STATE OF NEW JERSEY v. AMERICO RODRIGUEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2045-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AMERICO RODRIGUEZ,

Defendant-Appellant.

__________________________________________________

March 21, 2013

Submitted February 26, 2013 - Decided

Before Judges Messano and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-05-1836 and 02-07-2644.

Americo Rodriguez, appellant pro se.

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Magdalen Czykier, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Americo Rodriguez appeals from the Law Division's order of October 27, 2011, that denied his motion for additional jail credits pursuant to Rule 3:21-8.1 On January 25, 2002, defendant was arrested and charged with two separate robberies, and the Essex County grand jury subsequently returned two indictments. The first, Indictment No. 02-05-1836, alleged crimes committed on January 24, 2002; the second, Indictment No. 02-07-2644, alleged crimes committed on January 18, 2002. On March 5, 2003, defendant pled guilty to both indictments, as amended, charging him with two robberies in the second-degree. N.J.S.A. 2C:15-1. He was sentenced to two consecutive ten-year terms, each with an eighty-five percent parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.

The judgment of conviction on Indictment No. 02-05-1836 reflects defendant received four days of jail credit, from January 25, 2002, to January 28, 2002. The second judgment of conviction on Indictment 02-07-2644 does not provide for any jail credit. During colloquy with defense counsel at sentencing, the judge explained that, because a parole violation detainer was lodged against defendant on January 29, 2002, he was entitled to only four days of jail credit.

Defendant's appeal was limited to the excessive nature of his sentence, and no argument was presented regarding jail credits. We affirmed the sentence as imposed. State v. Rodriguez, No. A-4527-03 (App. Div. Mar. 8, 2005). Defendant filed a petition for post-conviction relief (PCR), which was denied by the trial court and affirmed on appeal. State v. Rodriguez, No. A-2057-07 (App. Div. Mar. 27, 2009). Our opinion does not indicate that defendant raised any issue regarding jail credits. Defendant's petition for certification was denied by the Supreme Court. State v. Rodriguez, 199 N.J. 541 (2009).

Defendant filed a second pro se PCR petition, arguing his sentence was illegal because his plea was not entered knowingly and voluntarily. On March 22, 2010, Judge Joseph C. Cassini, III, who was not the judge who accepted defendant's plea or sentenced him, denied the petition.

Defendant filed a third pro se petition for PCR. He alleged that appellate counsel provided ineffective assistance because she did not pursue his claim of ineffective assistance of trial counsel. Judge Cassini denied the petition in an extensive written opinion dated March 23, 2011, finding defendant's claims were "baseless and frivolous." Defendant again appealed, and we summarily affirmed Judge Cassini's decision. State v. Rodriguez, No. A-1207-11 (App. Div. Aug. 16, 2012).

On August 26, 2011, defendant filed a pro se motion to amend his judgment of conviction and award additional jail credits. In a written letter decision, Judge Cassini concluded that defendant was entitled only to four days of jail credits, i.e., from January 25, 2002, when he was arrested for the robbery charges, to January 29, 2002, when the parole detainer was lodged against him. Defendant subsequently filed this appeal.

Before us, defendant presents a single point:

THE COURT'S DETERMINATION IN DENYING APPELLANT'S MOTION TO AWARD JAIL CREDITS WAS CONTRARY TO EQUAL PROTECTION AND FUNDAMENTAL FAIRNESS

We have considered this argument in light of the record and applicable legal standards. We affirm.

Despite the fact that defendant never raised this issue during his direct appeal or his various PCR applications, we choose to consider the merits of defendant's claim, recognizing that "[a] motion may be filed . . . at any time . . . [seeking] correcti[on of] a sentence not authorized by law . . . ." R. 3:21-10(b). In State v. Harvey, 273 N.J. Super. 572, 573-74 (App. Div. 1994), the defendant was arrested on drug offenses, and three days later a parole detainer was lodged against him. The judge granted him only three days of jail credit upon sentencing. Id. at 574. The defendant argued he was entitled to jail credits for all the time he remained in custody until the sentence of the drug charges was imposed. Ibid. We concluded:

Although [Rule] 3:21-8 provides that a defendant shall receive credit for any pre-sentence custody, once a parole warrant was lodged defendant was no longer confined solely as a result of the new charges. Even if defendant had been able to post bail on the new charges, he would have remained in custody. N.J.S.A. 30:4-123.62a(2) provides that, "[n]o parolee held in custody on a parole warrant shall be entitled to release on bail." Therefore, after the detainer was lodged defendant's incarceration was attributable to the violation of parole.

[Id. at 574-75.]

Similarly, in State v. Black, 153 N.J. 438, 442 (1998), the judgment of conviction provided defendant with jail credits from June 26, 1995, the date a bench warrant was issued on the charge of absconding from parole, to June 28, 1995, the date the parole detainer was filed. He subsequently pled guilty to the absconding charge and sought credit for the full amount of time he remained in custody until his sentencing. Ibid.

The Black court recognized that at the time, "[n]either the Criminal Code nor the Rules address[ed] the propriety or permissibility of giving an inmate jail credit against more than one sentence. However, New Jersey courts have adopted a negative view of that practice." Id. at 456-57. Nevertheless, in affirming the grant of limited jail credits, the Court held: "[W]hen a parolee is taken into custody on a parole warrant, the confinement is attributable to the original offense on which the parole was granted and not to any offense or offenses committed during the parolee's release." Id. at 461.

Finally, in State v. Hernandez, 208 N.J. 24, 45 (2011), the court considered the fate of two defendants who sought "jail credit for time spent in presentence custody on multiple charges," but who were not "seeking jail credits for time accrued after imposition of a custodial sentence." The Court noted, "We have not previously addressed these circumstances or the meaning of Rule 3:21-8 when a defendant who is incarcerated awaiting disposition on charges is also held awaiting disposition on other charges." Ibid. The Hernandez court concluded that "jail credits, which are earned prior to the imposition of the first custodial sentence, are to be awarded with respect to multiple charges. Again, once the first sentence is imposed, a defendant awaiting imposition of another sentence accrues no more jail credit under Rule 3:21-8." Id. at 50. The Court also held that its "opinion shall apply only prospectively to sentences imposed as of tomorrow, except for those matters still on direct appeal in which the amount of jail credits was actually questioned or challenged by defendant at sentencing." Id. at 51.

The Hernandez court cited to, distinguished, but did not disturb, the holding in Black. Id. at 42-43. Of course, the facts presented in this appeal are similar to those presented in Black and in Harvey, which we view as controlling. As a result, defendant was not entitled to any additional jail credits after January 29, 2002, when he remained in custody on the parole detainer.

Affirmed.

1 Although no order is contained in the appellate record, we overlook this procedural infirmity and treat the letter decision of that date as the court's final order.