STATE OF NEW JERSEY v. OSVALDO GUZMAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1634-05T41634-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OSVALDO GUZMAN,

Defendant-Appellant.

________________________________________________________________

 

Submitted March 4, 2009 - Decided

Before Judges Stern and Lyons.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Indictment No.

02-04-0483-I.

Yvonne Smith Segars, Public Defender, attorney

for respondent (John Douard, Assistant Deputy

Public Defender, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for respondent (Simon Louis Rosenbach,

Assistant Prosecutor, on the brief).

PER CURIAM

Defendant was arrested for attempted murder and other charges in January 2002 while on probation and was held without bail on the violations (VOPs) commencing June 2002. He pled guilty to attempted murder and the VOPs in the same month. The probationary terms were revoked as a result of technical violations and the new offense, and defendant was sentenced on the VOPs in March 2003 after the plea to the attempted murder was withdrawn in February 2003. However, defendant remained incarcerated as he had been resentenced on the VOPs with credits.

Defendant subsequently pled guilty to aggravated assault, a lesser included offense to the attempted murder, and the attempted murder and other charges were dismissed upon sentencing in September 2003. He was granted only three days of jail credits under Rule 3:21-8 for the new crime, but received 172 days of gap time credits because the new crime occurred before he was sentenced on the VOPs. See N.J.S.A. 2C:44-5(b)(2).

Defendant argues he is entitled to jail credits before he posted bail (the three days received after the arrest for attempted murder) and for 287 days from June 14, 2002, when he first entered a guilty plea to attempted murder, until March 28, 2003, when he was sentenced on the VOPs. He asserts he was incarcerated on the new charges during this period. Alternatively, he seeks credits for the period between the plea in June 2002 and the plea withdrawal in February 2003. Thus, defendant seeks jail credits for time he claims to be "directly attributable" to the new charges. He also argues that the court should in any event grant the credits as a matter of discretion as the denial of jail credits "unfairly prolongs defendant's confinement," and contends that if he has already served the maximum term before receiving the credits, "the credits must be charged against his term of parole supervision." He "maxed out" on the aggravated assault conviction in December 2007.

As already noted, defendant insists his incarceration following his June 2002 arrest to his March 2003 sentencing on the VOPs was "directly attributable" to the new charges for purposes of jail credits under Rule 3:21-8. See, e.g., State v. Allen, 155 N.J. Super. 582 (App. Div.), certif. denied, 77 N.J. 472 (1978). However, we need not address the dispute as to whether bail was revoked on the attempted murder charge when defendant first entered a guilty plea on June 17, 2002, or at the arraignment conference on June 14, 2002, as shown on Promis/Gavel and jail records. On that basis he would have been in custody on the new charges thereafter, and because he was not readmitted to bail after the withdrawal of his plea, would be entitled to credits until March 2003 when he started to serve the sentence on the VOPs. But the judge found and the State argues, both that the records are wrong and defendant urged there be no revocation of bail so he could be released on bail when the VOPs were resolved. The dispute need not be resolved because defendant has fully served his sentence and the issue is moot.

We reject defendant's contention that the earned jail credits should reduce the balance of his parole supervision on the aggravated assault sentence. The period of parole supervision under the No Early Release Act, N.J.S.A. 2C:43-7.2, was designed to have supervision post incarceration while on parole for a fixed period of time. In fact, as explained to defendant when he entered his guilty plea to attempted murder and again on the aggravated assault, he could be returned to prison for the remainder of the period of parole supervision even if he had "maxed out" before being placed on parole.

Jail credits reduce the custodial portion of a sentence, not the period of parole, see Mastapeter, supra, 290 N.J. Super. at 64; Booker v. N.J. State Parole Bd., 265 N.J. Super. 191, 207 (App. Div. 1993), aff'd, 136 N.J. 257 (1994). Compare State v. Rosado, 131 N.J. 423, 428 (1993) (parole time results in jail credits on resentencing following a violation of probation). Accordingly, jail credits cannot reduce the remaining period of parole supervision. If the defendant's parole is revoked, jail credits can be considered with respect to the remaining sentence to be served in custody. See Glover v. N.J. State Parole Bd., 271 N.J. Super. 420, 422-424 (App. Div. 1994).

 
The appeal is dismissed as moot.

Defendant's brief, filed on July 31, 2007, so advises us. Thus, the matter was moot before the State's responding brief was filed in January 2008. We regret that the case was not calendared until March 2009. Defendant could have moved for acceleration or other relief when the case was removed from the Sentence Oral Argument calendar in May 2007, when his brief was filed, or otherwise. We had remanded for consideration of the credit issue in March 2005 and on July 28, 2005, the sentencing judge ordered "that there is no need to amend the Judgment of Conviction; the defendant was awarded the correct number of jail credits as set forth in the Judgment of Conviction dated September 8, 2003."

On July 24, 2003, defendant moved for bail pending appeal on the VOPs so he could be released. At his plea and sentencing on September 8, 2003, and at a hearing on September 15, 2003, the jail credit issue was considered at length. Although he was denied jail credits for any period after January 2002 when bailed out following the attempted murder arrest, at the hearing on September 15, 2003 the judge noted that defendant's bail had been revoked between the time he pled guilty to attempted murder and the VOPs in June 2002 but only the VOPs remained revoked after the plea was withdrawn in February 2003. We do not understand why jail credits were not awarded on the aggravated assault for that period, even though such credits were given on the VOPs.

The remedy in a case like this is to move to withdraw the plea. We have held that if defendant thought he would get credits he does not deserve or receive, he can move to withdraw a plea because it wasn't intelligently or voluntarily entered. See State v. Mastapeter, 290 N.J. Super. 56, 61 (App. Div.), certif. denied, 146 N.J. 569 (1996).

(continued)

(continued)

5

A-1634-05T4

March 18, 2009