STATE OF NEW JERSEY v. TYRONE COLEMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2065-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYRONE COLEMAN,

Defendant-Appellant.

___________________________

April 24, 2014

Submitted February 26, 2014 Decided

Before Judges Simonelli and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 03-10-0381.

Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Tyrone Coleman appeals from the May 5, 2011 Law Division order, which denied his petition for post-conviction relief (PCR) grounded on an illegal sentence. We affirm defendant's sentence, but remand for the entry of an amended judgment of conviction (JOC) awarding him 131 days of gap-time credits for time served on a juvenile sentence.

The facts are undisputed. On July 2, 2003, defendant, then a juvenile, was arrested in connection with an armed robbery and incarcerated in a juvenile detention center. While there, on July 16, 2003, he committed and was charged with simple assault, N.J.S.A. 2C:12-1a. On September 19, 2003, the Family Part judge imposed a six-month term of incarceration on the assault charge. The sentence ended on January 27, 2004.

The court waived defendant to adult criminal court to be charged in connection with the robbery. On October 23, 2003, a grand jury indicted defendant for with first degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a; first-degree robbery, N.J.S.A. 2C:15-1; second-degree burglary, N.J.S.A. 2C:18-2; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b.

On March 15, 2004, defendant pled guilty to first-degree robbery in exchange for the State's agreement to recommend a sentence in the second-degree range of five years subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On April 30, 2004, the court sentenced defendant to a five-year term of imprisonment subject to NERA. On May 12, 2004, the court entered a JOC imposing the sentence and awarding defendant 121 days of jail credit calculated as follows: (1) twenty-eight days from August 22, 2003 to September 18, 2003; and (2) ninety-three days from January 28, 2004 to April 29, 2004.

In 2007, defendant filed a motion for additional jail credit for time served from June 2003 to December 2003. The court granted the request, in part, and entered an amended JOC on September 12, 2007, awarding defendant 172 days of jail credit calculated as follows: (1) fifty-one days from July 3, 2003 to August 22, 2003; (2) twenty-eight days from August 22, 2003 to September 18, 2003; and (3) ninety-three days from January 28, 2004 to April 29, 2004.

On July 14, 2009, defendant filed a PCR petition, arguing his sentence was illegal based on an incorrect calculation of jail credit.1 He requested an additional 131 days for time served on the juvenile sentence from September 19, 2003 to January 27, 2004, for a total of 303 days of jail credit. The court denied the petition, finding it was barred by Rule 3:22-5 based on the prior adjudication of jail credit. Addressing the merits, the judge concluded the sentence was legal because defendant was not entitled to an additional 131 days of jail credit; he was only entitled to 172 days, which the judge recalculated as follows: (1) seventy-nine days from July 2, 2003 to September 18, 2003; and (2) ninety-three days from January 28, 2004 to April 29, 2004.

On appeal, defendant contends for the first time that he is entitled to 131 days of gap-time credit for time served on the juvenile sentence from September 19, 2003 to January 27, 2004. Although we generally decline to address issues not raised before the trial court, we will do so in the interests of justice. State v. Robinson, 200 N.J. 1, 20 (2009)

The PCR judge was correct that defendant was not entitled to the additional days as jail credit. N.J.S.A. 2C:44-5b(2); R. 3:21-8. However, we conclude that defendant was entitled to those days as gap-time credit. Our Supreme Court has held that

[a] defendant who is sentenced to terms of imprisonment for two separate offenses imposed on different sentencing dates is entitled to gap-time credit for the period he serves from the date of the first sentence to the date of the second sentence where both offenses occurred before the first sentence.

[State v. Franklin, 175 N.J. 456, 459 (2003).]

Entitlement to gap time credit requires the defendant to show that: (1) he has been sentenced previously to a term of imprisonment, (2) he is sentenced subsequently to another term, and (3) both offenses occurred prior to the imposition of the first sentence. Id. at 462. "[A] juvenile term of incarceration qualifies as a term of imprisonment under N.J.S.A. 2C:44-5b(2)." Id. at 469. Accordingly, a juvenile who meets the three-prong test must be awarded gap-time credit for the time served from the date of the first sentence to the date of the second sentence. N.J.S.A. 2C:44-5b(2).

Defendant meets the three-prong test and is, therefore, entitled to 131 days of gap-time credit for the time served on the juvenile sentence. These credits shall be credited to the back end of the sentence and cannot be used to reduce his period of parole ineligibility under NERA. Booker v. N.J. State Parole Bd., 136 N.J. 257, 260, 263 (1994).

Defendant's sentence is affirmed, and the matter is remanded for entry of an amended JOC to reflect the 131 days of gap-time credit.

1 Defendant raised other issues that are not pertinent to this appeal.