Opinion
DOCKET NO. A-2733-13T1
02-23-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALFATIR JONES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Higbee. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-06-2781. Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, 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 Alfatir Jones appeals from the October 21, 2013 Law Division order denying his petition for post-conviction relief (PCR). He presents three arguments for our consideration:
POINT ONE.
THE FAILURE OF THE DEFENDANT'S TRIAL ATTORNEY TO VIGOROUSLY ARGUE AT SENTENCING FOR THE APPLICATION OF JAIL CREDITS DEPRIVED THE DEFENDANT OF CONSTITUTIONALLY ADEQUATE LEGAL REPRESENTATION.
POINT TWO.
THE DEFENDANT'S APPELLATE COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE WHERE HE DID NOT RAISE ON THE DEFENDANT'S DIRECT APPEAL THE ARGUMENT THAT THE JAIL CREDIT[S] WERE MANDATORY.
POINT THREE.
AT THE TIME OF SENTENCING, JAIL CREDITS APPEARED WARRANTED BASED [ON] CONSIDERATIONS OF FAIRNESS, JUSTICE AND FAIR DEALINGS.
We agree that an attorney's failure to request discretionary jail credits establishes a prima facie case of ineffective assistance. Accordingly, we reverse and remand for an evidentiary hearing.
Defendant seeks jail credits to reduce his sentence for crimes committed in New Jersey for a period of incarceration in New York pending trial on crimes he committed there. These are the circumstances. On May 26, 1999, defendant pled guilty in the Law Division to second-degree reckless manslaughter, third-degree unlawful possession of a weapon, and third-degree hindering apprehension. In exchange, the State agreed to recommend an aggregate prison term of eight years with three years of parole ineligibility. The State also agreed to dismiss three other charges. Defendant remained on bail pending sentencing, scheduled for July 26, 1999. Defendant did not appear and the court issued a bench warrant for his arrest.
Less than a month later, New York authorities arrested defendant on criminal charges. He pled guilty on November 6, 2000, and two weeks later, on November 21, 2000, a New York judge sentenced him to serve ten years in a New York state prison.
On June 17, 2008, defendant was paroled in New York and transported to New Jersey for sentencing on the New Jersey offenses. On August 21, 2008, a Law Division judge sentenced defendant pursuant to his plea agreement to an eight-year prison term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2., for manslaughter; to a concurrent five-year prison term for the unlawful possession of a weapon offense; and to a concurrent five-year prison term for hindering apprehension. The sentencing judge stated: "[t]he jail credit as calculated is ninety days. The gap time is as agreed upon that he has acquired . . . due to the fact that he's served a sentence on another matter, before he served this sentence . . . ." The court awarded gap time from August 13, 1999 to June 17, 2008.
The jail credit of ninety days was awarded for the time defendant was incarcerated in New Jersey before his plea to the New Jersey charges, and for the time he was incarcerated between his parole in New York and his sentencing in New Jersey.
"Jail credits" are given for a defendant's pre-sentence incarceration. State v. Hernandez, 208 N.J. 24, 36 (2011). "Jail credits are day-for-day credits . . . applied to the 'front end, of 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." Id. at 37 (internal citations omitted). Gap-time credits "award[] a defendant who was given two separate sentences on two different dates credit toward the second sentence for the time spent in custody since he or she began serving the first sentence." Id. at 38. "Unlike jail credits, gap-time credits are applied to the 'back end' of a sentence." Ibid. (quoting Booker v. N.J. State Parole Bd., 136 N.J. 257, 260 (1994).
We affirmed defendant's sentencing following oral argument on an April 6, 2011 Excessive Sentence Oral Argument calendar. State v. Jones, No. A-2765-09 (App. Div., April 7, 2011). Eleven months later, defendant filed his PCR petition. A Law Division judge denied his petition without an evidentiary hearing.
The PCR judge first determined that the jail credits defendant sought for his pre-sentence incarceration in New York were discretionary, not mandatory, because jail credits in such cases are only mandated for a period of incarceration attributable to the crime for which a defendant is incarcerated. Although the PCR judge acknowledged defendant's claim that he was incarcerated in New York due to both a New Jersey detainer and the pending New York charges, defendant failed to produce competent evidence to support his claim that he would have posted bail in New York but for the New Jersey detainer. Defendant having failed to meet his burden on that issue, the PCR court addressed the discretionary award of such credits.
The PCR judge found that defense counsel's "failure to move for these discretionary credits cannot be considered below the standard of reasonable[ness]." The judge noted defense counsel had secured ninety days of jail credit and 3232 days of gap-time credit for defendant. The judge stated, "such credit was entirely discretionary and [defendant] clearly received a significant benefit at the time of sentence which indicates that counsel had been sufficiently competent in his representation of [defendant]." Noting that the calculation of appropriate credits "can be a difficult issue," the PCR judge concluded "failure to procure more discretionary credits cannot be considered an unreasonable action or inaction on the part of counsel." The judge further concluded, defendant had provided "absolutely no evidence to suggest that but for counsel's [not moving] for additional discretionary credits, [defendant] would have gone to trial, claimed innocence, or otherwise would have received a lighter sentence."
Having determined that trial counsel was not ineffective, the judge further concluded appellate counsel was not ineffective. Defendant appealed from the October 21, 2013 order memorializing the decision denying the petition.
Defendant contends on appeal that counsel's failure to forcefully argue for additional jail credits at defendant's sentencing rendered counsel's assistance ineffective. Defendant asserts his counsel should have argued for jail credits from the date defendant was arrested in New York, August 13, 1999, through the day before defendant was sentenced in New York, November 20, 2000. Defendant acknowledges the applicable law in 2008 required jail credits be applied to confinement attributable to detention resulting from the particular offense for which defendant was sentenced.
Defendant claims he was confined in New York both because he did not post bail on the New York offense and as the result of the New Jersey detainer. In his PCR petition, he asserts he would have posted bail but for the detainer. He thus reasons that the New Jersey detainer resulted in his continuing detention in New York before his trial there. Consequently, giving him jail credits against his New Jersey sentence was mandatory.
Defendant also argues his appellate counsel was ineffective for not raising the jail credit issue on appeal. Lastly, defendant argues, alternatively, that the sentencing court had discretion to apply the jail credits, and likely would have done so had the issue been properly presented.
Because defendant raises the issue of jail credits in the context of an ineffective-assistance-of-counsel claim, we review the principles concerning such claims. To prove ineffective-assistance-of-counsel, a defendant must satisfy the Strickland two-part test by demonstrating "counsel's performance was deficient," that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment;" and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord, State v. Fritz, 105 N.J. 42, 58 (1987). This standard applies as well to a claim of ineffective assistance of appellate counsel. State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008). When defendants establish a prima facie claim of ineffective-assistance-of-counsel, they are entitled to a hearing on their claims. State v. Preciose, 129 N.J. 451, 462 (1992); R. 3:22-10(b).
A defendant must establish by a preponderance of the credible evidence that he or she is entitled to the relief requested in the PCR petition. State v. Nash, 212 N.J. 518, 541 (2013). To sustain that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992). In other words, a defendant must do more than make bald assertions that he was denied effective assistance of counsel; he must allege specific facts sufficient to demonstrate counsel's alleged substandard performance. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
To prove the first element, a defendant must "overcome a strong presumption that counsel exercised reasonable professional judgment and sound trial strategy in fulfilling his responsibilities." Nash, supra, 212 N.J. at 542 (citation and internal quotation marks omitted). "Adequate assistance of an attorney is measured according to whether the counsel has professional skills comparable to other practitioners in the field." State v. Davis, 116 N.J. 341, 351 (1989). This has been equated with a standard of "reasonable competence." Ibid. (citing Fritz, supra, 105 N.J. at 53).
As to jail credits, Rule 3:21-8 states: "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." "Jail credits were conceived as a matter of equal protection or fundamental fairness[.]" Hernandez, supra, 208 N.J. at 36. "Without jail credit, a defendant would serve 'double punishment' because the time spent in custody before sentencing would not count toward the sentence." State v. Rawls, 219 N.J. 185, 193 (2014) (quoting Hernandez, supra, 208 N.J. at 36). Additionally, "wealthy defendants who could post bail would serve less total time than poor defendants who could not post bail and remained in pre-sentence custody." Ibid.
The rule has not been amended since the date defendant was sentenced.
Before the Supreme Court decided Hernandez, "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.'" Id. at 193-94 (citing State v. Carreker, 172 N.J. 100, 115 (2002)). In Hernandez, the Court held that a defendant incarcerated 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." Supra, 208 N.J. at 28 (emphasis added). Construed in light of that holding, 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 Supreme Court stated explicitly that its holding in Hernandez applied "only prospectively to sentences imposed as of tomorrow, except for those matters still on direct appeal in which the amount of jail credits was actually questioned or challenged by defendant at sentencing." Supra, 208 N.J. at 51. The Court decided Hernandez on June 8, 2011. Id. at 24. Consequently, we must apply pre-Hernandez law interpreting Rule 3:21-8 to this case.
As previously discussed, before the court decided Hernandez, "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.'" Rawls, supra, 219 N.J. at 193 (quoting Hernandez, supra, 208 N.J. at 36). "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.'" Id. at 194 (quoting Hernandez, supra, 208 N.J. at 37). Accordingly, to evaluate defendant's ineffective-assistance claim here, we must first decide whether he was entitled to mandatory jail credits for his New York incarceration, and if not, whether his counsel was ineffective for failing to request the credits in the exercise of the court's discretion.
We reject defendant's claim he was entitled to mandatory credits for the time he was incarcerated in New York waiting for trial. We also reject defendant's assertion he was confined in New York as the result of a New Jersey detainer issued pursuant to the Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A-1 to -15, because his assertion has no support in the record. Defendant's only citation to the record to support this assertion is a citation to the Law Division bench warrant issued by the sentencing judge on the day defendant failed to appear for his sentence.
The policy underpinning the IAD is "to encourage the expeditious and orderly disposition of [outstanding] charges and determination of the proper status of any and all detainers based on untried indictments, information or complaints." N.J.S.A. 2A:159A-1. "Outstanding charges pending in a sending state renders a defendant 'unable to stand trial' in the receiving state under the IAD." State v. Cook, 330 N.J. Super. 395, 413 (App. Div. 2000) (quoting State v. Miller, 299 N.J. Super. 387, 395, 397 (App. Div.), certif. denied, 151 N.J. 464, (1997)). There is no evidence in the record defendant was incarcerated in New York on a New Jersey detainer, and that his New York trial was pending suggests otherwise.
The IAD defines "sending state" as the "State in which a prisoner is incarcerated at the time that he initiates a request for final disposition[.]" N.J.S.A. 2A:159A-2(b). "Receiving State" is defined as "the state in which trial is to be had on an indictment, information or complaint[.]" N.J.S.A. 2A:159A-2(c). --------
Moreover, defendant's assertion that he would have posted bail but for the detainer is a bald assertion, which is an inadequate basis for a finding his counsel ineffective. Mitchell, supra, 126 N.J. at 579. Defendant has not disclosed or documented the amount of the bail, nor has he explained the resources from which he could have posted it.
Defendant alternatively argues the PCR judge could have exercised his discretion to grant jail credits against the New Jersey sentence for the time defendant was incarcerated in New York between his arrest and sentence; and his counsel was ineffective for not requesting them. As we have previously discussed, before Hernandez, a defendant incarcerated on multiple charges was entitled to credits only for the confinement directly attributable to the offense resulting in the initial incarceration; however, in its discretion, a sentencing court could award the credits against the sentence for more than one of the multiple offenses. Here, the PCR record is devoid of any evidence suggesting defense counsel asked the sentencing court to exercise its discretion and apply jail credits to the sentence on defendant's manslaughter conviction. We can discern no reason why defense counsel, representing a defendant in an objectively reasonable manner, would not request jail credits.
If defense counsel had requested the credits, the court would have either denied them or granted them. If the court denied them, defendant would have been no worse off. If the court had exercised its discretion and granted them, defendant would spend one less day in jail for each credit granted. We need not underscore the importance of freedom. Considering the magnitude of the result had the court granted a request for jail credits, and that defense counsel's requesting them would have required little or no effort, we can conceive of no reason why effective counsel would not make the request.
The PCR court found that defense counsel was not ineffective in view of the number of gap-time credits he obtained on behalf of defendant. However, as defendant points out, gap-time credits do not reduce the NERA period of parole ineligibility. Consequently, the gap-time credits awarded in this case were, to some extent, meaningless.
There may have been a valid reason defense counsel did not request jail credits at sentencing. But in view of defendant's assertion his counsel did not request jail credits, defendant has presented a prima facie case that his counsel's conduct was not objectively reasonable. Stated differently, defendant has met his burden under the first Strickland prong.
The PCR court also determined defendant had failed to establish the second Strickland prong. However, in this instance, where defendant's opportunity to receive jail credits never materialized due to counsel's ineffective performance, we deem a hearing appropriate. Moreover, in view of the policy considerations underpinning the court's Hernandez decision, and considering that a sentencing court pre-Hernandez could grant discretionary jail credits in the interest of fairness, justice, and fair dealings, we conclude defendant has satisfied the second Strickland prong.
For the foregoing reasons, we reverse the order denying defendant's PCR petition and remand this matter for an evidentiary hearing on his petition.
Reversed and remanded. 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