STATE OF NEW JERSEY v. CARL WORTHINGTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5317-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARL WORTHINGTON,

Defendant-Appellant.

________________________________________

December 28, 2010

Submitted November 15, 2010 - Decided

Before Judges Kestin and Newman.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 99-11-1763.

Yvonne Smith Segars, Public Defender, attorney for appellant (Susan R. Bohrod, Designated Counsel, on the brief).

EdwardJ. De Fazio, Hudson County Prosecutor, attorney for respondent (Loren A. Youmans, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Carl Worthington, appeals from an order denying his petition for post-conviction relief. The application raised questions of effective assistance of counsel bearing upon custodial credits to which defendant claimed he was entitled. The trial court concluded that defendant had made no prima facie showing of ineffectiveness and that an evidentiary hearing was not required in that connection. The court also concluded that the custodial credit issue was without merit, i.e., that defendant had received, or would receive before his release, all of the credits to which he was entitled. The order denying post-conviction relief was entered on February 19, 2009.

On appeal, defendant presents the following arguments for our consideration:

POINT I

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AND POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED.

POINT II

THE POST-CONVICTION RELIEF COURT MISAPPLIED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF AND NOT AWARDING DEFENDANT DISCRETIONARY JAIL CREDITS.

POINT III

DEFENDANT HAS SUBMITTED PRIMA FACIE EVIDENCE REQUIRING THAT HE BE GRANTED AN EVIDENTIARY HEARING ON POST-CONVICTION RELIEF.

We focus on the procedural background of the matter. Fulfilling the terms of a plea agreement dated July 19, 2004, defendant, on that date, pled guilty to first-degree robbery charged in Hudson County indictment 99-11-1763. The plea agreement called for the crime to be treated as one of the second degree for the purposes of sentencing, with a dismissal of five related charges. The sentence imposed on September 24, 2004 reflected the plea agreement: defendant was to serve eight years in prison, eighty-five percent without parole, and on release was subject to five years of parole supervision. The prison term was "to be served concurrently with sentence in Bergen County and Federal Sentence." The judgment of conviction specified "credit for time spent in custody" of eighteen days for the period from August 14, 1999 to August 31, 1999, and 180 days for the period from March 29, 2004 to September 24, 2004.

On March 17, 2009, almost a month after the entry of the order denying post-conviction relief which is the subject of this appeal, the trial court entered an amended judgment of conviction, specifying the same term of imprisonment, but providing a different, enhanced, paradigm of credits for time spent in custody: eighteen days for the period from August 14, 1999 to August 31, 1999; 1,635 days for the period from September 24, 2004 to March 16, 2007; and an additional "gap- time credit" of 343 days for time spent in custody during the period from October 17, 2003 to September 23, 2004. Although the amended judgment of conviction was entered nearly a month after the instant order denying post-conviction relief, that amended judgment has been made part of the record in this appeal.

By the time defendant was sentenced on the Hudson County indictment, on September 24, 2004, he had already entered a guilty plea to Bergen County indictment 98-12-2431, in respect of which he had been sentenced on October 17, 2003 to an eight-year imprisonment with eighty-five percent parole ineligibility. It is undisputed that, following the imposition of sentence in Bergen County, defendant was not transferred to Hudson County for proceedings on the indictment there. Rather, he was returned to Tennessee, where he had been sentenced to an eight-year term of imprisonment in July 2002. Defendant was subsequently returned to Hudson County from Tennessee on a detainer. As we have noted, the Hudson County judgment of conviction was entered on September 24, 2004 after a motion to dismiss that indictment had been made and withdrawn. The motion was premised on a contention that the State of New Jersey's failure to bring defendant to trial within 180 days violated the Interstate Agreement on Detainers.

Defendant contends in the instant matter, based upon the procedural background we have recounted, that he is entitled to eleven months of additional jail credit, and that 180 days of jail credit provided in the initial judgment of conviction "was inexplicably taken from [him] on March 17, 2009," in the amended judgment of conviction entered some four-and-one-half years after the initial judgment of conviction. We have sketched out chronologically the various jail credits at issue and conclude that neither of these arguments has merit.

The contention of entitlement to eleven additional months of jail credit is based upon the premise that, after defendant was sentenced in Bergen County, on October 17, 2003, he should have been turned over to Hudson County to be arraigned on the charges there, rather than being sent back to Tennessee. Defendant was returned from Tennessee to Hudson County in March 2004, where the guilty plea in this matter was entered some four months later, followed by the judgment of conviction three months after that, on September 24, 2004. The amended judgment of conviction clearly provides for a gap-time credit of 343 days, the eleven months contended for between October 17, 2003 and September 24, 2004. Therefore, defendant has received, under the gap-time rubric, the eleven months of jail credit to which he claims entitlement, and the basis of his claim of ineffective assistance of counsel is moot.

The 180 days that defendant claims was taken from him in the amended judgment of conviction is part of the same 343-day period for which the gap-time credit was given. The original judgment of conviction specifies that the 180-day period ran from March 29, 2004 to September 24, 2004. The gap-time credit reflected in the amended judgment of conviction runs from October 17, 2003 to September 23, 2004. Clearly, defendant has received credit for that time period. He is entitled to the credit as a matter of fundamental fairness, but he cannot receive it twice for the same period, once as a general jail-time credit and again as a gap-time credit. The designation of gap-time credit was clearly warranted, as the period reflected is between the Bergen County and Hudson County convictions.

For these reasons, we conclude that Judge DePasquale was correct to deny defendant's post-conviction relief petition for the reasons he articulated. Defendant had simply failed to establish any entitlement to the underlying relief he sought. The difference between the ways in which jail-time and gap-time credits are administered adds no persuasive weight to defendant's arguments on appeal.