STATE OF NEW JERSEY v. KENNETH WEST

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENNETH WEST, a/k/a KENNETH J.

WEST, KENNY WEST, KENNEY J. CALABRESE,

KENNY CALABRESE, STEVE CALABRESE,

TREVOR BAILEY, TREVOR LIONS,

TREVOR LYONS, JONATHAN MONTGOMERY,

DAVID L. WOODS,

Defendant-Appellant.

___________________________________________

November 1, 2016

Submitted September 14, 2016 Decided

Before Judges Messano and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment Nos. 09-05-0438 and 09-06-0537.

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

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Danielle R. Pennino, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Kenneth West appeals from the February 5, 2015 Law Division order denying his petition for post-conviction relief (PCR). We affirm.

A grand jury sitting in Cumberland County returned an indictment in May 2009, charging defendant with one count of third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1), and one count of third-degree distribution of cocaine, N.J.S.A. 2C:35-5(b)(3) and N.J.S.A. 2C:35-5(a)(1)(indictment 438). One month later, the same grand jury charged defendant with one count of third-degree possession of MDMA, N.J.S.A. 2C:35-10(a)(1) (indictment 537).1 Defendant was arrested on these charges on March 27, 2009 and released on bail on April 21, 2009.

After defendant was arraigned on both indictments (the New Jersey charges), he traveled to Georgia and on October 7, 2009, he was arrested and incarcerated in Fulton County, Georgia on forgery and fraud charges. On October 8, 2009, a bench warrant was issued for defendant on the New Jersey charges.

On November 25, 2009, defendant was sentenced on the Georgia charges to a five-year term of probation with six months to be served in jail. Defendant was released on April 5, 2010, and began his probationary term.

Defendant returned to New Jersey and on May 3, 2010 the bench warrant was vacated. Defendant appeared at a status conference on the New Jersey charges on May 17, 2010. Defendant's counsel indicated he was considering filing motions on both indictments and the matter was adjourned to July 9, 2010 for that purpose.

Instead of pursuing pretrial motions, defendant executed a plea agreement and pled guilty to the distribution charge in indictment 438 and the possession charge in indictment 537. Sentencing was initially scheduled for September 3, 2010, but was apparently adjourned. On September 24, 2010, defendant failed to appear for sentencing and a bench warrant was issued.

On October 18, 2010, defendant was again arrested in Fulton County, Georgia on forgery and fraud charges and remained incarcerated on those charges through January 24, 2011. Thereafter, defendant continued to be incarcerated in Georgia on charges from Gwinnett County, Georgia.

On July 14, 2011, defendant was sentenced in Georgia to a six-year prison term for forgery and a consecutive five-year probation term for fraud. Defendant received 147 days of jail credit toward the sentence.

On September 24, 2012, while incarcerated in Georgia, defendant executed a request for final disposition of the pending New Jersey charges pursuant to the Interstate Agreement on Detainers Act (IAD), N.J.S.A. 2A:159A-3. Defendant was transferred to New Jersey and arrived in Cumberland County on November 22, 2012.

Defendant appeared for sentencing on the New Jersey charges on January 18, 2013, but the parties disputed whether defendant's sentence should be concurrent or run consecutively to his Georgia sentence. The sentencing judge, who was not the judge who accepted defendant's guilty plea, adjourned the matter to permit the parties to brief the issue.

On February 15, 2013, defendant's counsel informed the judge that she did not submit a brief because she could not find any case law to support her position. The judge determined that defendant went to Georgia to address the charges there, but was not arrested until October 18, 2010. Therefore, he could have appeared for his scheduled sentencing on the New Jersey charges on September 24, 2010.

Defendant argued that his plea counsel assured him his sentence on the New Jersey charges would run concurrently to the Georgia sentence, but the prosecutor told the judge he was not even aware of the Georgia charges when the New Jersey plea agreement was executed, and he never had any discussions with defendant's plea counsel regarding other charges or a concurrent sentence. In the middle of this discussion, defendant's counsel informed the judge that defendant wanted to withdraw his plea. The judge adjourned sentencing to permit defendant to file a motion to withdraw his plea.

On April 15, 2013, the judge first denied defendant's motion to withdraw his plea and proceeded to sentencing. Defendant's counsel asked that defendant be given credit from November 22, 2012, when he was produced in New Jersey pursuant to the IAD. The prosecutor acknowledged that defendant was not entitled to jail credits for this period because he continued serving the Georgia sentence, but agreed to defense counsel's request. When the judge questioned how he could legally grant defendant jail credits, the prosecutor replied that it was a negotiation of defendant's sentence and, in effect, an "amendment" to defendant's guilty plea.

The judge sentenced defendant in accordance with the plea agreement to three and one-half years on indictment 438 to run consecutively to the Georgia sentence he was serving. On indictment 537, the judge imposed a three and one-half year sentence to run concurrently to the first sentence. The judge then awarded defendant jail credit from November 22, 2012, when he was produced from Georgia, plus additional discretionary credits.

Defendant appealed his sentence and we heard the matter at our Excessive Sentencing Oral Argument (ESOA) calendar on January 14, 2014. On consent, we remanded the matter to the sentencing judge for entry of a corrected judgment of conviction to include an additional twenty-six days of jail credits. Defendant was returned to Georgia to continue serving his sentence.

On May 27, 2014, defendant filed a pro se petition for PCR alleging ineffective assistance of his plea counsel. After appointment of counsel, a brief was submitted in support of the petition. Defendant claimed his counsel failed to adequately advocate on his behalf as to jail credits and the motion to withdraw his plea; failed to adequately investigate the charges and file "appropriate suppression motions;" and was not adequately prepared for the proceedings. Defendant also claimed he received an illegal sentence.

On December 23, 2014, a different judge heard oral argument on the PCR petition. In a written opinion accompanying the order denying the petition, the PCR judge rejected defendant's claim that his sentencing counsel was ineffective in failing to advocate for out-of-state jail credits and for not arguing in support of his motion to withdraw his guilty plea.

Addressing the legality of defendant's sentence, the judge first noted that the jail credit issue was the subject of defendant's sentencing appeal. The judge then concluded that because defendant's out-of-state detention was for new charges unrelated to the New Jersey charges, he was not entitled to jail credits and therefore, his sentence was legal.

On appeal, defendant raises one point

point i

the defendant did not receive adequate legal representation from trial counsel as a result of counsel's failure to effectively advocate for the awarding of additional jail credits at sentencing.

Defendant's claim of ineffective assistance lacks merit as his sentencing counsel clearly argued for additional jail credits at sentencing. Moreover, counsel convinced the prosecutor to agree and the judge to award credits defendant was clearly not entitled to. This however, does not end our inquiry.

"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). If defendant's sentence was not imposed in accordance with law, it is an illegal sentence, even if it was consistent with his plea agreement. "Parties may not negotiate an illegal sentence . . . and a defendant may not accept one as part of a plea agreement." State v. French, 437 N.J. Super. 333, 335 (App. Div. 2014) (citations omitted), certif. denied, 220 N.J. 575 (2015). If defendant's appellate counsel reached an agreement with the State during defendant's ESOA appeal which did not accurately reflect defendant's entitlement to jail credits, his sentence may be corrected at any time before it is completed. R. 2:10-3; State v. Schubert, 212 N.J. 295, 309-10 (2012).

Rule 3:21-8 provides that a "defendant shall receive credit on the term of a custodial sentence for any time served in custody in jail or in a state hospital between arrest and the imposition of sentence."

The seminal case which guides our determination of a defendant's eligibility for jail credits is State v. Hernandez, 208 N.J. 24 (2011). In Hernandez, the Court considered when a defendant is entitled to jail credits "for time spent in presentence custody on multiple charges." Id. at 45. The Hernandez Court instructed that Rule 3:21-8 mandates that a defendant receive jail credit for time spent in presentence custody against all sentences imposed on all convictions. Id. at 28. Thus, presentence credit begins upon arrest until the first sentencing. Id. at 50. "[O]nce the first sentence is imposed, a defendant awaiting imposition of another sentence accrues no more jail credit under Rule 3:21-8." Ibid.

Defendant now argues that he is entitled to jail credits for three specific time periods, totaling 236 days

October 7, 2009, defendant's first arrest in Georgia, to November 25, 2009, when he was first sentenced in Georgia (49 days);

October 18, 2010, defendant's second arrest in Georgia, to January 24, 2011 (98 days); and

April 16, 2011, to July 14, 2011, when defendant's second Georgia sentence was imposed (89 days).

In his brief, defendant concedes that Rule 3:21-8 does not mandate the award of jail credits for these periods of out-of-state incarceration. He maintains that discretionary awarding of these credits is warranted based upon "fairness, justice and fair dealings." We disagree.

First, we reject defendant's unsubstantiated claim that when he signed the New Jersey plea agreement on July 9, 2010, he anticipated that the agreed upon three and one-half year sentence would run concurrently to any sentence he received in Georgia. The plea agreement and the plea transcript provide no support for this claim. Additionally, the prosecutor stated that he was not aware that defendant had outstanding charges pending in another state and never discussed concurrent sentences with defendant's plea counsel. The record, which indicates that defendant was not arrested on the Georgia charges until October 18, 2010, three months after his New Jersey guilty plea, also belies defendant's claim.

We are therefore compelled to reject defendant's argument that he should have been awarded additional discretionary jail credits because the judge's decision to run the New Jersey sentence consecutive to the Georgia sentence "was clearly contrary to the defendant's reasonable expectations."

We note that defendant has already received discretionary jail credits when the judge awarded the period from his arrival in New Jersey to the date of sentence. As defendant was serving the Georgia sentence during this period, he was not entitled to jail credits. See Hernandez, supra, 208 N.J. at 50 ("once the first sentence is imposed, a defendant awaiting imposition of another sentence accrues no more jail credit under Rule 3:21-8.").

Defendant relies on our opinion in State v. Beatty, 128 N.J. Super. 488 (App. Div. 1974) in support of his argument that he should receive jail credits for his out-of-state incarceration. In Beatty, the defendant was indicted on Union County robbery charges while serving a custodial term in a New York prison. Id. at 490. A detainer was lodged against the defendant based on a New Jersey parole violation. Ibid. Because of that detainer, the defendant was held by New York authorities for 166 days beyond the latest release date on his New York sentence. Id. at 490-91. We held that because the defendant was detained in New York based on action taken by New Jersey, he was entitled to receive credit against his sentences for the 166 days he was detained in New York. Id. at 491.

Beatty is distinguishable. Although a bench warrant was issued after defendant failed to appear for sentencing on September 24, 2010, there is no indication in the record that New Jersey ever lodged the warrant as a detainer with Georgia. Defendant was never held in Georgia on the New Jersey charges. Defendant was only transported to New Jersey after he filed a request under the IAD in September 2012 requesting transfer to New Jersey for sentencing. Defendant has failed to establish that he is entitled to any additional jail credits.

Affirmed.

1 MDMA, or Methylenedioxymethamphetamine, is also known as Ecstasy.