STATE OF NEW JERSEY v. KWASI SEKOU MUHAMMAD

NOT FOR PUBLICATION WITHOUT THE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-Respondent,

v.

KWASI SEKOU MUHAMMAD,

f/k/a MICHAEL WINSTEAD, a/k/a

SALOME GREEN, MUSHACK GREENE,

MICHAEL MEYERS, SAMAAD WHITE

and SAMAAD JONES,

Defendant-Appellant.

____________________________

May 23, 2014

Before Judges Simonelli and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-01-0315.

Kwasi Sekou Muhammad, appellant pro se.

Carolyn A. Murray, Acting Essex County Prosecutor,attorney forrespondent (Stephen A.Pogany, SpecialDeputy AttorneyGeneral/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Kwasi Sekou Muhammad appeals from the trial court's denial of his request for additional jail credits. We reverse and remand for entry of an amended judgment of conviction (JOC).

We derive the following facts from the record. Defendant was arrested on October 26, 1999, and released on December 4, 1999. On December 21, 1999, he was indicted under Indictment No. 99-12-3727 for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); third-degree possession with intent to distribute a CDS, N.J.S.A. 2C:35-5b(3); third-degree possession of a CDS within 1,000 feet of a school, N.J.S.A. 2C:35-7; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and second-degree possession of a weapon while possessing a CDS, N.J.S.A. 2C:39-4.1.

Defendant was arrested on March 29, 2000, and released on May 16, 2000. On May 22, 2000, he was indicted under Indictment No. 00-05-1353 for third-degree possession of a CDS, N.J.S.A. 2C:35-10a(1); third-degree possession with intent to distribute a CDS, N.J.S.A. 2C:35-5b(3); and third-degree possession of a CDS within 1,000 feet of a school, N.J.S.A. 2C:35-7.

Defendant was arrested on July 12, 2000, and released on July 16, 2000. He was indicted under Indictment No. 00-08-0968A for third-degree distribution of a CDS, N.J.S.A. 2C:35-5; third-degree possession of a CDS within 1,000 feet of a school, N.J.S.A. 2C:35-7; and the disorderly-persons offense of resisting arrest, N.J.S.A. 2C:29-2.1

Defendant was arrested on July 19, 2000, and released on July 22, 2000. On February 6, 2001, he was indicted under Indictment No. 01-02-0553 for third-degree possession of a CDS, N.J.S.A. 2C:35-10a(1); third-degree possession with intent to distribute a CDS, N.J.S.A. 2C:35-5b(3); third-degree possession of a CDS within 1,000 feet of a school, N.J.S.A. 2C:35-7; and fourth-degree resisting arrest, N.J.S.A. 2C:29-2.

Defendant was arrested on February 22, 2001. On January 25, 2002, he was indicted under Indictment No. 02-01-0315 for second-degree burglary, N.J.S.A. 2C:18-2; first-degree robbery, N.J.S.A. 2C:15-1; three counts of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) and (2); two counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; two counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; two counts of first-degree attempted murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1; and fourth-degree resisting arrest, N.J.S.A. 2C:29-2.

While in custody awaiting trial on the charges in Indictment No. 02-01-0315, defendant pled guilty to various charges under the prior indictments. In July 2, 2001 JOCs for the prior indictments, the court imposed an aggregate three-year term of imprisonment with a twenty-one-month period of parole ineligibility. In the JOC for Indictment No. 00-08-0968A, the court awarded defendant five days of jail credit from July 12, 2000 to July 16, 2000, and one hundred and thirty days of jail credits from February 22, 2001 to July 1, 2001,2 which were applied to the front end of his aggregate sentence in accordance with Rule 3:21-8.

Following a jury trial, defendant was convicted under Indictment No. 02-01-0315 on several counts. In an October 25, 2002 JOC, the court imposed a ten-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, to run consecutively to his three-year sentence. The court awarded defendant one hundred and thirty days of jail credits from February 22, 2001 to July 1, 2001. The jail credits were later retracted after it was determined that defendant had already received them on Indictment No. 00-08-0968A.

Defendant filed a motion, seeking an additional one hundred and thirty days of jail credits on Indictment No. 02-01-0315. The court denied the request because defendant had already received those credits on Indictment No. 00-08-0968A. This was error.

On appeal, defendant relies on State v. Hernandez, 208 N.J. 24 (2011), to argue that he is entitled to the additional jail credits on Indictment No. 02-01-0315; however, Hernandez does not apply retroactively to sentences imposed prior to June 9, 2011. Id. at 50-51. Prior to Hernandez, jail credits were granted only for the particular offense for which there was incarceration or detention. State v. Black, 153 N.J.438, 456 (1998); Pressler & Verniero, Current N.J. Court Rules, comment 1.1 on R.3:21-8 (2014). Jail credits were not to be awarded against custodial sentences on wholly unrelated charges. State v. Hill, 208 N.J. Super.492, 495 (App. Div.), certif. denied, 104 N.J.412 (1986). A defendant may only receive jail credit for "any pre-sentence time served that is solely attributable to the offense for which he is being sentenced." State v. Lawlor, 222 N.J. Super.241, 245 (App. Div. 1988).

Defendant was incarcerated on Indictment No. 02-01-0315 for one hundred and thirty days on charges wholly unrelated to the charges in Indictment No. 00-08-0968A. Thus, the jail credits for that period should have been applied to Indictment No. 02-01-0315. Accordingly, we remand to the trial court to enter amended JOCs removing the one hundred and thirty days of jail credits from the JOC for Indictment No. 00-08-0968A and applying those jail credits to the JOC for Indictment No. 02-01-0315.

Reversed and remanded from the entry of amended JOCs in accordance with this opinion.

1 The record does not reveal the date of this indictment.

2 The court incorrectly put July 2, 2001 on the JOC.