Opinion
DOCKET NO. A-4228-12T2
02-13-2015
STATE OF NEW JERSEY, Respondent-Respondent, v. MARK SAMUELS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Brian P. Keenan, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-08-01036. Joseph E. Krakora, Public Defender, attorney for appellant (Brian P. Keenan, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Mark Samuels appeals from an April 9, 2012 Law Division order denying his motion to correct an illegal sentence. Defendant's sole argument is that he is entitled to jail credits on his 2003 Union County conviction. We disagree, and affirm the trial court's order.
Defendant was charged in Union County Indictment No. 02-08-01036 (the Union County indictment) for crimes that he allegedly committed in various Union County municipalities between March 13, 2002, and March 20, 2002. On March 21, 2002, defendant was arrested on charges that subsequently formed the basis of Essex County Indictment No. 02-06-2498 (the Essex County indictment). Defendant was housed in the Essex County Jail on the March 21 charges, and Union County issued a detainer approximately one week later. Defendant was unable to post bail on either the Essex or Union County charges. Consequently, he remained incarcerated in Essex County, and was transported to Union County for court appearances on the Union County indictment.
The Essex County indictment is not included in defendant's appendix.
Pursuant to a negotiated plea agreement to resolve the Union County indictment, on May 12, 2003, defendant pled guilty to five counts of first-degree robbery, N.J.S.A. 2C:15-1. In return, the State agreed to dismiss the remaining eighteen counts. The State also agreed to recommend a fifteen-year term of imprisonment, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to run concurrent with any sentence imposed in Essex County.
Defendant was sentenced on the Union County indictment on July 18, 2003, in accordance with the plea agreement. Relative to jail credits, the following colloquy ensued:
THE COURT: There are no jail credits on this case because credits apply to the other matters.
[DEFENSE COUNSEL]: The jail credits will apply to the Essex sentence because if my recollection serves me correctly, he was locked up on the [Essex County] charges.
THE COURT: State v. Council, State v. Hill, when you are arrested on a separate matter you cannot get double credits.
137 N.J. Super. 306 (App. Div. 1975).
208 N.J. Super. 492 (App. Div.), certif. denied, 104 N.J. 412 (1986).
On April 28, 2003, defendant pled guilty in Essex County to first-degree armed robbery, N.J.S.A. 2C:15-1; two counts of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-1 and 2C:15-1; and two counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). On July 28, 2003, defendant was sentenced on the Essex County indictment to ten years' imprisonment, subject to NERA, to run concurrent to the Union County sentence. Defendant was awarded 494 days jail credit, from March 21, 2002, to July 27, 2003.
The record does not include either the plea form or the transcript of the Essex County plea proceedings.
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The record does not reflect that any direct appeal was taken by defendant from either the Union or Essex County convictions or sentences. In January 2012, defendant filed a motion in Union County to correct an illegal sentence. Specifically, defendant argued that he was entitled to jail credits in Union County for the time spent in custody in Essex County. On April 9, 2012, the court heard oral argument and denied defendant's motion. In his oral opinion, the motion judge noted that the Supreme Court's recent interpretation of Rule 3:21-8, governing jail credit for pre-sentence custody, was entitled to prospective application only. State v. Hernandez, 208 N.J. 24, 50-51 (2011). The judge also found that no fundamental unfairness resulted from the failure to award jail credits on the Union County indictment.
On appeal, defendant maintains that basic fairness requires that he receive 483 days jail credit toward his Union County sentence for the time he spent in custody in Essex County prior to the resolution of his Union County indictment. He argues that applying the jail credits to his shorter ten-year Essex County sentence, rather than his longer fifteen-year Union County sentence, partially defeats the concurrency of the sentences and effectively increases his sentence by 483 days. In a single argument he states:
POINT I
PRINCIPLES OF FAIRNESS, JUSTICE, AND EQUAL PROTECTION UNDER THE LAW MANDATE AN AWARD OF JAIL CREDITS ON BOTH [DEFENDANT'S] UNION AND ESSEX COUNTY INDICTMENTS FOR TIME SPENT IN JAIL WHILE AWAITING RESOLUTION OF THOSE CHARGES.
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." See also State v. Garland, 226 N.J. Super. 356, 361 (App. Div.) (citing R. 3:21-8), certif. denied, 114 N.J. 288 (1988). Where the rule applies, the credit is mandatory. State v. Grate, 311 N.J. Super. 544, 548 n.3 (Law Div. 1997), aff'd, 311 N.J. Super. 456, 459 (App. Div. 1998). Where the rule does not apply, the court still has discretion to award credit based upon considerations of fairness, justice and fair dealings. Id. at 548-50.
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. In our review, we accord no special deference to a trial judge's interpretation of the law and legal consequences that flow from established facts[.] We review legal issues de novo.
[State v. DiAngelo, 434 N.J. Super. 443, 451 (App. Div. 2014) (alteration in original) (citations and internal quotation marks omitted)].
In Hernandez, supra, the Supreme Court interpreted Rule 3:21-8 as permitting jail credits for multiple charges in different counties if the charges were pending during a defendant's pre-sentence incarceration. 208 N.J. at 47-49. The Court noted that "'R[ule] 3:21-8 expresses the public policy of the State and should be liberally construed.'" Id. at 36 (alteration in original) (quoting State v. Beatty, 128 N.J. Super. 488, 491 (App. Div. 1974)). However, the Hernandez Court expressly recognized that its ruling "may be deemed inconsistent with a prior interpretation of Rule 3:21-8," and that "negotiated pleas and sentences in the 'pipeline' were possibly based on a different understanding of the Rule." Id. at 50-51. The Court therefore provided that its decision would have prospective application, with only limited pipeline retroactivity for "those matters still on direct appeal in which the amount of jail credits was actually questioned or challenged by defendant at sentencing." Ibid; see also State v. Natale, 184 N.J. 458, 492-496 (2005). Pipeline retroactivity allows the court's holding to be applied "to defendants with cases on direct appeal as of the date of [the] decision and to those defendants who raised [the issue] at trial or on direct appeal." Natale, supra, 184 N.J. at 494.
Here, defendant was sentenced in 2003. Accordingly, his application for additional jail credits is not entitled to pipeline retroactivity, and he is thus unable to avail himself of Hernandez's more expansive interpretation of Rule 3:21-8. Moreover, as we have recently explained:
Prior to Hernandez, when a defendant in custody faced multiple charges, the Rule was interpreted to provide credit "only for such confinement as is attributable to the arrest or other detention resulting from the particular offense." State v. Black, 153 N.J. 438, 456 (1998) (citations and internal quotation marks omitted). A defendant sentenced for multiple offenses was afforded credit for presentence custody, which was matched to the criminal offense resulting in confinement. See State v. Carreker, 172 N.J. 100, 115 (2002) (declining credit against a New Jersey sentence as the defendant was already serving a New York sentence and a condition of the transfer to New Jersey for disposition of pending charges was she continue to serve the New York sentence); State v. Hemphill, 391 N.J. Super. 67, 70 (App. Div.) (limiting application of jail credits to the particular offense for which there was confinement or detention), certif. denied, 192 N.J. 68 (2007). Credit for the same days of confinement could not be awarded against more than one sentence; rather, credits were awarded only against the imposed sentence for the offense causing defendant's arrest. See In re Hinsinger, 180 N.J. Super. 491, 499 (App. Div.) (noting Rule 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); State v. Marnin, 108 N.J. Super. 442, 444 (App. Div.) ("But time spent in custody is required to be credited only against the sentence on the charge which brought about that custody."), certif. denied, 55 N.J. 598 (1970); State v. Allen, 155 N.J. Super. 582, 585 (App. Div.) (declining to credit sentences imposed for offenses in different counties, explaining "to give . . . credit . . . in both counties would bestow . . . impermissible double credit"), certif. denied, 77 N.J. 472 (1978), disapproved by Hernandez, supra, 208 N.J. at 49.
[DiAngelo, supra, 434 N.J. Super. at 452.]
Prior to Hernandez, in some instances courts exercised discretion to award jail credit "'based on considerations of fairness, justice and fair dealings.'" Hernandez, supra, 208 N.J. at 37 (quoting Hemphill, supra, 391 N.J. Super. at 70 (granting credit for confinement in Scotland while awaiting extradition on New Jersey charges)). See also Grate, supra, 311 N.J. Super. at 458-59 (applying jail credits even though the defendant's incarceration was "not directly a consequence of the arrest" but "was nevertheless fairly attributable to the indictment on which he was eventually sentenced").
Here, we agree with the motion judge that no fundamental unfairness resulted from the failure to award jail credits on the Union County indictment for the time spent in custody on the Essex County charges. All parties to the Union County plea agreement knew that the jail credits would apply only to the Essex County charges, in accordance with the well-settled interpretation of Rule 3:21-8 then in effect. Both defendant and the State received the precise result that they bargained for. Since the transcripts of the Essex County plea and sentence have not been provided, there is nothing in the record that would suggest a contrary result.
In sum, defendant's 2003 Union County sentence was not illegal. Nor has defendant established that the denial of jail credits on that sentence was fundamentally unfair.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION