Opinion
DOCKET NO. A-0233-12T1
07-28-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KENNETH BELL, a/k/a ERIC HYMAN, RICK HYMAN, KENNETH QUILL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Elizabeth C. Jarit, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief; Matthew P. Tallia, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-03-00425. Joseph E. Krakora, Public Defender, attorney for appellant (Elizabeth C. Jarit, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief; Matthew P. Tallia, on the brief). PER CURIAM
Defendant Kenneth Bell appeals from the Law Division's four-year sentence imposed on June 26, 2012, following his guilty plea for violation of probation (VOP). Defendant seeks additional jail credits corresponding to the period of custody from his arrest on new charges to the date of sentencing on the VOP. He also challenges the length of his sentence. While we discern no sentencing error as to the term of defendant's sentence, we conclude defendant is entitled to additional jail credits. We therefore remand for calculation of the number of credits defendant is entitled to receive, and for amendment of the VOP Judgment of Conviction, accordingly.
Defendant was initially charged on November 23, 2010, in Middlesex County, for resisting arrest. When defendant failed to appear for a pre-arraignment interview, the court issued a bench warrant and he was subsequently arrested on June 21, 2011. Defendant pled guilty to third-degree resisting arrest on October 31, 2011, pursuant to a plea agreement, which provided for mental health probation conditioned on defendant's successful completion of a long-term inpatient drug treatment program. On January 20, 2012, the court sentenced defendant to five years of probation conditioned on his completion of the Salvation Army drug treatment program.
On February 28, 2012, the Salvation Army program discharged defendant after he tested positive for cocaine. On March 29, 2012, defendant was arrested in Union County for theft by unlawful taking, possession of controlled dangerous substances and burglary. On April 16, 2012, defendant was charged in Middlesex County with violating the following conditions of his probation:
1) . . . On February 28, 2012, [defendant] was unsuccessfully discharged from The Salvation Army [program] in Newark after testing positive for [c]ocaine.
2) . . . On March 19, 2012, [defendant] was not admitted into The Salvation Army [program] in Jersey City after testing positive for [c]ocaine.
3) [Defendant] failed to pay [c]ourt imposed financial obligations . . . [with] [n]o payments made towards the present indictment.
4) [Defendant] . . . has failed to report to the Probation Officer as directed. . . .
5) While under probation supervision, the probationer [was] charged with a new offense. . . .
On June 22, 2012, defendant pled guilty to the VOP and was sentenced to four years in state prison. The judge found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which defendant was convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The judge found no mitigating factors. In addition to the nature of the charge, resisting arrest, the judge took note of defendant's lengthy criminal record, including "[thirty] arrests, [eleven] municipal court convictions, [five] prior burglaries, [two] violations of probation," and the subject offense, defendant's "[sixth] Superior Court conviction."
Defendant received 200 days of jail credit for time spent in pre-adjudication custody against this sentence, but did not receive additional jail credits for the time he spent in custody following the Union County arrest until the sentencing on the Middlesex County VOP charge. This appeal followed with defendant seeking jail credits against his VOP sentence for the time he spent in custody after his arrest in Union County until his sentencing on June 22, 2012.
Initially, this matter was included on our January 9, 2013 Excessive Sentencing Oral Argument calendar. See R. 2:9-11. We ordered the matter relisted after full briefing to address the impact of State v. Hernandez, 208 N.J. 24 (2011), on the calculation of jail credits related to a VOP sentence.
On appeal, defendant raises the following issues:
Point I
THE TRIAL COURT ERRED IN FAILING TO AWARD JAIL CREDITS FOR THE TIME [DEFENDANT] SPENT IN CUSTODY BETWEEN HIS ARREST AND SENTENCE ON THE VIOLATION OF PROBATION.
A. UNDER THE PRINCIPLES OF STATE V. HERNANDEZ, 208 N.J. 24 (2011), [DEFENDANT] IS ENTITLED TO JAIL CREDITS AGAINST HIS VIOLATION OF PROBATION SENTENCE FOR THE ENTIRE PERIOD HE WAS IN PRE-SENTENCE CUSTODY ON A NEW OFFENSE.
B. UNDER STATE V. GRATE, 311 N.J. SUPER. 456 (APP. DIV. 1998), [DEFENDANT] IS ENTITLED TO JAIL CREDITS AGAINST HIS VIOLATION OF PROBATION SENTENCE FOR THE PRE-SENTENCE PERIOD FOLLOWING REVOCATION OF BAIL.
POINT II
THE JUDGE ERRED BY FAILING TO FIND MITIGATING FACTORS AMPLY BASED IN THE RECORD THAT WOULD HAVE SUPPORTED IMPOSITION OF A THREE-YEAR PRISON TERM.
"A challenge to an award or denial of jail credits, as inconsistent with Rule 3:21-8, constitutes an appeal of a sentence 'not imposed in accordance with law.'" State v. DiAngelo, 434 N.J. Super. 443, 451 (App. Div. 2014) (quoting State v. Rippy, 431 N.J. Super. 338, 347 (App. Div. 2013)), certif. denied, 217 N.J. 284 (2014). A trial judge's "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." State v. McKeon, 385 N.J. Super. 559, 567 (App. Div. 2006). Thus, we review legal issues de novo. State v. Bradley, 420 N.J. Super. 138, 141 (2011).
Rule 3:21-8 (the Rule) provides: "The 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." In the past, our courts have interpreted the Rule to permit jail credits only for "'confinement . . . 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, however, has significantly changed the law relating to jail credits available to defendants who have been charged and detained on multiple offenses at the same time.
In Hernandez, the Court held that "a defendant in jail pending trial in one county subject to a detainer on charges in another county must receive jail credits under Rule 3:21-8 for that time on both charges if ultimately sentenced on both." Id. at 49. This pronouncement follows the Court's clear interpretation of the Rule that "defendants are entitled to . . . 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." Id. at 28 (quoting R. 3:21-8). Thus, the Rule requires a defendant to receive jail credit for time spent in presentence custody. Id. at 48-49. Presentence credit begins upon arrest until the first sentencing. See id. at 50. ("[O]nce the first sentence is imposed, a defendant awaiting imposition of another sentence accrues no more jail credit under Rule 3:21-8.").
The Hernandez decision did not address the application of jail credits in the VOP context; however, we recently addressed that issue to determine whether a defendant is entitled to jail credit for time in custody between the filing of VOP charges and the imposition of a custodial sentence for violating probation (specifically, when the time in custody occurs simultaneously with detention on new charges). In DiAngelo, supra, 434 N.J. Super. at 443, the defendant, while on non-custodial probation, was arrested and detained on new criminal charges. While in jail, she was served with a VOP statement of charges recommending revocation of her probationary sentence and imposition of a custodial term for the prior conviction. Id. at 446-47. The defendant remained in custody until sentencing, at which point she requested jail credits on the VOP sentence corresponding to the period of custody from arrest on the new charges to the date of the VOP sentencing. Ibid. The State opposed the request, arguing that jail credit only applied against the sentence on the new charges because defendant was arrested solely on the new offense and the custodial term for the VOP was related to, and part of, the initial sentence for her prior offense. Ibid. The judge agreed with the State, concluding the VOP sentence was not a sentence to which the Rule applied. Ibid.
In deciding DiAngelo, we recognized "the overarching public policy" requiring "consistency in awarding jail credits to achieve fairness in sentencing to all[,]" id. at 460, and concluded "[t]he serving of the [VOP] 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." Id. at 461.
Here, defendant was in custody when the VOP charges were filed in April 2012. He remained in custody on the new charges and on an active detainer from Middlesex County for the VOP until sentenced in Middlesex County on June 22, 2012, and then sentenced in Union County on August 3, 2012 to a twelve-month term of incarceration. Accordingly, applying our holding in DiAngelo, here, defendant is entitled to jail credit on the VOP sentence.
Defendant received eighty-five days of jail credit for the Union County charge, from March 29, 2012 to June 21, 2012.
We now turn to consider the appropriate date for the credits to be issued. In DiAngelo, the VOP statement of charges was issued while the defendant was in jail on new charges. DiAngelo, supra, 434 N.J. Super. at 449. We rejected the defendant's assertion that jail credits began to accrue upon her arrest for the new charges, reasoning that credit should not be awarded for a period of time preceding the filing of the VOP statement of charges. Instead, we concluded "[t]he . . . appropriate date for credit against the VOP sentence is the date the VOP statement of charges issued." Id. at 462.
The accrual of jail credits on VOPs requires the consideration of the facts on a case-by-case basis within a narrow set of parameters outlined in DiAngelo. Thus, we review the timeline in this case to determine when jail credits should begin to accrue. The VOP charges against defendant were filed April 2012 while defendant remained in custody on the new Union County charge. Defendant was sentenced on the VOP charges on June 22, 2012.
Defendant urges he should receive jail credit starting with his arrest on the new charges in Union County. We disagree. Based upon the rationale espoused in Hernandez and DiAngelo, we conclude jail credits began to accrue on the date the VOP charges were issued. Like in DiAngelo, defendant's VOP charges here followed his arrest on charges in another county. As we explained in DiAngelo:
The more appropriate date for credit against the VOP sentence is the date the VOPWe therefore conclude that credit against the VOP sentence cannot accrue until the VOP charges are pending; in this case, that date is April 16, 2012.
statement of charges issued. We accept this date primarily because VOPs do not automatically issue, but must be supported by probable cause. [State v. Wilkins, 230 N.J. Super. 261, 264 (App. Div. 1989)] (providing evidence of alleged criminal conduct, prior to conviction, is sufficient to support VOP). Therefore, Probation cannot pursue a VOP until and unless it has probable cause of a defendant's violation of probation. We are satisfied the Guidelines sufficiently direct the timing of the filing of VOPs to insure charges will not be delayed once Probation learns a defendant has committed a new offense. Absent a showing of an abusive exercise of authority, it would be unreasonable to grant defendant credit for the custodial time elapsing prior to the filing of a VOP statement of charges.
[Id. at 464.]
Finally, defendant argues the four-year term of imprisonment he received was excessive and the record supported imposition of a three-year prison term. Defendant's argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The sentence imposed here is clearly not manifestly excessive or unduly punitive, does not represent an abuse of the court's sentencing discretion, and does not shock the judicial conscience. State v. Fuentes, 217 N.J. 57, 70 (2014); State v. O'Donnell, 117 N.J. 210, 215-16 (1989).
Accordingly, we remand this matter for the calculation of jail credits for the VOP conviction from April 16 to June 22, 2012. The VOP Judgment of Conviction shall be amended to reflect these additional credits.
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