STATE OF NEW JERSEY v. KEITH J. DAY

NOT FOR PUBLICATION WITHOUT THE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.

KEITH J. DAY, a/k/a

KENNETH DAYE,

Defendant-Appellant.

_____________________________________________________________

June 3, 2014

Submitted October 17, 2013 Decided

Before Judges Maven and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 09-05-0934.

Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, on the brief).

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Keith J. Day, following his conviction, appeals from the November 30, 2011 Law Division order denying his motion for additional jail credits.1 We affirm.

The undisputed facts follow. On September 12, 2008, the court sentenced defendant, following his conviction, for third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), under Indictment No. 07-04-0690 ("690"), to two years' probation. The court awarded defendant seventy-two days jail credit.2 On September 3, 2009, defendant pled guilty to three counts of third-degree forgery, N.J.S.A. 2C:21-1(a)(1), under Indictment No. 09-05-0934 ("934"). The State recommended probation conditioned upon no more than 364 days in jail, concurrent to any sentence imposed on a violation of probation (VOP) in connection with 690.

On February 2, 2010, defendant pled guilty to a VOP on 690, based on his failure to comply with conditions of probation and for incurring new criminal charges. He also reaffirmed the guilty plea on 934, to acknowledge the revised sentencing recommendation to Drug Court. The court sentenced defendant to five years Drug Court probation on each forgery count, to run concurrent to each other, with an alternate sentence of four years of imprisonment on 934. Defendant received jail credits for two day he served in custody following his arrest on 934.3 R. 3:21-8.

In July 2010, a VOP complaint was filed charging defendant with multiple violations of Drug Court probation. On August 17, 2010, defendant pled guilty to the VOPs, and the court resentenced defendant on 690 to three years imprisonment with 298 days of jail credits. On Indictment 934, the court imposed a concurrent sentence of four years imprisonment with two days credit for time served.

In October 2011, defendant filed a motion for reconsideration of his sentence and post-conviction relief. Relying on State v. Hernandez, 208 N.J. 24 (2011), defendant asserted he was entitled to additional jail credit on Indictment 934.4 On November 28, 2011, Judge Ronald E. Hoffman heard oral argument on the motion. The court explained to defendant that the allocation of his accumulated jail credits had been reviewed several times, and the jail credits had been appropriately applied to the two indictments: 298 days of credit for time served applied to Indictment 690 and two days of credit to Indictment 934. The judge explained that Hernandez was to be applied only prospectively, and found because defendant was sentenced in 2010 before Hernandez, he was not entitled to the jail credits he requested. Defendant appealed.

This matter was initially considered on our October 16, 2012 Excessive Sentencing Oral Argument calendar. See R. 2:9-11. Following an order granting reconsideration of our denial of relief, we ordered the matter relisted after full briefing, to address the impact of Hernandez on the application of jail credits on concurrent VOP sentences.

On appeal, defendant raises one issue:

I. DEFENDANT IS ENTITLED TO RETROACTIVE APPLICATION OF STATE V. HERNANDEZ TO HIS CASE TO AWARD JAIL CREDIT.

Defendant argues the 298 days of jail credit applied to 690 should also be applied to 934, which carries the longer sentence. We have considered this argument in light of the record and applicable legal principles and conclude that it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Hoffman. We add only the following brief comments.

In Hernandez, the Court held that "defendants are entitled to precisely what [Rule 3:21-8] 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. (internal quotations marks omitted). However, the Court held its "opinion shall apply only prospectively to sentences . . . except for those matters on direct appeal in which the amount of jail credits was actually questioned or challenged by defendant at sentencing." Id. at 51. In this case, the record is clear, and defendant concedes, he did not challenge the jail credits at sentencing, which occurred almost a year before the Hernandez opinion was decided on June 8, 2011. Instead, he began questioning the credits only after the Hernandez decision was issued. Accordingly, Hernandez's holding is inapplicable to defendant's circumstances.

As properly determined by Judge Hoffman, defendant is not entitled to additional jail credits on Indictment 934.

Affirmed.

1 Defendant characterized his motion as one for post-conviction relief and for reconsideration of sentence.

2

In his appendix, defendant did not provide any documentation on Indictment No. 07-04-0690. Defendant provided only documentation on Indictment No. 09-05-0934, the subject of the jail credit motion and this appeal.

3 The February 2, 2010 transcript reflects a discussion informing the court defendant accrued 152 days of jail credits as of that date. Defendant received two of jail credits on 934.

4

In June 2011, the court responded to defendant's request for a review of the jail credits and confirmed the allocation of the credits had been applied correctly. Defendant wrote another letter, dated July 22, 2011, requesting a change of sentence for health reasons and application of 300 days of jail credits on his sentence, followed by this motion.