STATE OF NEW JERSEY v. OTIS BLUNT, a/k/a OTIS A BLUNT, a/k/a OTIS F. BLUNT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6263-08T26263-08T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

OTIS BLUNT, a/k/a OTIS A.

BLUNT, a/k/a OTIS F. BLUNT,

Defendant-Respondent.

_______________________________________

 

Submitted August 3, 2010 - Decided

Before Judges Graves and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-02-0118.

Theodore J. Romankow, Union County Prosecutor, attorney for appellant (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for respondent (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

The State appeals from the judgment of conviction entered in this matter on June 26, 2009, and challenges the provision of the judgment awarding defendant 471 days of jail credit in the period from January 11, 2008, to April 28, 2009. For the reasons that follow, we affirm.

The appeal arises from the following facts. Defendant was charged under Indictment No. 07-08-0720 with first degree robbery, contrary to N.J.S.A. 2C:15-1, and various other offenses. Defendant was unable to post bail and he was incarcerated in the Union County jail pending a trial on those charges. On December 14, 2007, defendant escaped from the jail. He remained at large until law enforcement officers apprehended him in Mexico City on January 9, 2008. Defendant was then returned to New Jersey on January 11, 2008. He was then incarcerated in a State correctional facility.

Defendant was thereafter charged under Indictment No. 08-02-0118 with third degree escape, contrary to N.J.S.A. 2C:29-5(a). Defendant was tried before a jury on the charges in Indictment No. 07-08-0720 in April 2009, with the exception of the two counts charging hindering his own prosecution, which were severed. On April 29, 2009, the jury found defendant not guilty on all of the charges that were tried. The court then granted the State's motion for dismissal of the severed counts. The court also dismissed another charge.

Defendant remained in jail, however. On May 5, 2009, defendant pled guilty to escape as charged in Indictment No. 08-02-0118. He was sentenced on June 26, 2009, to five years of incarceration. The court awarded defendant 531 jail credits, which included 471 jail credits for the period from January 11, 2008 until April 28, 2009.

On July 29, 2009, the State filed a notice of appeal from the judgment of conviction entered on June 26, 2009. The matter was placed on our Excessive Sentencing Appeal calendar; however, we entered an order dated March 25, 2010, transferring the matter to the plenary calendar.

Defendant argues that the State does not have the right to appeal the award of jail credits because the award of credits at issue here was an exercise of the court's discretion. We disagree.

It is well established that the State may appeal from an illegal sentence. State v. Tavares, 286 N.J. Super. 610, 617 (App. Div.), certif. denied, 144 N.J. 376 (1996). See also State v. Kirk, 243 N.J. Super. 636, 643 (App. Div. 1990) (holding that, "so long as the issue of defendant's sentence is properly before the court, the court may correct an illegal sentence, even by increasing the term" thereof). We are satisfied that the State may appeal where, as in this case, it asserts that the trial court awarded a defendant jail credits to which he is not lawfully entitled.

We turn to the merits of the State's appeal. The State contends that the trial court erred by awarding defendant jail credits for the period from January 11, 2008, through April 28, 2009. We disagree.

Rule 3:21-8 provides that a "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." Under the rule, jail credits are only awarded "for a period of incarceration attributable to the crime for which the sentence is imposed." State v. Hemphill, 391 N.J. Super. 67, 70 (App. Div.), certif. denied, 192 N.J. 68 (2007) (citing In re Hinsinger, 180 N.J. Super. 491, 499 (App. Div.), certif. denied, 88 N.J. 494 (1981)).

We are not convinced that the trial court abused its discretion by awarding defendant jail credits for the period from January 11, 2008, through April 28, 2009. As stated previously, defendant was incarcerated in that period as a result of the charges in Indictment No. 07-08-0720. However, in that time, he also was incarcerated as a result of the pending escape charges.

The State argues that because defendant would have been in jail in the period from January 11, 2008, through April 28, 2009 regardless of whether he had been charged with escape, he is not entitled to jail credits under Rule 3:21-8. However, we have recognized that even though a defendant is not entitled to jail credits under the rule, a court may award such credits "based on considerations of fairness, justice and fair dealings." Hemphill, supra, 391 N.J. Super. at 70 (citing State v. Grate, 311 N.J. Super. 544, 548-50 (Law Div. 1997), aff'd, 311 N.J. Super. 456, 458 (App. Div. 1998)). The award of jail credits in these circumstances is a matter committed to the sound discretion of the sentencing court. Ibid.

Here, the trial court stated in its decision on the record on June 26, 2009, that defendant was entitled to jail credits for the period from January 11, 2008, to April 28, 2009, as a matter of fairness. The court noted that defendant's incarceration in that period was "not solely attributable to the escape charge[.]" Thus, the court correctly determined that defendant was not entitled to credits under Rule 3:21-8. We are convinced, however, that the court had the discretion to award defendant jail credits in the interest of fairness, and the award of credits to defendant was not a mistaken exercise of discretion.

Our decision in Grate supports this conclusion. In that case, the defendant had been released on bail for the charge for which he was being sentenced. Grate, supra, 311 N.J. Super. at 457. The defendant was arrested on another charge and he was unable to post consolidated bail for both offenses. Ibid. The defendant remained in jail until the disposition of the later charge. Ibid. The defendant was tried on that charge and acquitted. Ibid. He sought jail credits for the period of time he was incarcerated on the consolidated bails. Ibid.

The trial court noted that the defendant's incarceration was not "solely attributable to the subject charge[.]" Id. at 458. The court found, however, that the defendant should be awarded jail credits even though he was not entitled to jail credits under the rule. Ibid. We affirmed the trial court's determination observing that, "even if not directly a consequence of the arrest in this case, [the defendant's incarceration] was nevertheless fairly attributable to the indictment on which he was eventually sentenced." Id. at 459.

Here, defendant's incarceration, while related to the pending charges in Indictment No. 07-08-0720, also was "fairly attributable" to the escape charge for which he was being sentenced. Thus, under Grate, the court had the discretion to award defendant jail credits for the time incarcerated on the escape and charges under Indictment No. 07-08-0720.

Our decision in State v. Garlard, 226 N.J. Super. 356 (App. Div. 1988), also supports the award of jail credits in this case. There, the defendant pled guilty to two drug offenses. Id. at 358-59. Before she was sentenced for those offenses, the defendant was arrested and charged with armed robbery. Id. at 359. The defendant was sentenced on the drug charges on January 6, 1986. Ibid. However, she remained in jail on the pending robbery charges until June 25, 1986, when she was released on bail. Ibid. The defendant failed to appear in court on October 14, 1986, and was charged with bail jumping. Ibid.

The defendant pled guilty to bail jumping on January 6, 1987, and the State agreed to the dismissal of the robbery charge. Ibid. On February 6, 1987, the defendant was sentenced for bail jumping. Ibid. The trial court awarded the defendant jail credits from January 6, 1987, reasoning that the bail jumping charge only came into existence on that date, and the defendant's prior incarceration related to the robbery charge. Id. at 360.

The defendant appealed and argued that, although jail credits were not mandated by Rule 3:21-8, credits should have been awarded on equitable grounds. Id. at 360-61. We agreed stating:

A bench warrant was issued on October 14, 1986, and defendant was thereafter incarcerated as a result thereof on November 23, 1986. Incarceration from that date - November 23, 1986 - until the date of sentencing on the bail jumping accusation, February 6, 1987, was directly attributable to defendant's bail jumping offense. Therefore, defendant should not be precluded from receiving jail credit during this time merely because the robbery indictment was still pending and the bail jumping accusation was not filed until January 6, 1987, the date of the plea agreement.

[Id. at 362.]

The circumstances presented in this case are substantially similar. Here, defendant was incarcerated from January 11, 2008, to June 25, 2009. Defendant's incarceration from January 11, 2008, to April 28, 2009, was fairly attributable to the escape charge as well as the charges in Indictment No. 07-08-0720. We are convinced that, under the circumstances, the court did not abuse its discretion when it awarded defendant credits for his incarceration during that period.

 
Affirmed.

(continued)

(continued)

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A-6263-08T2

August 16, 2010