Supreme Court denied defendant's petition for certification.             State v.

Bartholomew, 200 N.J. 210 (2009).

      In July 2010, defendant filed a petition for writ of habeas corpus in the

United States District Court for the District of New Jersey. The district court

found that the petition was time-barred and refused to issue a certificate of

appealability. Bartholomew v. Ricci, Civ. A. No. 10-3666 FLW, 2011 WL

5869595 (D.N.J. Nov. 21, 2011). The Court of Appeals for the Third Circuit

dismissed defendant's appeal for lack of jurisdiction.

      Defendant then filed a motion in the district court pursuant to Fed. R. Civ.

P. 60(b) for relief from the judgment dismissing his habeas petition.          On

September 20, 2013, the court denied the motion. Defendant later filed another

motion in the district court pursuant to Fed. R. Civ. P. 60(b) for relief from the

judgment. On October 12, 2018, the court denied the motion. Bartholomew v.

Ricci, Civ. A. No. 10-3666 FLW, 2018 WL 4953007 (D.N.J. Oct. 12, 2018).




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                                        3
      On January 6, 2016, defendant filed a second petition for PCR in the Law

Division, which he withdrew. Defendant refiled the petition on June 7, 2016.

On August 1, 2016, the PCR court found that good cause did not exist for the

assignment of counsel and dismissed the petition as untimely. We affirmed the

court's order. State v. Bartholomew, No. A-5490-16 (App. Div. Feb. 7, 2019).

In 2017, defendant filed two additional PCR petitions. The court entered orders

denying the petitions on April 28, 2017, and June 30, 2017.

      In June 2018, defendant filed a pro se motion for a reduction of his

sentence pursuant to Rule 3:21-10(b)(3). In his motion, defendant stated that he

has taken "every class available to address his anti-social issues and criminal

behavior." He asserted that in 2001, he "accepted" religion "into his life." In

2004, defendant married a woman he met sometime earlier.

      Defendant stated that in 2017, the State established a Substance Use

Disorder (SUD) program at one of its correctional facilities. He wrote to a state

agency seeking information about admission to the program. He allegedly was

informed he could not be admitted to the program unless he had medium custody

status and ten years or less remaining on his sentence.

      Defendant argued that he established "good cause" for a change of his

sentence under Rule 3:21-10(b)(3).         He noted that the Ocean County


                                                                         A-2735-18T4
                                       4
Prosecutor's Office (OCPO) had not joined in his motion. He argued, however,

that the rule does not require the prosecuting attorney to agree to his motion. He

stated that "[r]etribution must give way to the redemption of each individual."

He said he has served twenty years of his sentence, and during those twenty

years, he has found the redemption needed for rehabilitation.

      Defendant also stated that the State's judicial system and the New Jersey

Department of Corrections had accomplished what they were "designed to do,"

which is "to completely change[] a criminal into a law abiding system and

productive member of our society . . . ." He asked what additional actions he

would be required to take to have the OCPO join in his motion.

      Defendant added that in August 2018, his wife would turn seventy-five

years old. He expressed concerns about her ability to meet the expenses of her

home. He asserted that he is employable and would be able to provide "the

necessary money" to help her meet expenses, presumably upon his release.

      The judge addressed defendant's motion in a written opinion. The judge

noted that defendant did not file his motion within the time required by Rule

3:21-10(a), and he was seeking relief under Rule 3:21-10(b)(3). The judge

stated that he could only grant the relief under that section of the rule if the relief




                                                                               A-2735-18T4
                                          5
was requested upon the joint application by defendant and the prosecuting

attorney.

      The judge noted that the OCPO had advised the court that it was not

joining in defendant's application. The judge therefore found that defendant was

not eligible for a reduction of sentence under Rule 3:21-10(b)(3). The judge

entered an order dated January 22, 2019, denying the motion. This appeal

followed.

      On appeal, defendant argues:

            POINT I
            THE LOWER COURT VIOLATED PETITIONER'S
            DUE PROCESS PROTECTION WHEN IT [MADE A
            PIECEMEAL DECISION] BASED [ON] ANOTHER
            PETITIONER'S  LEGAL   MOTION    (Jackson),
            THEREFORE REQUIRING A [VACATUR] OF THE
            LOWER COURT'S ORDER AND REMANDING THE
            MATTER BACK TO THE LOWER COURT.

            POINT II
            THE    LOWER    COURT   VIOLATED    THE
            PETITIONER'S EQUAL PROTETION OF THE LAW
            WHEN IT COULD NOT RULE PROPERLY IN THE
            CASE BECAUSE IT DID NOT INDEPENDENTLY
            RULE ON EACH LEGAL ARGUMENT ON THE
            MERITS,    NOT    ENTERTAINING     ORAL
            ARGUMENT ON THE PETITION. THEREFORE,
            THE LOWER COURT'S ORDER MUST BE
            REVERSED AND THE MATTER REMANDED FOR
            ORAL ARGUMENT.



                                                                        A-2735-18T4
                                       6
              POINT III
              THE LOWER COURT FAILED TO UPHOLD THE
              INTEREST OF JUSTICE WHEN IT VIOLATED
              PETITIONER'S CONSTITUTIONAL RIGHT TO
              SELF-REPRESENTATION ON HIS MOTION FOR A
              REDUCTION OR CHANGE OF SENTENCE,
              THEREFORE THIS MATTER MUST BE REVERSED
              AND REMANDED.

        We have considered defendant's arguments in light of the record and the

applicable law. We are convinced defendant's arguments lack sufficient merit

to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we add

the following comments.

        Defendant filed a motion pursuant to Rule 3:21-10 for the reduction of his

sentence. Rule 3:21-10(a) provides in pertinent part that such a motion must be

filed within sixty days after the date of the JOC, and the court may on motion,

or its own initiative, change or reduce a sentence by order filed within seventy -

five days after the date of the JOC.

        Rule 3:21-10(b) provides, however, that an order may be entered at any

time:

              (1) 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; or

              (2) amending a custodial sentence to permit the release
              of a defendant because of illness or infirmity of the
              defendant; or

                                                                          A-2735-18T4
                                         7
            (3) changing a sentence for good cause shown upon the
            joint application of the defendant and [the] prosecuting
            attorney; or

            (4) changing a sentence not authorized by law including
            the Code of Criminal Justice; or

            (5) correcting a sentence not authorized by law
            including the Code of Criminal Justice; or

            (6) changing a custodial sentence to permit entry into
            the Intensive Supervision Program; or

            (7) changing or reducing a sentence when a prior
            conviction has been reversed on appeal or vacated by
            collateral attack.

      As we have explained, defendant filed a motion seeking relief under Rule

3:21-10(b)(3). He asserted that he had established "good cause" for a reduction

of his sentence. As defendant acknowledged, however, the prosecuting attorney

did not join in his motion. The trial court correctly found that, under the

circumstances, it did not have authority under Rule 3:21-10(b)(3) to grant

defendant the relief he was seeking.

      We note that while defendant asserted in his motion that he wanted to

enter a SUD at one of the State's correctional facilities, defendant did not seek

relief under Rule 3:21-10(b)(1). In any event, in his motion, defendant did not

establish that he qualified for admission to the SUD, or that a change in his

sentence would necessarily gain him admission to the program.

                                                                         A-2735-18T4
                                       8
      Defendant argues, however, that the trial court's decision in this matter

was based on a motion of another defendant. In his opinion, the judge included

several paragraphs, which apparently were taken inadvertently from a decision

on another motion. In all other respects, the judge accurately summarized and

addressed defendant's arguments.

      We are convinced that the judge may have erred by incorporating

comments about another motion in his opinion, but this error had no effect on

the judge's ruling on defendant's motion. The judge's decision denying

defendant's motion for a change of his sentence is supported by the record and

consistent with the plain language of Rule 3:21-10(b)(3).

      Affirmed.




                                                                       A-2735-18T4
                                       9
