STATE OF NEW JERSEY v. LAGRANT GREER

NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0348-08T4



STATE OF NEW JERSEY,

      Plaintiff-Respondent,

v.

LAGRANT GREER a/k/a
SALAAM GREER,

     Defendant-Appellant.
___________________________

           Submitted February 22, 2010 - Decided March 10, 2010

           Before Judges Rodríguez and Reisner.

           On appeal from the Superior Court of New
           Jersey,   Law    Division, Essex  County,
           Indictment No. 99-6-2157.

           Yvonne   Smith  Segars,  Public  Defender,
           attorney for appellant (Sharon A. Quinn,
           Designated Counsel, of counsel and on the
           brief).

           Robert D. Laurino, Acting Essex County
           Prosecutor, attorney for respondent (Luanh
           L. Lloyd, Assistant Prosecutor, of counsel
           and on the brief).

PER   CURIAM

      Defendant LaGrant Greer appeals from a June 5, 2008 order

denying   his   petition   for   post-conviction   relief   (PCR).   We

affirm the decision of the trial judge, but we remand pursuant

to State v. Rue, 
175 N.J. 1 (2002), for consideration of an

additional    issue     that   defendant's       PCR     counsel    should         have

presented on his behalf.

                                      I

     Defendant    was    indicted   in     Essex    County   1999       for    sexual

offenses he allegedly committed in 1998.                  At the time of the

alleged sex offenses, he was on parole from a Hudson County

robbery sentence from 1992.         While on parole, defendant moved to

Georgia.     While living in Georgia he was arrested in 2002 on

unrelated    charges    and    sentenced    to     ten   years     in   prison       in

Georgia.     A warrant was issued in 1998 on the Hudson County

parole violation but it was not enforced until years later.

Early in 2006,1 defendant was extradited from Georgia to New

Jersey on the Hudson parole violation.              While in New Jersey, on

June 6, 2006, he also resolved the 1999 Essex County indictment

by pleading guilty to one count of endangering the welfare of a

                        2C:24-4a.     On    September      29,     2006,      he    was
child.      N.J.S.A.

sentenced to three years in prison on the Essex conviction,

concurrent to the Hudson County sentence he was then serving,

and concurrent to the Georgia sentence.




1
  The record is unclear as to whether the extradition occurred on
February 21 or March 5, 2006.



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        Defendant did not file a direct appeal from the three-year

sentence, but filed a petition for post-conviction relief.                         In a

written    opinion    dated    June    5,    2008,     Judge    Furnari      rejected

defendant's argument that his counsel was ineffective in not

arguing for gap time credits. Citing State v. Hugley, 
198 N.J.

Super. 152, 161 (App. Div. 1985), Judge Furnari concluded that

gap time was not available for time served on an out-of-state

sentence.     Therefore, defendant was not entitled to gap time

credit for time spent in prison in Georgia.                      Citing State v.

Harvey, 
273 N.J. Super. 572, 575-76 (App. Div 1994), the judge

also concluded that defendant was not entitled to time spent in

prison pending trial on the Essex County charges, because his

incarceration at that time was due to the Hudson County parole

detainer.      The    judge    further       found    no     record    support      for

defendant's    claim    that    he    entered        his   guilty     plea    on    the

understanding that he would be entitled to jail credits.

       During the PCR hearing, defendant's counsel2 acknowledged

that defendant had also raised an issue concerning the validity

of an arrest warrant in his pro se PCR petition.                      However, his

counsel     advised    the    PCR    judge    that     she     had    explained      to

defendant that gap time was his strongest issue and that if he

delayed the matter by trying to obtain a copy of the old arrest

2
    A different attorney represented defendant on this appeal.



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warrant, he might "max out" by the time his PCR was heard.

However, counsel also advised the judge that, after she had that

conversation with him, defendant wrote her a letter insisting

that she raise the warrant issue.                 But she did not do so.

                                          II

      On this appeal, defendant again raises the gap time issue,

and   contends   that   his    PCR    counsel         should   have   pursued    the

warrant issue.       Addressing the gap time issue, as it relates to

prison time defendant served in Georgia and in New Jersey, we

first conclude that defendant is procedurally barred by Rule

3:22-4 from raising this claim because it could have been raised

on a direct appeal.       However, we also conclude that defendant's

arguments concerning gap time are without merit and warrant no

                                 R. 2:11-3(e)(2).              We reach the same
extended discussion here.

conclusion   with    respect   to     the         argument   that   defendant   pled

guilty on the understanding that he would receive jail credits.

R. 2:11-3(e)(2).        We affirm on these issues for the reasons

stated in Judge Furnari's cogent opinion.

      The State agrees that, pursuant to State v. Rue, supra, 
175 N.J. at 18-19, PCR counsel should have raised the warrant issue,

and   the    State    consents       to       a    remand    for    that   purpose.

Accordingly, we remand this matter to the trial court to permit

defendant, through his counsel, to challenge the validity of the




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arrest warrant if he still wishes to pursue that issue. We do

not retain jurisdiction.

    Affirmed in part, remanded in part.




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