STATE OF NEW JERSEY v. VINCENT M. MERCURI

NOT FOR PUBLICATION WITHOUT THE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.

VINCENT M. MERCURI, a/k/a

VINCENT MICHAEL MERCURI,

Defendant-Appellant.

________________________________________________________________

June 10, 2014

Submitted October 17, 2013 Decided

Before Judges Lihotz and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Accusation No. 08-12-0474.

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

John J. Hoffman, Acting Attorney General, attorney for respondent (Carol M. Henderson, Assistant Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Vincent M. Mercuri appeals from the Law Division's sentence imposed on October 21, 2011 following his guilty plea for violations of probation (VOP). Defendant seeks additional jail credits corresponding to the period of custody from his arrest on new charges to the date of sentencing on the VOP. In light of our conclusion that jail credits accrue during pre-adjudication custody, we remand for calculation of the number of credits defendant is entitled to and to amend the VOP Judgment of Conviction accordingly.

After defendant pled guilty to third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), charged in Warren County Accusation No. 08-12-0474, the court sentenced defendant to two years probation and 180 days in Warren County Correctional Center (WCCC) on January 30, 2009.

On January 3, 2011, the Monmouth County Probation Department charged defendant with various conduct that violated the imposed terms of probation. Specifically, the statement of charges listed defendant had: tested positive for opiates; failed to complete an intensive outpatient drug rehabilitative program; failed to report to probation; and failed to satisfy his financial obligations. On March 24, 2011, the VOP charges were amended to include that defendant also violated probation as a result of his arrest in Marlboro, Monmouth County on February 18, 2011, and subsequent indictment for possession of heroin (Indictment No. 11-05-001912). In August 2011, defendant pled guilty to the charge in Indictment 11-05-1912. He remained in custody on an active VOP detainer from Warren County until sentenced in Monmouth County on September 23, 2011.

Defendant pled guilty to the Warren County VOP on August 19, 2011. Thereafter, he was sentenced on October 21, 2011. The court imposed a custodial term subject to an award of eighty-six days of gap time credit (December 4, 2008 to January 30, 2009 and September 23, 2011 to October 20, 2011), thirty-two days of jail credit (October 4, 2008 to November 4, 2008), and sixty days of prior service credit (June 14, 2009 to August 12, 2009).

Citing Hernandez, defendant requested an additional 217 days of jail credit from the date the Warren County detainer was lodged, February 22, 2011, to September 23, 2011 when he began serving the Monmouth County sentence. The State argued Hernandez did not specifically authorize jail credits applied to VOP sentences. The sentencing judge declined to award thecredits at that time pending receipt of a formal request fromdefendant. Instead, defendant appealed.

Initially, this matter was included on our October 16, 2012 Excessive Sentencing Oral Argument calendar. See R. 2:9-11. We ordered the matter relisted after full briefing to address the impact of Hernandez on the calculation of jail credits related to a VOP sentence.

On appeal, defendant raises one issue:

THE SENTENCING COURT ERRED IN REFUSING TO GRANT DEFENDANT AN ADDITIONAL 217 DAYS OF JAIL CREDIT.

"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, ___ N.J. ___ (2014)). A trial judge's "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." State v. McKeon, 385 N.J. Super. 559, 567 (App. Div. 2006). Thus, we review legal issues de novo. State v. Bradley, 420 N.J. Super. 138, 141 (2011).

Rule 3:21-8 (the Rule) provides: "The defendant shall receive credit on the term of a custodial sentence for any time served in custody in jail . . . between arrest and the imposition of sentence." In the past, our courts have interpreted the Rule to permit jail credits only for "'confinement . . . attributable to the arrest or other detention resulting from the particular offense.'" Hernandez, supra, 208 N.J. at 36 (quoting State v. Black, 153 N.J. 438, 456 (1998) (citations and internal quotation marks omitted)). TheCourt, however, considered, for the first time, the Rule's application when a defendant, who is incarcerated awaiting disposition on charges is also held awaiting disposition on other charges. Ibid. at 45.

After reviewing the policy underpinning the Rule, the Court held that "a defendant in jail pending trial in one county subject to a detainer on charges in another county must receive jail credits under Rule 3:21-8 for that time on both charges if ultimately sentenced on both." Id. at 49. This pronouncement follows the Court's clear interpretation of the Rule that "defendants are entitled to . . . 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." Id. at 28 (quoting R. 3:21-8).

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, supra, 434 N.J. Super. 443, the defendant, while on non-custodial probation, was arrested and detained on new criminal charges. 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 butalso 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," ibid., 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, 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 Hernandez, supra, 208 N.J. at 36. We narrowed our review in DiAngelo to a "defendant who is in custody after the commission of another criminal offense while on probation, and against whom a summons for a VOP [had] been issued rather than an arrest warrant. DiAngelo, supra, 434 N.J. Super at 459-60.

Here, defendant was not in custody when the VOP charges were filed January 3, 2011, nor did the Probation requestdefendant's arrest on the VOP. However, after his arrest on February 18, 2011 in Monmouth County, he remained in custody on the new charge and on an active detainer from Warren County for the VOP until sentenced in Monmouth County on September 23, 2011. Accordingly, defendant is entitled to jail credit both against the VOP sentence for the period of pre-adjudicationconfinement as well as the sentence on the subsequent criminaloffense.

We now consider the appropriate period for which credit must be granted. In DiAngelo, the VOP statement of charges issued while the defendant was in jail on new charges. DiAngelo, supra, 434 N.J. Super. 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.

The accrual of jail credits on VOPs requires the consideration of the facts on a case-by-case basis within a narrow set of parameters outlined in DiAngelo. Thus, we review the timeline in this case to determine when jail credits should begin to accrue. The VOP charges against defendant were filed in January 3, 2011. Defendant remained at liberty until he was arrested and taken into custody on February 18, 2011 on new charges. Defendant remained in custody until the final sentencing on October 21, 2011. Based upon the rationale espoused in Hernandez and DiAngelo, we conclude jail credits began to accrue on defendant's VOP when he was taken into custody on the new charges. Unlike the facts in DiAngelo, here defendant's VOP charges preceded his arrest and detainment, entitling him to credit upon being taken into custody. Moreover, we find additional support for his entitlement to jail credits based upon the issuance of the detainer ensuring his continuous custody for the VOP sentencing.

Accordingly, we remand this matter for the calculation of jail credits for the VOP from February 18, 2011 to September 23, 2011. The VOP Judgment of Conviction shall be amended to reflect these additional credits.

Remanded. We do not retain jurisdiction.