Opinion
DOCKET NO. A-1045-14T2
06-06-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RYAN MCERLEAN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Chief Appellate Attorney, of counsel; Shiraz Imran Deen, Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-02-0327. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Chief Appellate Attorney, of counsel; Shiraz Imran Deen, Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Ryan McErlean appeals a March 18, 2014 Law Division order denying his petition for post-conviction relief (PCR). We affirm.
I.
We glean the following facts and procedural history from the record. On February 9, 2005, defendant was arrested in Ocean County on charges of kidnapping, robbery, burglary, theft, and weapons offenses arising out of an October 31, 2004 incident in Lakewood. Defendant was remanded to the Ocean County Jail where he remained until March 29, 2005, when he posted bail and was released from custody.
On February 21, 2006, defendant was indicted by an Ocean County Grand Jury for first-degree kidnapping, N.J.S.A. 2C:13-1(b) (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); two counts of second-degree burglary, N.J.S.A. 2C:18-2 (counts three and four); three counts of third-degree theft, N.J.S.A. 2C:20-3 (counts five, six, and eight); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count seven); and fourth-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(a) (count nine). On the same day, defendant was arrested on unrelated charges in Atlantic County and remanded to the Atlantic County Jail.
On February 22, 2006, the Ocean County Superior Court transmitted an Ocean County Court Warrant to the Atlantic County Jail requiring that defendant be brought before the Ocean County Court in connection with the charges in the indictment. Defendant, however, remained in custody in the Atlantic County Jail for a total of 272 days until November 30, 2006, when he was released after his acquittal on the Atlantic County charge.
Upon defendant's release from the Atlantic County Jail he was transferred pursuant to the Ocean County warrant to the Ocean County Jail. During his incarceration in the Ocean County Jail, defendant served a ten-day sentence between January 17, 2007 and January 26, 2007, on an unrelated motor vehicle violation.
On February 7, 2008, defendant pled guilty in Ocean County to first-degree robbery under count two of the indictment pursuant to a negotiated plea agreement. On April 4, 2008, defendant was sentenced to a fourteen-year custodial term subject to the requirements of the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant was awarded 530 days of jail credit, but was not given jail credit for the 272 days he was incarcerated in the Atlantic County Jail.
Defendant was also not awarded jail credit for the ten days he was incarcerated in the Ocean County Jail for his sentence on the motor vehicle charges.
Defendant filed a pro se notice of appeal challenging his sentence, and was assigned counsel. On December 29, 2009, we issued an order affirming defendant's sentence. State v. McErlean, A-4052-07 (App. Div. Dec. 29, 2009). Defendant's petition for certification was denied. State v. McErlean, 201 N.J. 446 (2010).
On August 16, 2012, defendant filed a pro se PCR petition claiming that his plea counsel was ineffective by failing to adequately investigate the case, file motions to dismiss the indictment and to suppress evidence, and request that defendant be awarded an additional 272 days of jail credit for the time he was incarcerated in the Atlantic County Jail. Defendant further alleged that counsel misled him regarding the penal consequences of the plea and pressured him into pleading guilty.
The court granted defendant's request for an evidentiary hearing. The court heard testimony on September 27, 2013, and at the continuation of the hearing on November 15, 2013, defendant withdrew all of his claims with the exception of his contention that his attorney was ineffective by failing to request that he be awarded 272 days of jail credit at sentencing. The court permitted the submission of additional briefs on defendant's remaining claim.
The court subsequently issued a detailed written opinion and entered an order denying defendant's petition. The court rejected defendant's argument that he was entitled to jail credit for the time he was incarcerated in Atlantic County, finding that at the time defendant was sentenced Rule 3:21-8 did not require the award of jail credit on defendant's Ocean County sentence for the time he spent in the Atlantic County jail on unrelated charges. State v. Hill, 208 N.J. Super. 492, 494-95 (App. Div.), certif. denied, 104 N.J. 412 (1986). The court also found defendant was not entitled to the jail credit under State v. Hernandez, 208 N.J. 24 (2011), because the decision had prospective application only. This appeal followed.
On appeal, defendant's counsel makes the following argument:
POINT I:
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR RESENTENCING BECAUSE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT UNDER THE NEW JERSEY CODE OF CRIMINAL JUSTICE TO BE GIVEN CREDIT FOR TIME SERVED WAS VIOLATED.
In defendant's pro se supplemental brief, he argues:
POINT I:
IN COMPLIANCE WITH STATE V. HERNANDEZ, 208 N.J. 24 (2011) AND ITS PROGENY, APPELLANT IS ENTITLED TO ADDITIONAL JAIL CREDIT PURSUANT TO R. 3:21-8, FROM FEBRUARY 21, 2006[,] TO NOVEMBER 30, 2006.
POINT II:
IN THE INTEREST OF JUSTICE APPELLANT REQUEST[S] THAT THE APPELLATE DIVISION EXERCISE AND RETAIN ORIGINAL JURISDICTION AND AMEND HIS JUDGMENT OF CONVICTION TO REFLECT ADDITIONAL JAIL CREDIT TOTALLING 283 DAYS.
II.
In defendant's PCR petition, he asserted that his plea counsel was ineffective by failing to request that the court award an additional 272 days of jail credit. Defendant's claim is considered under the two-part test established by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
Under Strickland, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant also must show that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
We review the legal conclusions of a PCR court de novo. State v. Harris, 181 N.J. 391, 419 (2004) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The de novo standard of review applies to mixed questions of fact and law. Harris, supra, 181 N.J. at 420. Where an evidentiary hearing has not been held, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court." Id. at 421. We apply that standard here.
Although the PCR court commenced an evidentiary hearing, it was on issues unrelated to defendant's claim that his counsel failed to request jail credit at sentencing. There was no evidentiary hearing related to defendant's claim concerning the award of jail credit, nor was there a need for a hearing because the facts relevant to defendant's jail credit claim are not disputed.
The PCR court did not analyze defendant's claim under the Strickland standard, but its findings support its rejection of defendant's petition. Defendant did not demonstrate that his plea counsel's performance was deficient or that he suffered prejudice as required under the Strickland standard because, as the PCR court correctly concluded, defendant was not entitled to the claimed jail credit under the law applicable at the time of sentencing.
Rule 3:21-8 provides that a "defendant shall receive credit on the term of a custodial sentence for any time served in custody in jail . . . between arrest and the imposition of sentence." At the time of defendant's sentencing, the Rule required the award of jail credit "only [for] such confinement as [was] attributable to the arrest or other detention resulting from the particular offense" to which the sentence applied. State v. Council, 137 N.J. Super. 306, 308 (App. Div. 1975), certif. denied, 77 N.J. 472 (1978); see also In re Hinsinger, 180 N.J. Super. 491, 499 (App. Div.) ("R. 3:21-8 only applies to confinement directly attributable to the particular offense giving rise to the initial incarceration."), certif. denied, 88 N.J. 494 (1981).
At the time of his sentencing, defendant was not entitled to jail credit for the time spent in custody on the unrelated Atlantic County charge for which he was acquitted, even though he was also detained pursuant to the Ocean County warrant during his period of incarceration in the Atlantic County Jail. As we explained in Hill, while "unfortunate," it was "not uncommon for a defendant to be incarcerated on charges for which he [was] later acquitted or which [were] subsequently dismissed . . . . Nevertheless, we perceive[d] great mischief flowing from a rule which would accord such individuals credit against custodial sentences on wholly unrelated charges." Hill, supra, 208 N.J. Super. at 495.
Such incarceration, "'unlike money on deposit in the bank or a credit card, [could] not be drawn on or credited against penalties imposed' for other criminal activities." Ibid. (quoting State v. Marnin, 108 N.J. Super. 442, 445 (App. Div.), certif. denied, 55 N.J. 598 (1970)). In those circumstances, the granting of jail credit was "'at best discretionary, based upon the general equities of the situation, and [was] not a matter of due process' or right." Ibid. (quoting Marnin, supra, 108 N.J. Super. at 445).
Defendant did not argue or establish that it would have been an abuse of the sentencing court's discretion to reject a request for the 272 days of jail credit. We therefore do not consider the issue other than to note that it was defendant's burden to establish each prong of the Strickland standard. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. --------
We are satisfied that defendant failed to demonstrate that his counsel's performance was deficient under the first prong of the Strickland standard. The reasonableness of defendant's plea counsel's performance must be "viewed as of the time of counsel's conduct." State v. Castagna, 187 N.J. 293, 314 (2006) (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 694). As noted, defendant was not entitled to the 272 days of jail credit at the time his sentence was imposed and his plea counsel's performance was not deficient by failing to make a meritless request of the court. See State v. O'Neal, 190 N.J. 601, 619 (2007) (holding "[i]t is not ineffective assistance of counsel for defense counsel not to file a meritless motion"); State v. Worlock, 117 N.J. 596, 625 (1990) ("The failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel.").
Defendant also failed to establish that he suffered prejudice under the second prong of the Strickland standard because even if his counsel requested the jail credit, the result of the sentencing proceeding would not have changed. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Again, a request for the 272 days of jail credit would have been properly rejected by the sentencing court because defendant was not entitled to it. Defendant therefore did not demonstrate there is a reasonable probability that but for his counsel's failure to request the jail credit, the jail credit awarded would have been different.
A petitioner must establish both prongs of the Strickland standard in order to obtain a reversal of the challenged conviction. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Nash, 212 N.J. 518, 542 (2013); Fritz, supra, 105 N.J. at 52. A failure to satisfy either prong of the Strickland standard requires the denial of a petition for PCR. Strickland, supra, 466 U.S. at 700, 104 S. Ct. at 2071, 80 L. Ed. 2d at 702. Because defendant failed to satisfy both prongs of the Strickland standard, the court properly denied his PCR petition.
We reject defendant's contention that our Supreme Court's decision in State v. Hernandez, 208 N.J. 24 (2011), requires a different result. The Court in Hernandez held that "a defendant in jail pending trial in one county subject to a detainer on charges in another county must [now] receive jail credits under Rule 3:21-8 for that time on both charges" for the time spent in custody. Id. at 49 (emphasis added). Because the Court's holding represented a departure from existing precedent, the Court determined that it would apply prospectively to sentences imposed after the decision and to "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.
Defendant was sentenced prior to the Court's decision in Hernandez, did not have a direct appeal pending when the decision was issued, and never challenged the jail credit award at the time of sentencing. Ibid. The Court's holding in Hernandez therefore is inapplicable where, as here, a defendant was sentenced prior to the issuance of the Court's decision.
We are also not persuaded by defendant's argument that because the Hernandez decision did not arise from the precise factual situation extant here, he should receive the jail credit as a matter of equity and due process because the sentence should "shock the judicial conscience." The law applicable at the time of defendant's sentencing did not require the award of jail credit under the circumstances presented here, but permitted an award of the jail credit as a matter of discretion and not due process. Hill, supra, 208 N.J. Super. at 495. We discern no basis in the record supporting defendant's argument that the plea court's imposition of a sentence in accordance with the applicable legal principles at the time constituted an abuse of discretion or should shock our judicial conscience.
We also note that defendant's claim concerning the jail credit is barred under Rule 3:22-4. It could have reasonably been raised on the direct appeal of his sentence and he made no showing that it falls within any of the exceptions in the Rule. See Nash, supra, 212 N.J. at 546 ("A petitioner is generally barred from presenting a claim on PCR that could have been raised . . . on direct appeal" unless the claim is within the exceptions under Rule 3:22-4.).
Defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION