Opinion
DOCKET NO. A-3808-14T1
07-29-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAVID M. CLARK, Defendant-Appellant.
Jason A. Coe, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Coe, of counsel and on the brief). Alexis R. Agre, Assistant Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Agre, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano, Simonelli and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 13-01-0090. Jason A. Coe, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Coe, of counsel and on the brief). Alexis R. Agre, Assistant Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Agre, of counsel and on the brief). PER CURIAM
This appeal was originally listed on our Excessive Sentence Oral Argument calendar. After being advised of the issue presented, we ordered the parties to file briefs, subsequently listed the appeal on our plenary calendar and considered further oral argument. The facts are not disputed, and the appeal presents a purely legal question as to whether defendant is entitled to jail credits pursuant to Rule 3:21-8.
Defendant David M. Clark was charged in a series of complaint-warrants issued by the New Jersey State Police (NJSP) on August 5, 2011, with sexual crimes committed against two juvenile victims alleged to have occurred between 2004 and 2011. On October 27, 2011, federal law enforcement authorities filed criminal charges against defendant, he was arrested on November 1, and consented to an order of pre-trial detention on November 2, 2011. With brief exceptions as set forth below, defendant has remained in federal custody ever since.
The federal criminal complaint(s) are not in the record, but defendant contends and the State seemingly does not dispute, that the conduct charged in the federal complaint(s) included at least some of the same allegations in the complaint-warrants issued by the NJSP.
On January 29, 2013, the Burlington County grand jury returned Indictment No. 13-01-0090 (the indictment), charging defendant with fifty-three counts of various sexual offenses which ostensibly included some of the same conduct that was the subject of the federal charges. On March 12, 2013, the Law Division issued a bench warrant, which the parties agree acted as a detainer. Over the ensuing months, defendant appeared in the Law Division through the issuance of writs that were honored by the federal authorities.
On October 28, 2013, defendant waived his right to indictment and pled guilty in federal court to three counts of manufacturing child pornography, 18 U.S.C.A. § 2251(a). On November 12, 2013, defendant pled guilty in the Law Division to three counts of the indictment.
On April 14, 2014, the federal judge sentenced defendant to a 360-month term of imprisonment. On November 2, 2014, defendant was remanded to the Burlington County Jail pursuant to the Interstate Agreement on Detainers (IAD), and the State acknowledges that defendant remained in county custody thereafter until his sentencing in the Law Division on February 27, 2015.
In accordance with defendant's plea agreement, at sentencing, the Law Division judge imposed an aggregate thirty-year term of imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, concurrent but not coterminous with defendant's federal sentence. Defense counsel argued that defendant was entitled to gap-time credit from the date of his federal sentencing to the date of his state court sentencing. He also argued that defendant was entitled to jail credits from his original sentencing date, February 14 "or shortly thereafter," "due to the difficulty of getting him over here from the federal prison."
It is unclear from the transcript whether defense counsel was arguing that defendant was entitled to jail credits from February 14, 2014, although that date would seem to be consistent with an initial sentencing date following defendant's November 2013 guilty plea.
The Law Division judge rejected the arguments regarding jail and gap-time credits, indicating defendant was not entitled to any under current law. She gave defense counsel an opportunity to brief the issue, but the record does not indicate that defendant availed himself of the judge's offer. The judgment of conviction (JOC) awarded no jail or gap-time credits to defendant. This appeal followed.
Recognizing that no reported decision has addressed the precise issue, defendant argues in a single point that he is entitled to 895 days of jail credit, i.e., from November 1, 2011, when he was arrested by federal authorities, until April 14, 2014, when he was sentenced by the federal district court. The State counters by arguing that the Court's decision in Carreker, supra, 172 N.J. at 111, and our decision in State v. Perry, 430 N.J. Super. 419 (App. Div.), certif. denied, 216 N.J. 366 (2013), are dispositive, and defendant is not entitled to any jail credits. The State alternatively argues that defendant should only be awarded jail credits from November 2, 2014 — when he was remanded to the county jail pursuant to the IAD — to his sentence date, February 27, 2015.
Defendant concedes that, pursuant to State v. Carreker, 172 N.J. 100, 111 (2012), he is not entitled to gap-time credits for time spent in federal custody prior to the imposition of his New Jersey sentence.
A challenge to an award or denial of jail credits constitutes an appeal of a sentence "'not imposed in accordance with law.'" State v. Rippy, 431 N.J. Super. 338, 347 (App. Div. 2013) (quoting State v. Acevedo, 205 N.J. 40, 45 (2011)), certif. denied, 217 N.J. 284 (2014). Our review, therefore, is de novo. State v. DiAngelo, 434 N.J. Super. 443, 451 (App. Div. 2014).
In "spare and simple language," State v. Hernandez, 208 N.J. 24, 51 (2011) (Hoens, J., dissenting), Rule 3:21-8 provides: "[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." Id. at 36. "Jail credits were conceived as a matter of equal protection or fundamental fairness and a means of avoiding the double punishment that would result if no such credits were granted." Ibid. "The determination of a defendant's eligibility for jail credits, which in effect reduces the time to be served on a sentence, is governed by the Rule, as most recently interpreted by the Court in Hernandez." DiAngelo, supra, 434 N.J. Super. at 451.
Prior to the Court's decision in Hernandez, it was well-settled that a defendant was only entitled to jail credits "'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)). Hernandez effected a sea change by concluding that, a defendant earns "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." State v. Rawls, 219 N.J. 185, 194 (2014) (quoting Hernandez, supra, 208 N.J. at 28). Jail credits are earned on all sentences until the first sentence is imposed. Hernandez, supra, 208 N.J. at 47. "[O]nce the first sentence is imposed, a defendant awaiting imposition of another sentence accrues no more jail credit under Rule 3:21-8." Id. at 50.
Hernandez involved appeals filed by two defendants. As to Hernandez, the charges emanated from two different counties. Id. at 28-31. As to the second defendant, Rose, the issue involved multiple sentences emanating from multiple charges in one county. Id. at 31-33.
The Hernandez Court, however, distinguished the facts before it from those presented in Black and Carreker. In Black, the defendant failed to report to parole, a violation issued and he was indicted for absconding. Black, supra, 153 N.J. at 441- 42. When returned to custody, his parole was revoked, and he was ordered to serve the balance of his original sentence and given jail credits for the time spent in custody on the parole violation. Id. at 442. He was denied the same credits against the sentence imposed on his guilty plea to absconding. Ibid. The Court reasoned, "[a]ny period of confinement following the revocation of parole but before sentencing on the new offense also should be credited only against the original sentence[.]" Id. at 461.
In Carreker, the Court considered whether the defendant serving a custodial sentence in New York and brought to New Jersey via the IAD, was entitled to jail credits "for the time spent in [New Jersey] awaiting disposition of the New Jersey offense[.]" Carreker, supra, 172 N.J. at 115. Citing its earlier decision in Black, the Court held the "defendant's presentence confinement in [New Jersey] was attributable not to a New Jersey offense, but to the fact that, under N.J.S.A. 2A:159A-5(f) of the IAD, she was required to continue her term of incarceration under her New York sentence. Under that circumstance, New Jersey jail credit does not apply." Ibid.
The Hernandez Court noted that the defendants in Black and Carreker were both serving custodial sentences and therefore "were not entitled to presentence jail credits against a new sentence for time served in custody while those new charges were pending." Hernandez, supra, 208 N.J. at 44. Unlike those defendants, the defendants in Hernandez were "not seeking jail credits for time accrued after imposition of a custodial sentence." Id. at 45 (emphasis added). As the Court explained, "[w]e have not previously addressed these circumstances or the meaning of Rule 3:21-8 when a defendant who is incarcerated awaiting disposition on charges is also held awaiting disposition on other charges." Ibid.
Hernandez has spawned questions of Rule 3:21-8's application to a seemingly limitless array of factual permutations. Defendant concedes that pursuant to Hernandez, he is not entitled to jail credits after the date of his federal sentence. Id. at 44; accord State v. Adams, 436 N.J. Super. 106, 115 (App. Div.) (finding that "a defendant who is serving another custodial sentence is not entitled to relief . . . because jail credits do not accrue while a defendant is serving a sentence"), certif. denied, 220 N.J. 101 (2014).
Rather, relying on our prior decision in State v. Hemphill, 391 N.J. Super. 67 (App. Div.), certif. denied, 192 N.J. 68 (2007), defendant argues that he was entitled to jail credits for time spent in "pre-adjudication custody in . . . federal custody," and that "the jail credit clock commence[d]" when he was arrested by federal authorities. DiAngelo, supra, 434 N.J. Super. at 461. We agree in part.
In Hemphill, the defendant pled guilty to charges in New Jersey but fled before sentencing. Hemphill, supra, 391 N.J. Super. at 69. Eventually, he was arrested in Scotland on a warrant stemming from the New Jersey charges and confined in Scotland for approximately six months. Ibid. He was extradited to New Jersey and lodged in the county jail pending sentence. Ibid. The judge gave the defendant credit for the time spent in the county jail but denied any credit for the time spent in custody in Scotland. Id. at 69-70. Citing our prior decision in State v. Beatty, 128 N.J. Super. 488, 490-91 (App. Div. 1974), we held that "[a] defendant is entitled to credit for time spent in another state's penal institution as a result of a detainer filed by New Jersey authorities on the matter resulting in the sentence." Id. at 71.
Hemphill limited its holding to circumstances where the "defendant [was] not being held on other charges." Ibid. That limitation, however, was seemingly swept away by Hernandez. "[A]s 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." Rawls, supra, 219 N.J. at 194.
The State's reliance on Perry is misplaced. There we held that the defendant, serving a sentence in Pennsylvania for a parole violation, was not entitled to jail credits for time spent in custody in New Jersey following his transfer under the IAD. Perry, supra, 430 N.J. Super. at 427 (citing Carreker, supra, 172 N.J. at 111; State v. Hugley, 198 N.J. Super. 152, 161 (App. Div. 1985)). As already noted, in this case, defendant acknowledges he is not entitled to jail credits after the date of his federal sentence. We therefore agree with defendant that he was entitled to jail credits for some period of time, even though he was in federal and not state custody.
However, we disagree with defendant that he began earning jail credits when he was arrested by federal authorities on November 1, 2011. A defendant only earns jail credits for that period of time when he is "in custody . . . between [his] arrest and the imposition of [his] sentence." R. 3:21-8.
In DiAngelo, we considered whether a defendant who was serving a probationary sentence when arrested on new charges was entitled to jail credits against a custodial sentence imposed for her violation of probation (VOP) for the time spent in presentence custody on the new charges. DiAngelo, supra, 434 N.J. Super. at 451. We concluded a sentence imposed on a VOP is not a continuation of the original sentence, thereby distinguishing the circumstances from the Court's holding in Black. Id. at 456-57. As a result, the defendant was entitled to "jail credit for pre-adjudication confinement" under Rule 3:21-8. Id. at 458.
We then considered whether the defendant was "in custody" on the VOP charges, since she had never been arrested and no detainer had been lodged against her on the VOP. Ibid. We concluded that consistent with the policy reasons expressed in Hernandez,
when a VOP statement of charges for a commission of a first, second, third or fourth degree offense is served on a confined defendant, the statement of charges serves as the substantial equivalent of an arrest as used in Rule 3:21-8. The serving of the statement of charges to a defendant who is confined triggers the award of jail credits for the period of pre-adjudication confinement against the VOP sentence and the sentence for the new offense.We rejected, however, the defendant's assertion that she was entitled to jail credits on her VOP sentence from the time she was arrested on the new charges stating, "[w]e cannot sanction the award of jail credit prior to the filing of the VOP charges." Id. at 462.
[Id. at 461.]
In several unreported decisions, our colleagues have confined DiAngelo's holding to situations wherein the defendant was already in custody on new charges and did not extend it to situations where defendant was at liberty when the VOP was filed. Compare State v. Ransom, No. A-0689-12 (App. Div. July 31, 2014) (slip op. at 9); State v. Bell, No. A-0233-12 (App. Div. July 28, 2014) (slip op. at 7), with State v. Mercuri, No. A-3609-11 (App. Div. June 10) (slip op. at 7-8) (the defendant was not entitled to jail credits from the date VOP charges were filed because he remained at liberty and jail credits accrued only after defendant was taken into custody on new charges), certif. denied, 220 N.J. 100 (2014).
Similarly in this case, we reject defendant's argument that he was entitled to jail credits from November 1, 2011, the date he was arrested by federal authorities. As we have said in construing Hernandez,
[a] defendant is entitled to jail credits on all cases for all days of confinement after his arrest in that case and prior to imposition of the first sentence, and that is so even if a subsequent period of confinement is on an arrest for a new charge and regardless of matters of happenstance within the prosecutor's control—such as whether bail on one or more of the prior charges has been revoked.As of November 1, 2011, defendant was not accruing jail credits because he was not in custody "between [his] arrest and the imposition of [his] sentence." R. 3:21-8.
[Rippy, supra, 431 N.J. Super. at 348 (emphasis added).]
We also reject the notion that the issuance of the NJSP complaint-warrants in August 2011 commenced defendant's jail credit accrual clock so that he was entitled to credits as of his federal arrest date because the state charges were outstanding. To the extent our colleagues in DiAngelo concluded the issuance of VOP charges, without more, was sufficient, we must respectfully disagree. Simply put, in August and November 2011, defendant was not in custody on these charges within the meaning of Rule 3:21-8 as construed by Hernandez.
However, after the State issued a bench warrant that it concedes served as a detainer, defendant was in custody on these charges for purposes of the Rule. Indeed, the State exercised custody of defendant by securing his appearance in the Law Division pursuant to writs to produce. See State v. Baker, 198 N.J. 189, 192-93 (2009) (describing the process of producing a federal prisoner before a state court by use of such writs). Contrary to the State's argument, it did not first exercise custody over defendant on these charges on November 2, 2014, when defendant was lodged in the county jail pursuant to the IAD, but rather on March 12, 2013, when the State first issued its bench warrant and thereafter exercised temporary custody of defendant on several occasions.
Although not presenting identical facts, in an unpublished opinion, a panel of our colleagues held that a defendant was entitled to jail credits from the date a New Jersey detainer was lodged against him until the date the defendant was sentenced in New York on New York charges. State v. Joe, No. A-2793-13 (App. Div. Dec. 22, 2015) (slip op. at 8-9). The Court recently granted certification in that case. State v. Joe, 224 N.J. 526 (2016). --------
We therefore conclude that defendant was entitled to jail credits from March 12, 2013, through April 14, 2014. We reverse and remand the matter to the Law Division for entry of an amended JOC. 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