STATE OF NEW JERSEY v. JOHN STASICKY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2929-05T42929-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN STASICKY,

Defendant-Appellant.

_______________________________

 

Submitted June 5, 2007 - Decided

Before Judges Coburn and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 98-12-2285.

Yvonne Smith Segars, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mark P. Stalford, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the December 2, 2005, order of the Law Division, denying his petition for post-conviction relief (PCR). We affirm.

On December 15, 1998, defendant was charged by a Monmouth County Grand Jury under Indictment No. 98-12-2285 with first-degree armed robbery, N.J.S.A. 2C:15-1 (Count One); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Two); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (Count Three). On January 11, 2000, pursuant to the terms of a negotiated plea agreement, defendant pled guilty to Count One in exchange for the State recommending a sentence of ten years with an 85% parole disqualifier, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and dismissal of the remaining two counts of the indictment. The State also agreed that the sentence would run concurrent to any future sentences that may be imposed on convictions for charges then pending in Middlesex and Union Counties.

On June 16, 2000, defendant was sentenced on Count One as agreed by the State, and Counts Two and Three were dismissed. The judgment of conviction reflects that defendant received 441 days of jail credit and 11 days of gap-time credit. Defendant appealed arguing that the sentence was manifestly excessive, unduly punitive, and constituted an abuse of the sentencing judge's discretion. We affirmed. State v. Stasicky, No. A-6613-99T4 (App. Div. May 15, 2001).

On August 4, 2004, defendant filed a pro se petition for PCR. On June 17, 2005, defendant, through assigned counsel, filed an amended petition, arguing that: 1) the imposition of the parole disqualifier was illegal and violated his federal and state constitutional rights; 2) he was not informed that he could be incarcerated for more than the maximum of his base term because of the five-year mandatory NERA period of parole supervision; 3) he was denied effective assistance of trial counsel by counsel not challenging the imposition of the NERA disqualifier; and 4) the judgment of conviction should be amended to include an additional 436 days of jail credit. On December 2, 2005, the PCR judge rendered a decision denying defendant's decision. A confirming order was entered the same day.

On appeal, defendant argues:

POINT I.

THE COURT COMMITTED PLAIN ERROR CAPABLE OF PRODUCING AN UNJUST RESULT BY ONLY AWARDING HALF OF DEFENDANT[']S PREDISPOSITIONAL JAIL CREDITS.

POINT II.

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL BY THE U.S. CONST., AMENDS. VI, XIV,; N.J. CONST. ART. I, PAR. 10.

POINT III.

THE COURT COMMITTED ERROR IN FAILING TO FULLY ARTICULATE ITS FINDING OF FACT AND CONC[LU]SIONS OF LAW.

After considering the record and briefs, we are satisfied that defendant's arguments are without merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Notwithstanding, we add the following comments.

Defendant argues that the PCR judge erred by basing his decision denying additional jail credit on the opinion of a team leader. Defendant contends that the team leader's conclusion that he was not entitled to receive additional jail credit is incorrect. Defendant asserts that he was denied effective assistance of trial counsel because counsel failed to raise the jail credit issue at sentencing. The State counters that defendant was not entitled to the 441 days of jail credit received at sentencing, much less additional jail credit. However, the State acknowledges that defendant is entitled to 81 days of gap-time credit.

We reject defendant's argument that he is entitled to an additional jail credit. Defendant was arrested and incarcerated in Middlesex County on charges emanating out of that county on January 9, 1998. On January 12, 1998, Monmouth County lodged a detainer against defendant on its own charges. Defendant remained incarcerated in Middlesex County on that County's charges continuously until March 27, 2000, when he was sentenced on those charges. Under Middlesex County Indictment No. 98-04-478, defendant received 809 days of jail credit for the period from January 9, 1998, to March 27, 2000. Defendant is not entitled to receive double jail credit for the same period of pre-trial incarceration.

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 the sentence." R. 3:21-8. Jail credit under the rule:

is only permissible for a period of incarceration attributable to the crime for which the sentence is imposed. The credit is given for the term served between the date of arrest and the imposition of sentence. When the rule applies, the credit is mandatory. Where the rule does not apply, the credit may nevertheless be awarded based on considerations of fairness, justice and fair dealings.

[State v. Henphill, 391 N.J. Super. 67, 70 (App. Div. 2007) (internal citations omitted).]

"The credit is impermissible if the confinement is due to service of a prior-imposed sentence or another charge." Id. at 71. The rule does not contemplate granting jail credits twice for the same period of pre-trial incarceration. Here, defendant received the appropriate jail credit against the sentence imposed on the Middlesex County charges and has no vested right to claim the credit again. A denial of jail credit under these facts is not contrary to the principles of fairness, justice, or fair dealings. Id. at 70. However, as conceded by the State, defendant is entitled to gap-time credit for the time he remained incarcerated from the date of sentencing in Middlesex County, March 27, 2000, to the date of his sentencing in Monmouth County, June 16, 2000 (81 days). State v. Franklin, 175 N.J. 456, 462 (2003).

We also reject defendant's argument that he was denied effective assistance of trial counsel. Because defendant was not entitled to jail credit, he cannot meet the second prong of the Strickland test, that is, demonstrate "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, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984).

 
Affirmed.

(continued)

(continued)

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A-2929-05T4

June 28, 2007