Opinion
DOCKET NO. A-4272-13T2
10-03-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. HOWARD PARKS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Kevin A. Lucid, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 00-03-312. Joseph E. Krakora, Public Defender, attorney for appellant (Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Kevin A. Lucid, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from a May 2, 2014 order denying his motion to award him 3,556 days of credit against a sentence. After reviewing the record, briefs, and applicable legal principles, we reverse.
I
Defendant committed three separate robberies and related offenses on December 1, December 13, and December 28, 1999. On August 18, 2000, he pled guilty to bank robbery, 18 U.S.C. § 2113(a) and (d), in the United States Federal District Court and, on December 1, 2000, the federal court sentenced him to a prison term of twelve years and seven months. We refer to this sentence as the "federal sentence."
On January 17, 2001, defendant pled guilty in Essex County Superior Court to first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1), and second-degree robbery, N.J.S.A. 2C:15-1. On April 24, 2001, he was sentenced to a twelve-year term of imprisonment on both convictions, subject to an eighty-five percent period of parole ineligibility. We shall refer to this sentence as the "Essex County sentence." The court ordered each sentence to run concurrently to the other, as well as to the sentence imposed by the federal court on the conviction for bank robbery.
On October 5, 2001, a jury in the Superior Court in Union County convicted defendant of first-degree armed robbery, N.J.S.A. 2C:15-1. On January 18, 2002, the sentencing court granted the State's motion for an enhanced sentence under the Persistent Offenders Accountability Act, or the "Three Strikes Law," N.J.S.A. 2C:43-7.1, because the court found defendant had by then committed three predicate convictions. In accordance with this statute, the court sentenced defendant to life imprisonment without parole. We refer to this sentence as the "first Union County sentence."
Neither the judgment of conviction nor the transcript of the hearing pertaining to the first Union County sentence indicated whether this sentence was to run concurrently with or consecutively to the federal and Essex sentences, but the parties, court and the Department of Corrections ("DOC") have treated the first Union County sentence as one running concurrently with the Essex County and federal sentences.
In an unreported opinion, we affirmed the conviction arising out of the Union County matter, but reversed the sentence and remanded the matter for a determination whether defendant's conviction for robbery in federal court was substantially equivalent to a conviction in state court, pursuant to N.J.S.A. 2C:15-1. State v. Parks, No. A-3294-01T4 (App. Div. Nov. 24, 2003), certif. denied, 179 N.J. 311 (2004).
On resentencing, the trial court determined defendant's federal conviction was a "strike" for purposes of N.J.S.A. 2C:43-7.1, and again imposed a mandatory life sentence without parole. We affirmed the sentence in an unreported opinion, see State v. Parks, No. A-0336-04T2 (App. Div. May 18, 2006), but on October 25, 2007, the Supreme Court reversed the sentence and remanded the matter for re-sentencing. State v. Parks, 192 N.J. 483, 488 (2007). The Supreme Court found defendant did not qualify for an enhanced term under the Three Strikes Law because, at the time he committed the offense for which he was convicted in Union County, he had committed only one offense. Ibid.
On October 14, 2011, the trial court in Union County resentenced defendant to a twenty-year term of imprisonment, with a ten-year period of parole ineligibility, to run consecutively to the federal and Essex County sentences. We refer to the latter sentence as the "second Union County sentence." The trial court assigned the calculation of any jail and gap credits to the DOC.
The record does not indicate why resentencing was delayed for almost four years.
Notwithstanding the calculation of jail and gap-time credits was to be handled by the DOC, the judgment of conviction indicates defendant was awarded 269 days of gap-time credit. On March 18, 2013, the court entered an amended judgment of conviction reflecting the gap-time credit was 259 days. This credit pertained to a period of time before defendant received his first Union County sentence and is not challenged in this appeal.
The record does not reflect when the Essex County sentence expired but presumably it did so on or before April 24, 2013. On July 15, 2013, defendant's federal sentence ended and, the following day, the second Union County sentence began.
In October 2013, defendant wrote a letter to the DOC requesting that the time he spent in prison serving the first Union County sentence be credited against the second sentence. The DOC denied his request, reasoning defendant could not have earned prior service credit against the second Union County sentence because, as a consecutive term, such sentence did not commence until July 16, 2013, when both the federal and Essex County sentences expired.
Credit for the time a defendant has served on a sentence before it or the underlying conviction has been reversed and vacated is referred to as "prior service credit." State v. Rippy, 431 N.J. Super. 338, 354 (App. Div. 2013), certif. denied, 217 N.J. 284 (2014). Prior service credits apply to the "front end" of a sentence and thus reduce a parole ineligibility term. See ibid.
Defendant challenged the DOC's determination in the Law Division. He argued that because he had served time on the first Union County sentence, he was entitled to prior service credit or jail credit against the second Union County sentence from the day the first Union County sentence began (January 18, 2002) to the date of resentencing (October 14, 2011).
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."
Such credit for pre-sentence custody is commonly labeled "'jail credits.'" . . . Jail credits are "day-for-day credits," 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. The practical effect of that allocation is that jail credits will "reduce a[] [parole] ineligibility term as well as the sentence imposed."
[State v. Hernandez, 208 N.J. 24, 36-37 (2011)(internal citations omitted.]
Among other things, the State contended the DOC had appropriately denied defendant credit against the second sentence for the reason expressed by the DOC when it previously denied defendant prior service credit. Specifically, because defendant received a new sentence in Union County and such sentence could not have started until after the Essex County and federal sentences ended, defendant did not commence serving time on the second Union County sentence until July 16, 2013.
The court agreed with the State and, on May 2, 2014, denied defendant's application for credit against the second Union County sentence.
II
Defendant raises the following arguments for our consideration.
POINT I - DENYING PARKS PRIOR-SERVICE CREDIT FOR THE TIME HE SPENT IN PRISON WHILE HE WAS SERVING HIS [FIRST] UNION COUNTY SENTENCE IS A VIOLATION OF THE CONSTITUTIONAL PROHIBITION AGAINST DOUBLE JEOPARDY.
POINT II - DENYING PARKS CREDIT FOR THE TIME HE SPENT IN PRISON AFTER HIS [FIRST] UNION COUNTY SENTENCE WAS REVERSED IMPROPERLY PENALIZES THE EXERCISE OF HIS RIGHT TO APPEAL.
As indicated by his argument points, defendant contends the court erred in denying his request for credit against the second Union County sentence. More specifically, he claims that he is entitled to: (1) prior service credit from January 18, 2002, the day he began serving the first Union County sentence, to October 25, 2007, the day the Supreme Court reversed the first Union County sentence, which is a total of 2,106 days; and (2) credit for the period he served from the date his sentence was reversed on October 25, 2007, to October 14, 2011, the day the trial court resentenced him, which is a total of 1,450 days.
Defendant does not seek any credit for the time he was in custody before the first Union County sentence was imposed on January 18, 2002, or after the second Union County sentence was imposed on October 14, 2011. --------
As it did below, the State argued defendant is not entitled to any credit against the second Union County sentence because, as a consecutive sentence, it did not commence until the Essex County and federal sentences ended.
North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989), informs our analysis. In that consolidated matter, petitioner William Rice had pled guilty to four charges of burglary, was sentenced, and received, in the aggregate, a ten-year term of imprisonment. His convictions were later vacated when a court determined he had not been afforded his constitutional right to counsel. After retrial, he was convicted and sentenced, in the aggregate, to a twenty-five-year term of imprisonment.
When not afforded any credit for the time spent in prison on the original sentence, the petitioner brought a habeas corpus proceeding in federal district court, alleging the state trial court erred when it failed to give him credit for the time previously spent in prison and for imposing a more severe sentence upon retrial.
The federal district court agreed with Rice, although it did observe imposing a harsher sentence might be constitutionally permissible if upon retrial such sentence could be justified. However, the court found Rice had been denied due process of law because, "under the evidence in this case, the conclusion is inescapable that the State of Alabama is punishing petitioner Rice for his having exercised his post-conviction right of review and for having the original sentences declared unconstitutional." Rice v. Simpson, 274 F. Supp. 116, 121, 122 (M.D. Ala. 1967). The United States Court of Appeals for the Fifth Circuit affirmed, see Simpson v. Rice, 396 F.2d 499, 500 (5th Cir. 1968), and the United States Supreme Court granted certiorari. Simpson v. Rice, 393 U.S. 932, 89 S. Ct. 292, 21 L. Ed. 2d 268 (1968).
On the question whether "in computing the new sentence, the Constitution requires that credit must be given for that part of the original sentence already served," the Pearce Court concluded that for any "sentence imposed after conviction upon retrial, credit must be given for time served under the original sentence." Pearce, supra, 395 U.S. at 716-17, 89 S. Ct. at 2076, 23 L. Ed. 2d at 664. Citing Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969), the Court noted, "the Fifth Amendment guarantee against double jeopardy is enforceable against the States through the Fourteenth Amendment[,]" and is a guarantee that "protects against multiple punishments for the same offense . . . [and] is what is necessarily implicated in any consideration of the question whether, in the imposition of sentence for the same offense after retrial, the Constitution requires that credit must be given for punishment already endured." Pearce, supra, 395 U.S. at 717, 89 S. Ct. at 2076, 23 L. Ed. 2d at 664-65. The Court elaborated:
We think it is clear that this basic constitutional guarantee is violated when punishment already exacted for an offense is not fully "credited" in imposing sentence upon a new conviction for the same offense. . .
We hold that the constitutional guarantee against multiple punishments for the same offense absolutely requires that punishment already exacted must be fully "credited" in imposing sentence upon a new conviction for the same offense. If, upon a new trial, the defendant is acquitted, there is no way the years he spent in prison can be returned to him. But if he is reconvicted, those years can and must be returned -- by subtracting them from whatever new sentence is imposed.
[Id. at 718-19, 89 S. Ct. at 2077, 23 L. Ed. 2d at 665-66.]
The premise that punishment previously exacted must be credited when imposing a sentence upon a new conviction for the same offense "applies equally to a new sentence imposed for the same conviction after a government appeal." United States v. Martin, 363 F.3d 25, 38 (1st Cir. 2004)(citing Pearce, supra, 395 U.S. at 718, 89 S. Ct. at 2077, 23 L. Ed. 2d at 665); United States v. Bogdan, 302 F.3d 12, 17 (1st Cir. 2002); see also United States v. King, 1998 U.S. App. LEXIS 27101 (9th Cir. Oct. 20, 1998)("Punishment served under a voided sentence must be fully credited in imposing a new sentence for the same offense."); Knapp v. Cardwell, 667 F.2d 1253, 1263 (9th Cir. 1982)("Double jeopardy . . . require(s) that upon resentencing credit be given for punishment already endured under the first sentence.)
In light of the principles set forth in Pearce, we cannot agree that the time defendant served on the first Union County sentence was, as the trial court put it, "erased" when the court imposed the second Union County sentence. Such notion fails to recognize that, before the second sentence was imposed, defendant endured punishment for over five-and-a-half years for the same crime for which he is presently serving time in prison.
The State acknowledges that a defendant is entitled to prior service credit if, following the successful appeal of a sentence, that sentence is vacated and a new sentence is imposed. But the State contends prior service credit is not available to a defendant if he was serving more than the one sentence he challenged and successfully overturned on appeal. In support of its position, the State relies upon State v. Rippy, 431 N.J. Super. 338 (App. Div.), certif. denied, 217 N.J. 284 (2014).
To be sure, when serving the first sentence, defendant was simultaneously serving time on the federal and Essex County sentences, but that fact did not in any way diminish the time defendant spent in prison on the first Union County sentence. To conclude otherwise would mean that no sentence served concurrently with another could ever be fulfilled. Further, we have perused Rippy and cannot conclude this case provides support for the State's premise.
In Rippy, the defendant was charged with committing various crimes over a specified period. He was convicted and sentenced to a term of imprisonment on some but not all of those charges. Then, before those remaining charges were resolved, we overturned the convictions that had been entered against him and remanded the matter for a new trial.
In addition to other determinations we made in Rippy, none of which are applicable here, we held the defendant was entitled to prior service credit from the day he had been sentenced on the convictions to the day those convictions were reversed. Contrary to the State's assertion, the Rippy court did not hold a defendant was eligible for prior service credits only if at the time he challenged his sentence on appeal he was not serving any other sentence.
Defendant further argues the trial court erred when it concluded he may not receive any credit on the first Union County sentence because, when serving that sentence, he was detained in a "foreign jurisdiction" and he was not being detained for the sole purpose of holding defendant for a New Jersey charge or detainer. We have reviewed the cases upon which the trial court relied in support of its holding and have determined that none are apposite to the facts in this case.
To summarize, defendant is entitled to prior service credit from January 18, 2002 to October 25, 2007. To find otherwise would subject defendant to multiple punishments for the same offense. To avoid offending the Fifth Amendment, defendant must receive credit against the second Union County sentence for the time served on the first one.
Defendant next contends he is entitled to "credit" for the time he spent in prison from the day the Supreme Court reversed his life sentence on October 25, 2007 to the day he was resentenced on October 14, 2011. He does not specifically identify the credit he seeks; nevertheless, we have determined he is entitled to gap-time credit, see N.J.S.A. 2C:44-5(b)(2), from the day the first Union County sentence was reversed to the day he was resentenced on the Union County conviction.
If a defendant has been charged with and is confined on multiple offenses but has not been sentenced on any of those charges, he is entitled to day-to-day jail credit against all of the sentences that will be imposed on such charges from the day of his confinement to the day he is sentenced on the first of those multiple charges. State v. Hernandez, 208 N.J. 24, 28 (2011); Rippy, supra, 431 N.J. Super. at 343. But once he is sentenced on the first of those multiple charges, he can no longer earn jail credits on the remaining charges.
However, a defendant is eligible for gap-time credit if the following criteria have been met: "(1) the defendant has been sentenced previously to a term of imprisonment, (2) the defendant is sentenced subsequently to another term, and (3) both offenses occurred prior to the imposition of the first sentence." State v. Franklin, 175 N.J. 456, 462 (2003); accord Hernandez, supra, 208 N.J. at 38.
The term "gap-time credit" is used because the credit "applies to the gap between the sentences." Richardson v. Nickolopoulos, 110 N.J. 241, 242 (1988). "[G]ap-time credit is applied to the back end of the aggregated sentences, rather than the front end." Meyer v. N.J. State Parole Bd., 345 N.J. Super. 424, 427-28 (App. Div. 2001), certif. denied, 171 N.J. 339 (2002). Gap time credit may not be used "to reduce a judicial or statutory parole bar by a 'front-end' reduction of [the] aggregated sentences." Richardson v. Nickolopoulos, supra, 110 N.J. at 255. Nor may gap-time credit be applied to reduce the eighty-five percent parole ineligibility period mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2. Meyer v. N.J. State Parole Bd., supra, 345 N.J. Super. at 429-30.
Here, defendant is not eligible for jail credits from October 25, 2007 to October 14, 2011 because, when the first Union County sentence was vacated, he had been already sentenced on at least one other charge. But he is eligible for gap-time credit. We are mindful of the holding in State v. Carreker, 172 N.J. 100, 103 (2002), which clarified that a defendant may not get gap-time credit for time served on an out-of-state sentence. Here, however, while defendant was serving time on his federal sentence during the period in question and was doing so in a federal facility, he was also serving time on the Essex County sentence. Thus, defendant is entitled to gap-time credit vis-a-vis the latter sentence.
Reversed. The trial court shall issue within thirty days a revised judgment of conviction that reflects the proper credits consistent with this opinion. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION