Opinion
DOCKET NO. A-2793-13T1
12-22-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WILLIAM R. JOE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Carol M. Henderson, Assistant Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Currier. On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 10-08-00254. Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Carol M. Henderson, Assistant Attorney General, of counsel and on the brief). PER CURIAM
Defendant's appeal of an order denying jail credits was placed on our July 1, 2014 Excessive Sentencing Oral Argument (ESOA) calendar, meaning the court was presented only with counsel's oral argument without written briefs. The panel agreed with defendant's arguments and remanded for an award of jail credits.
The State filed a petition for certification, which the Supreme Court granted and sua sponte "summarily remanded" to this court "for reconsideration on the plenary calendar." 220 N.J. 267 (2015). The Court did not retain jurisdiction. Ibid. We invited the parties to file briefs, which were submitted and have been considered. Neither party requested oral argument.
The record reveals that defendant was indicted on drug offenses in Warren County on August 4, 2010. When he failed to appear for an arraignment, a bench warrant was issued. On May 29, 2011, defendant was arrested in Pennsylvania on alleged Pennsylvania offenses but not long detained. On June 27, 2011, defendant was arrested in Albany, New York, for offenses occurring in New York, and was incarcerated. On August 12, 2011, the Warren County Prosecutor's Office lodged a detainer with New York officials.
Defendant remained incarcerated in New York until he pleaded guilty to a weapons offense; on February 7, 2012, he was sentenced to a three-year New York prison term. On September 7, 2012, defendant was sentenced in Pennsylvania to a prison term ranging between twenty and forty months for aggravated assault.
At some point in 2013, New Jersey law enforcement officials obtained custody of defendant, pursuant to the Interstate Agreement on Detainers, N.J.S.A. 2A:159A-1 to -15, in order to prosecute the 2010 indictment in this matter. On August 13, 2013, defendant pleaded guilty to two third-degree drug offenses; at the same time, the judge denied defendant's motion for jail credits for time served in New York between the date of his arrest in New York and the date of sentencing there. On September 4, 2013, another judge granted the State's motion for the imposition of an extended term and imposed two five-year concurrent prison terms subject to a twenty-one-month period of parole ineligibility; the sentences were also ordered to run concurrently with any other prison term being served in other jurisdictions. Defendant appealed.
As noted, the appeal was placed on an ESOA calendar. Defendant argued he was entitled to jail credit from the date (August 12, 2011) the New Jersey detainer was lodged with New York officials until the date (February 7, 2012) defendant was sentenced in New York. After hearing argument, and in expressly relying on State v. Hernandez, 208 N.J. 24 (2011), and State v. Rippy, 431 N.J. Super. 338 (App. Div. 2013), certif. denied, 217 N.J. 284 (2014), we determined that defendant was entitled to the jail credit sought; we remanded the matter to the trial court for that purpose but otherwise affirmed the sentence. Pursuant to the Supreme Court's mandate, 220 N.J. 267, we now reconsider that determination.
Rule 3:21-8 provides that "[t]he 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." When the rule applies, the credit is mandatory, not discretionary. State v. Grate, 311 N.J. Super. 544, 548 n.3 (Law Div. 1997), aff'd, 311 N.J. Super. 456, 459 (App. Div. 1998). Jail credit was "conceived as a matter of equal protection or fundamental fairness" to avoid "the double punishment that would [otherwise] result." Rippy, supra, 431 N.J. Super. at 347 (quoting Hernandez, supra, 208 N.J. at 36). Jail credit also serves to create equality in sentencing; in its absence, a defendant with means to post bail would serve less time in total than a similarly-situated defendant unable to post bail and left incarcerated while awaiting disposition of the charged offenses. State v. Rawls, 219 N.J. 185, 193 (2014).
Jail credits are "day-for-day credits" to compensate for time spent in custody between arrest and sentencing, R. 3:21-8; Hernandez, supra, 208 N.J. at 37, and are applied to the "front end" of a sentence, ibid. (citing Booker v. N.J. State Parole Bd., 136 N.J. 257, 263 (1994)). They reduce a defendant's overall sentence, as well as any parole ineligibility term. Hernandez, supra, 208 N.J. at 37.
In Hernandez, the Court considered how jail credits for time spent in pre-sentence custody in one New Jersey county should be applied to charges pending in two different New Jersey counties. 208 N.J. at 45. Hernandez was arrested in Passaic County in connection with a series of armed robberies. Id. at 28-29. While incarcerated in Passaic awaiting disposition of the Passaic charges, she was indicted on other charges in Ocean County. Id. at 29. Hernandez was first sentenced in Ocean, and jail credits for her time spent in pre-sentence custody in Passaic were applied to reduce her sentence for the Ocean County crimes. Ibid. When she was later sentenced in Passaic on the Passaic offenses, the sentencing judge rejected Hernandez's argument that the jail credits for time spent incarcerated in Passaic could be applied to the Passaic sentence, as they had already been applied to the Ocean sentence. Id. at 30. In Hernandez, the Supreme Court interpreted Rule 3:21-8 to permit jail credits for multiple charges so long as those charges were pending during the defendant's pre-sentence incarceration. 208 N.J. at 47-49. The Court held that a defendant confined prior to sentencing on multiple charges is entitled to "credits against all sentences for any time served in custody in jail . . . between arrest and the imposition of sentence on each case." Id. at 28 (emphasis added); see also Rippy, supra, 431 N.J. Super. at 348. Thus, Hernandez was found entitled to credit for the time spent in custody in Passaic on both the Passaic and Ocean sentences. 208 N.J. at 47. In reaching this conclusion, the Hernandez Court relied upon important policy objectives, including the elimination of inconsistencies in sentencing, by ensuring that "the real time a defendant is to serve in custody" does not turn on "which case a prosecutor or court decides to move first," whether charges are embodied in a single indictment or multiple indictments, or other factors subject to a court or prosecutor's discretion. Id. at 47-48. The Court also instructed that Rule 3:21-8 "should be liberally construed." Id. at 36 (quoting State v. Beatty, 128 N.J. Super. 488, 491 (App. Div. 1974)).
Prior to Hernandez, jail credit was understood to be applicable only to "confinement directly attributable to the particular offense giving rise to the initial incarceration." See, e.g., In re Hinsinger, 180 N.J. Super. 491, 499-500 (App. Div.), certif. denied, 88 N.J. 494 (1981).
Since Hernandez, we have rigorously adhered to that liberal approach. For example, in State v. DiAngelo, 434 N.J. Super. 443, 461 (App. Div. 2014), we held that a statement of charges issued for a violation of probation (VOP) to a defendant already held in custody, vests in a defendant the right to jail credits against both the VOP sentence as well as against the sentence for the new offense. The same holds true when a defendant is resentenced after a violation of the Intensive Supervision Program. State v. Adams, 436 N.J. Super. 106, 115 (App Div.), certif. denied, 220 N.J. 101 (2014). And in Rippy, we concluded that a defendant was entitled to jail credit for a period of confinement beginning with the reversal of a conviction regarding his first sentence and ending on the day before defendant was sentenced on four other indictments, which were previously pending disposition. 431 N.J. Super. at 354-55.
None of the above cited cases nor the Rule itself address the specific question presented here: whether a defendant is entitled to jail credit for pre-sentence time in custody in another state while under indictment in New Jersey. As we have mentioned, defendant seeks jail credit from the date New Jersey lodged a detainer in New York up until the date of sentencing in New York. If defendant had been incarcerated in New Jersey, as opposed to New York, Hernandez's application would have required the award we previously granted. We find the factual distinctions between this circumstance and the facts in Hernandez to be immaterial.
Although Hernandez does not precisely address the situation presented here, the State has failed to present a principled reason for reaching a different conclusion. The State's reliance on State v. Hemphill, 391 N.J. Super. 67 (App. Div.), certif. denied, 192 N.J. 68 (2007), and Beatty, supra, 128 N.J. Super. 488, is misplaced, as those cases not only preceded Hernandez, but also because they did not involve the effect of multistate charges that is implicated here.
The State relies on State v. Carreker, 172 N.J. 100, 111 (2002), but that reliance is also misplaced. Carreker concerned gap-time credit, which unlike jail credit is a creature of statute, N.J.S.A. 2C:44-5(b)(2). --------
The State also urges that we limit Hernandez to the factual scenario presented in that case. We reject this not only because the Court did not suggest such a limitation in its opinion, but also because the Court in its later Rawls decision recognized Hernandez's broad reach. In Rawls, the Court held that a defendant released on bail on one indictment, but subsequently incarcerated on a later indictment, is entitled to jail credit against the sentence imposed in the first matter. Rawls, supra, 219 N.J. at 187. In so holding, the Rawls Court did not confine Hernandez to its facts, as the State urges should occur here. To the contrary, the Court reaffirmed that an award of jail credits should not be withheld simply because of some convoluted factual "happenstance" and concluded that, "[a]lthough the underlying facts of the instant case differ from the Hernandez defendants, we did not limit the Hernandez decision to its facts." Id. at 197.
We are bound to follow Hernandez and Rawls, which both compel our decision to award defendant the jail credits in question. There is nothing about those decisions that would suggest a denial of jail credit because the multiple indictments here were pending in different states instead of different state counties.
Accordingly, as required by the Court's remand, we have reconsidered but find no reason to modify or amend our prior judgment in this appeal. The trial court is directed to forthwith enter an amended judgment of conviction in conformity with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION