Opinion
DOCKET NO. A-1042-13T1
06-16-2015
JAMES ELLERBE, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
James Ellerbe, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Rothstadt. On appeal from the New Jersey Department of Corrections. James Ellerbe, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief). PER CURIAM
Appellant, James Ellerbe, is an inmate at Bayside State Prison. He appeals from an October 1, 2013 decision of respondent, New Jersey Department of Corrections (DOC), refusing to adjust his jail credits and its failure to respond to his administrative appeal of that determination. On appeal he specifically argues the DOC "erred by refusing [to] apply the full amount of 310 days jail credits, and by its refusal to respond to part five (5) of the inmate remedy form (the appeal)." In response, the DOC argues its decision should be affirmed because appellant is "mistaken" as the DOC's "calculation of [appellant]'s sentence . . . includes all jail credits to which he is entitled."
We have considered the parties' arguments in light of our careful review of the record and the applicable legal principles. We affirm.
We begin with a review of appellant's convictions and the jail credit he received for each. Under Indictment 90-09-4375, appellant was convicted of first-degree robbery, N.J.S.A. 2C:15-1; murder, N.J.S.A. 2C:11-3(a)(1) and (3); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); and second-and third-degree weapons charges, N.J.S.A. 2C:39-4(a) and N.J.S.A. 2C:39-5. On January 4, 1991, the court sentenced appellant to an aggregate term of thirty-years with a thirty year period of parole ineligibility and awarded 157 days jail credit, for the period he spent in jail from August 1, 1990, to sentencing on January 4, 1991.
On October 3, 1991, appellant entered guilty pleas pursuant to a plea agreement to resolve the charges in three indictments that were pending prior to his trial and was sentenced on all three indictments on November 15, 1991 as follows:
Indictment No. 1359-3-90. Appellant pled guilty to one count of third-degree receiving stolen property, N.J.S.A. 2C:20-7, and was sentenced to a concurrent term of five years. The court awarded four days jail credit for the period he was incarcerated on this indictment, from March 4 to 8, 1990.
Indictment No. 942-2-90. Appellant pled guilty to one count of third-degree theft, N.J.S.A. 2C:20-3(a), and was sentenced to a five-year term to be consecutive to the sentence on Indictment No. 1359-3-90 and concurrent to the sentence he was serving. No jail credits were awarded.
Indictment No 5312-11-90. Appellant pled guilty to one count of receiving stolen property, N.J.S.A. 2C:20-7 and was sentenced to a term of three years that was concurrent to all other sentences imposed. The court awarded 306 days jail credits for the period from January 14 to November 15, 1991.
We glean from the record appellant was originally arrested on March 10, 1989, on Indictment 1359-3-90 but was immediately released. He was then arrested on Indictment 942-2-90 on August 16, 1989 and again released. On March 4, 1990, he was arrested on Indictment 5312-11-90. Evidently, his bail on Indictment 1359-3-90 was revoked and he was incarcerated from that day until March 8, 1990. He remained on bail until August 1, 1990 when he was arrested on Indictment 90-09-4375. He remained incarcerated through sentencing on January 4, 1991.
The DOC's records accurately reflect the jail credits awarded by the court. Specifically, page one of appellant's "Face Sheet Report" states he is to receive 157 days of jail credits for his January 4, 1991 sentence and, on page two, 310 days for his November 15, 1991 sentences.
On September 23, 2013, appellant filed his Inmate Remedy assistance form asking the DOC to "adjust [his] files and facesheet to reflect" he was entitled to "more than 157 days jail credits." In its October 1, 2013 response, the DOC stated "157 jail credits applied. Face Sheet enclosed."
Appellant claimed he then filed an administrative appeal in which he stated, "The Court granted me an aggregate of 310 days Jail Credits. The Face Sheet is short by 153 days. Please review the information forwarded previously and remedy this matter." When he received no response to his request, he filed this appeal.
Our review of an agency decision is limited. Ordinarily, an appellate court will reverse the decision of the administrative agency only if it is "'arbitrary, capricious, or unreasonable, or [] not supported by substantial credible evidence in the record as a whole.'" Barrick v. State, 218 N.J. 247, 259 (2014) (alteration in original) (quoting In re Stallworth, 208 N.J. 182, 194 (2011)); see also Szemple v. Dep't of Corr., 384 N.J. Super. 245, 248 (App. Div.), certif. denied, 187 N.J. 82 (2006). "Our role is to engage in a careful and principled consideration of the agency record and findings." DeCamp v. New Jersey Dept. of Corrections, 386 N.J. Super. 631, 636 (App. Div. 2006)(citation and internal quotation marks omitted). However, "[w]e cannot substitute our judgment for that of the agency where its findings are supported by substantial credible evidence in the record." Johnson v. Dep't of Corr., 375 N.J. Super. 347, 352 (App. Div. 2005) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)); Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005). "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006).
We first address the DOC's contention that the appeal here is from an agency determination that is not final. Generally, we only review final agency determinations, unless leave is otherwise granted. R. 2:2-3(a)(2). Appellant contends he sought an administrative appeal of the DOC's initial response to his request for adjustment of his jail credits. The DOC states that it never received that appeal, although part four of the DOC's "Inmate Remedy Form," included in both parties' appendices, bear appellant's signature in the area provided for requesting an appeal. However, because we agree with the DOC's determination that appellant received all of his jail credits, we perceive no value to remanding this matter for further consideration.
On May 5, 2014, we entered an order denying the DOC's motion to dismiss this appeal, which it filed on the ground it was not filed from a final agency determination.
In the DOC's explanation of its position, it claims that appellant is entitled to 157 days of jail credit for the murder offense for which his incarceration was attributable. According to the DOC, pursuant to N.J.S.A. 2C:44-5(e)(1), appellant's November 1991 sentences merged into his January 1991 sentence. It then explains once the shorter sentences from November 1991 were "absorbed" into the thirty-year sentence imposed in January 1991, "the [DOC] properly applied all jail credits awarded to [appellant] on each of his sentences."
The statute provides:
e. Calculation of concurrent and consecutive terms of imprisonment.
(1) When terms of imprisonment run concurrently, the shorter terms merge in and are satisfied by discharge of the longest term.
[N.J.S.A. 2C:44-5(e)(1).]
Although somewhat circular, we understand the DOC's explanation to comport with the Supreme Court's understanding of jail credits. As the Court explained:
Jail credits are "day-for-day credits," Buncie v. Dep't of Corr., 382 N.J. Super. 214, 217 (App. Div. 2005), certif. denied, 186 N.J. 606 (2006), that are applied to the "front end" of a defendant's sentence, meaning that he or she is entitled to credit against the sentence for every day defendant was held in custody for that offense prior to sentencing. See Booker [ v. N.J. State Parole Bd.,] 136 N.J. [257,] 263, 265 [(1994)]. The practical effect of that allocation is that jail credits will "reduce a[] [parole] ineligibility term as well as the sentence imposed." State v. Mastapeter, 290 N.J. Super. 56, 64 (App. Div.), certif. denied, 146 N.J. 569 (1996).See also R. 3:21-8 ("The defendant shall receive credit on the term of a custodial sentence for any time served in custody in jail or in a state hospital between arrest and the imposition of sentence.").
[State v. Hernandez, 208 N.J. 24, 37 (2011) (fourth and fifth alterations in original).]
Prior to the Court's decision in Hernandez, the allocation of jail credits to multiple offenses was limited. After Hernandez, the Court broadened its application in State v. Rawls, 219 N.J. 185 (2014), and held "a defendant who is released on bail on one indictment, but subsequently incarcerated on a later indictment, is entitled to jail credit against the former indictment under Rule 3:21-8 (Credit for Confinement Pending Sentence)." Id. at 187. The Court explained,
[b]efore Hernandez, supra, New Jersey courts interpreted Rule 3:21-8 "to allow jail credits only for 'such confinement as is attributable to the arrest or other detention resulting from the particular offense.'" [Hernandez, supra, 208 N.J.] at 36 (quoting State v. Black, 153 N.J. 438, 456 (1998) (internal quotations and citation omitted)).
In other words, if a defendant were detained pre-sentence for multiple offenses, he or she would only be entitled to jail credit toward one of them, namely, the offense to which his or her incarceration was "directly attributable." See, e.g., [State v.] Carreker, 172 N.J. [100,] 115 [(2002)] ("Generally [jail credit] applies to confinement attributable to the offense that gave rise to the sentence."); Black, supra, 153 N.J. at 456-57 ("New Jersey courts have adopted a negative view of [giving an inmate jail credit against more than one sentence]."); [State v. ]Hemphill, [] 391 N.J. Super. [67,] 70 [(2007)]("The credit is only permissible for a period of incarceration attributable to the crime for which the sentence is imposed."); State v. Hill, 208 N.J. Super. 492, 495 (App. Div.) ("[Rule 3:21-8] only applies to confinement directly attributable to the particular offense giving rise to the initial incarceration."), certif. denied, 104 N.J. 412 (1986). Pre-Hernandez courts held, however, that judges could award jail credit toward more than one sentence in the interests of "fairness, justice, and fair dealings." Hernandez, supra, 208 N.J. at 37 (citing Hemphill, supra, 391 N.J. Super. at 70).
The Hernandez Court held that a defendant is entitled to "credits against all sentences 'for any time served in custody in jail or in a state hospital between arrest and the imposition of sentence' on each case." Id. at 28 (emphasis added) (quoting R. 3:21-8). Therefore, as interpreted by Hernandez, Rule 3:21-8 requires that a defendant receive jail credit even though the charges are not directly responsible for his or her incarceration.
. . . .
This Court's decision in Hernandez rejected the idea that jail credit should depend on immaterial factors like whether charges are consolidated in a single indictment, the order in which multiple indictments are tried, or, significantly, whether bail is revoked. [Hernandez, supra, 208 N.J .] at 47-48. It also clarified that because jail credit has always applied toward the aggregate sentence of an indictment, Hernandez "essentially impacts only cases involving defendants sentenced to custodial terms on multiple indictments." Id. at 4 8 n. 19. In addition, in footnote twenty of its opinion, the Court posited the following hypothetical:
Under the State's interpretation of the rule, and one which flows from the principle that a defendant should receive credits only against a sentence for which the incarceration was "directly attributable," assume a defendant . . . is "bailed out" or released on the first arrest after two days, and the second after [ten] days, and then is arrested again and remains in custody for six months before disposition by plea. If he pleads to the first crime
and the others are dismissed, he would be entitled to two days credit if bail is not revoked, notwithstanding negotiations to dispose of all charges.
[Id. at 48 n.20]
In other words, under the "directly attributable" approach, if the charges to which jail credits are applied happen to be the charges that are dismissed as part of a plea agreement, then the defendant would not receive any credit for the time he spent in pre-sentence custody.
[Id. at 193-94, 196-97(sixth, seventh, eleventh and thirteenth alterations in original).]
The Court gave its decision in Hernandez "pipeline" retroactive application. Therefore, because defendant is not entitled to pipeline retroactivity, he is only entitled to the 157 days of jail credit attributable to his murder conviction and sentence because this was the offense to which his initial incarceration was attributable.
The Hernandez Court expressly recognized that its ruling "may be deemed inconsistent with a prior interpretation of Rule 3:21-8," and that "negotiated pleas and sentences in the 'pipeline' were possibly based on a different understanding of the Rule." Hernandez, supra, 208 N.J. at 50-51. The Court therefore provided that its decision would have prospective application, with only limited pipeline retroactivity for "those matters still on direct appeal in which the amount of jail credits was actually questioned or challenged by defendant at sentencing." Id. at 51; see also State v. Natale, 184 N.J. 458, 492-496 (2005). Pipeline retroactivity allows the court's holding to be applied "to defendants with cases on direct appeal as of the date of [the] decision and to those defendants who raised [the issue] at trial or on direct appeal." Natale, supra, 184 N.J. at 494. Here, defendant was sentenced in 1991. Accordingly, his application for additional jail credits is not entitled to pipeline retroactivity, and he is thus unable to avail himself of Hernandez's more expansive interpretation of Rule 3:21-8.
--------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION