STATE OF NEW JERSEY v. CLIFFORD RANSOM, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

CLIFFORD RANSOM, JR., a/k/a

CLIFFORD RANSOM,

Defendant-Respondent.

July 31, 2014

Before Judges Maven and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment No. 06-11-00449.

Richard T. Burke, Warren County Prosecutor, attorney for appellant (Dit Mosco, Assistant Prosecutor, of counsel and on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

The State appeals from the Law Division's sentence awarding defendant 412 days of gap-time credits for the period April 16, 2009 to June 1, 2010. While we agree with the State that defendant should not have received any gap-time credits, we reject the State's position that defendant is ineligible to receive jail credits for the same time period. We therefore vacate the trial court's order awarding defendant gap-time credits and remand for amendment of the judgment of conviction to record the correct award of jail credits.

I.

On September 21, 2007, defendant was sentenced to a two-year term of probation in Warren County, following his conviction for third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). On April 10, 2009, defendant was arrested and charged in Pennsylvania with various offenses which occurred on March 17, 2009, including attempted homicide and aggravated assault. Four days later, on April 14, 2009, the Warren County Probation Department charged defendant with violation of probation (VOP), based on the Pennsylvania charges and other matters of non-compliance. On April 16, 2009, a bench warrant issued for defendant's arrest when he failed to appear in court.

On June 1, 2010, defendant pled guilty in Pennsylvania to the charges there, and the court sentenced him to a six-year term of incarceration. On August 30, 2012, defendant pled guilty in Warren County to the VOP charge. On September 17, 2012, the court terminated defendant's probation and sentenced him to three years in prison. The judge awarded defendant 412 days of gap-time credit, from April 16, 2009, the date the bench warrant was issued in New Jersey, until June 1, 2010, the date of defendant's sentence on his Pennsylvania charges. This appeal followed,1 with the State arguing that the sentencing judge erred in awarding defendant any gap time credits, because gap-time credit may be based only on a sentence imposed in New Jersey. State v. Carreker, 172 N.J. 100, 111 (2002). Defendant concedes he was not entitled to receive gap-time credit but argues he should have received 412 days of jail credit. We agree.

II.

"A challenge to an award or denial of jail credits, as inconsistent with Rule 3:21-8, constitutes an appeal of a sentence 'not imposed in accordance with law.'" State v. DiAngelo, 434 N.J. Super. 443, 451 (App. Div. 2014) (quoting State v. Rippy, 431 N.J. Super. 338, 347 (App. Div. 2013), certif. denied, 217 N.J. 284 (2014)). The award of gap-time and jail credits raises issues of law that we review de novo. See State v. L.H., 206 N.J. 528, 543 (2011) (applying de novo standard in gap-time credit case); State v. Hernandez, 208 N.J. 24, 48-49 (2011) ("[T]here is no room for discretion in either granting or denying [jail] credits.").

Gap-time credits are governed by the provisions of N.J.S.A. 2C:44-5(b). The gap time statute "is triggered when a three-pronged threshold test is met: (1) a defendant has already been sentenced to a term of imprisonment, (2) defendant is subsequently sentenced to another term of imprisonment, and (3) the subsequent sentence is for an offense that occurred prior to the imposition of the first sentence." State v. Richardson, 208 N.J. Super. 399, 414 (App. Div.) certif. denied, 105 N.J. 552 (1986). The term "gap time" is used "because the credit applies to the gap between the two sentences." State v. McIntosh, 346 N.J. Super. 1, 4, (App. Div. 2001), rev'd on other grounds, 172 N.J. 353 (2002). However, gap-time credits are permissible only for sentences in the same state. See Carreker, supra, 172 N.J. at 111 (holding that a defendant could not receive gap-time credit in New Jersey between the dates that a New York court and a New Jersey court sentenced a defendant for different offenses). The Court in Carreker reasoned that "by including the term 'aggregate' in the gap-time provision" of N.J.S.A. 2C:44-5(b)(2), "the legislature intended that provision to relate solely to in-state sentences." Id. at 111.

Regarding jail credits mandated by Rule 3:21-8, the Hernandez Court held that "defendants are entitled to precisely what the Rule provides: credits against all sentences 'for any time served in custody in jail or in a state hospital between arrest and the imposition of sentence' on each case." Hernandez, supra, 208 N.J. at 28 (quoting Rule 3:21-8). In Hernandez, the defendant sought "jail credit for time spent in presentence custody on multiple charges," but was not "seeking jail credits for time accrued after imposition of a custodial sentence." Id. at 45. The Court noted, "[w]e 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 Court concluded "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.

We recently applied the principles set forth in Hernandez when examining whether jail credits for pre-adjudication custody also apply against custodial sentences imposed upon a conviction for VOP. In DiAngelo, the defendant, while on non-custodial probation, was arrested and detained on new criminal charges. DiAngelo, supra, 434 N.J. Super. at 447. While in jail, she was served with a VOP statement of charges recommending revocation of her probationary sentence and imposition of a custodial term for the prior conviction. Id. at 446-47. The defendant remained in custody until sentencing, at which point she requested jail credits not only against the sentence for the new charges but also for the VOP sentence. Ibid. The State opposed the request, arguing that "jail credit applied only against the sentence on the new charges because defendant was [confined] solely on the new offense[,]" and the custodial sentence for the VOP was a "resentence" of her prior offense for which jail credits were not applicable. Ibid. The judge agreed with the State, concluding the VOP sentence was not a sentence to which the Rule applied. Ibid.

In deciding DiAngelo, we held that "to provide consistency in awarding jail credits to achieve fairness in sentencing to all[,]" id. at 460, the defendant was entitled to jail credits for the period of pre-adjudication confinement against the VOP sentence and the sentence for the new offense. Id. at 461; see also Hernandez, supra, 208 N.J. at 36. We narrowed our review in DiAngelo to a "defendant who is in custody after commission of another criminal offense while on probation, and against whom a summons for a VOP [had] been issued rather than an arrest warrant." Id. at 459-60.

Additionally, in DiAngelo, the VOP statement of charges issued while the defendant was in jail on new charges. Id. at 449. We rejected the defendant's assertion that jail credits began to accrue upon her arrest for the new charges, reasoning that credit should not be awarded for a period of time preceding the filing of the VOP statement of charges. Id. at 461. Instead, we concluded "[t]he serving of the statement of charges to a defendant who is confined [on an indictable offense] triggers the award of jail credits for the period of pre-adjudication confinement against the VOP sentence and the sentence for the new offense." Id. at 461. Here, like in DiAngelo, defendant had multiple charges and multiple sentencing dates.

In Hernandez, the Court provided guidance on how credits should be calculated "with respect to multiple charges." Hernandez, supra, 208 N.J. at 50. The Court clarified that "once the first sentence is imposed, a defendant awaiting imposition of another sentence accrues no more jail credit under Rule 3:21-8." Ibid. Rather, the defendant is only entitled to gap-time credit under N.J.S.A. 2C:44-5(b). Id. at 38.

Neither Hernandez nor DiAngelo specifically addressed the question here presented: that is, whether a defendant, initially arrested and held in another state on a charge, who is then served with a VOP for committing a new offense, may receive jail credits not only against the sentence imposed for the new offense, but also for the custodial term imposed for the VOP. Like in DiAngelo, "we acknowledge neither the statutory scheme governing probationary sentences nor Rule 3:21-8 cedes a direct answer to this question." DiAngelo, supra, 434 N.J. Super. at 454.

If defendant had been incarcerated in New Jersey, as opposed to Pennsylvania, our holding in DiAngelo would have been on point and controlling, and would have required the award of jail credits. See id. at 447. The State has failed to present any convincing arguments for restricting jail credits to in-state pre-adjudication confinement. The State's reliance on Carreker, supra, 172 N.J. 100 is misplaced. Rather, the Hernandez Court discussed the Carreker case only as it applied to Hernandez's request that her properly awarded gap-time credits be converted to jail credits so as to reduce her mandatory period of parole ineligibility. In rejecting this argument, the Court distinguished jail credits from gap-time credits. Hernandez, 208 N.J. at 26-27. Carreker, held that gap-time credits do not apply to any time spent on a sentence in a foreign state, including time spent in New Jersey on an out-of-state sentence pursuant to the Interstate Agreement on Detainers. Carreker, supra, 172 N.J. at 111. Carreker is not controlling here, where defendant was not serving a sentence in Pennsylvania, but instead was held in pre-trial confinement.

Even prior to Hernandez, other cases held that if a New Jersey defendant was arrested in another state on a New Jersey fugitive warrant and spent time in that state solely attributable to the New Jersey charges, the defendant was entitled to jail credits, whether or not he or she fought extradition. State v. Johnson, 167 N.J. Super 64 (App. Div. 1979); State v. Lynk, 166 N.J. Super. 400 (Law Div. 1979); see also State v. Hemphill, 391 N.J. Super. 67, 70-71 (App. Div. 2007) (defendant awarded credit for time spent in prison in Scotland before extradition back to New Jersey).

We discern no basis why the fact defendant was confined in another state should matter regarding the award of jail credits. We further note awarding jail credits to defendant in this case would promote the "paramount goals" to be achieved in criminal sentencing, "uniformity and equality." DiAngelo, supra, 434 N.J. Super. at 459 (citing Hernandez, supra, 208 N.J. at 48-49). Consistent with the holdings in Hernandez and DiAngelo, we conclude that defendant is not disqualified from receiving jail credits from his New Jersey sentence because he was in custody in another state.

Accordingly, we find the court correctly determined defendant was entitled to credit on his Warren County sentence for VOP, for his confinement in Pennsylvania before his VOP charge was adjudicated; however, pursuant to Hernandez and DiAngelo, these credits must be changed from gap-time credits to jail credits. We therefore remand this matter for recalculation of defendant's jail credits for the VOP, for the time period from April 14, 2009, the date the VOP charges issued, until June 1, 2010, when defendant was sentenced for the Pennsylvania charges, and for the entry of an amended judgment of conviction awarding the correct amount of jail credits and deleting the award of gap-time credits.

Affirmed as modified. Remanded for entry of an amended judgment of conviction. We do not retain jurisdiction.

1 On September 21, 2012, the sentencing judge entered an order staying sentence pending appeal, with defendant to remain on probation until the appeal is concluded.