STATE OF NEW JERSEY v. SEAN A. ROBERTS

NOT FOR PUBLICATION WITHOUT THE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-5472-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

SEAN A. ROBERTS,

     Defendant-Appellant.
________________________

                    Submitted October 3, 2019 – Decided October 22, 2019

                    Before Judges Fuentes and Enright.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 16-05-1569.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Michael Timothy Denny, Assistant Deputy
                    Public Defender, of counsel and on the brief).

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Barbara A.
                    Rosenkrans, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Sean Roberts appeals from the May 1, 2018 order denying him

525 days of jail credit on the prison sentence he received on a conviction for

unlawful possession of a weapon. We affirm.

      In June 2009, defendant entered guilty pleas on two indictments. On one

indictment, he pled guilty to a lesser charge of second-degree manslaughter,

 N.J.S.A. 2C:11-4(b), and second-degree unlawful possession of a weapon,

 N.J.S.A. 2C:39-5(b). On the second indictment, he pled guilty to an amended

charge of third-degree theft,  N.J.S.A. 2C:20-3.

      On July 9, 2009, defendant was sentenced on these indictments. The

sentencing court imposed an aggregate sentence of seven years' incarceration,

with an eighty-five percent period of parole ineligibility and three years of

mandatory parole supervision, in accordance with the No Early Release Act

(NERA),  N.J.S.A. 2C:43-7.2. Defendant was released on parole on September

10, 2014.

      Defendant was arrested again on October 9, 2015 and subsequently

indicted on a single count of second-degree unlawful possession of a handgun,

 N.J.S.A. 2C:39-5(b). According to the parties' submissions, a parole warrant

issued against the defendant on October 15, 2015.




                                                                       A-5472-17T3
                                       2
      The Parole Board revoked defendant's parole on June 16, 2016, and he

completed serving his original sentence without parole on September 11, 2017.

He remained incarcerated thereafter pending the outcome of the second degree

unlawful possession of a handgun charge.

      On January 17, 2017, defendant pled guilty to the unlawful possession of

a handgun. Judge Mark S. Ali sentenced him on March 17, 2017, to a five-year

prison term with a forty-two month parole disqualifier, to run concurrently to

his parole violation sentence. The amended Judgment of Conviction confirms

defendant received six days of jail credit on this sentence, based on the period

running from defendant's arrest date of October 9, 2015 until the day before the

parole warrant issued, October 14, 2015.

      After defendant was sentenced, he filed a motion asking the court to award

him 525 days of jail credit. He argued he was entitled to these jail credits on the

unlawful possession of a weapon conviction, from the day he was arrested for

this offense until the day he was sentenced on the offense. Defendant's motion

was denied on May 1, 2018.

      On appeal, defendant raises the following argument:

            DEFENDANT IS ENTITLED TO JAIL CREDITS
            FROM THE DATE OF HIS ARREST ON THE
            INSTANT CHARGES TO THE DATE OF
            SENTENCING.

                                                                           A-5472-17T3
                                        3
      Rule 3:21-8 provides that "[t]he 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 credit provided by the Rule

is commonly known as a "jail credit." Richardson v. Nickolopoulos,  110 N.J.
 241, 242 (1988).

      Jail credits are "day-for-day credits." Buncie v. Dep't of Corr.,  382 N.J.

Super. 214, 217 (App. Div. 2005). They are applied to the "front end" of a

defendant's sentence. Booker v. N.J. State Parole Bd.,  136 N.J. 257, 263 (1994).

Jail credits therefore reduce a defendant's overall sentence and any term of

parole ineligibility. State v. Rippy,  431 N.J. Super. 338, 348 (App. Div. 2013);

State v. Mastapeter,  290 N.J. Super. 56, 64 (App. Div. 1996). Jail credits prevent

a defendant from serving double punishment because without them, time spent

in custody before sentencing would not count toward the sentence. State v.

Rawls,  219 N.J. 185, 193 (2014).

      The argument defendant makes here was addressed and rejected by our

Supreme Court twenty-one years ago in State v. Black,  153 N.J. 438 (1998). In

that case, the defendant was originally sentenced to a three-year term for drug

offenses.  153 N.J. at 441. He was released on parole but violated the conditions

of parole when he failed to report to his parole officer. Ibid. A parole warrant


                                                                             A-5472-17T3
                                         4
was issued and he was also indicted for absconding.         Id. at 441-42.    The

defendant was eventually returned to custody for the parole violation, at which

point his parole was formally revoked.        He was ordered to complete the

remaining 337 days of his prison term on his drug conviction, commencing as

of the date he returned to custody. Id. at 442. The defendant later pled guilty

to the absconding charge and was sentenced to a three-year prison term to run

concurrent to his original sentence. Ibid. Although the 103 days the defendant

spent in custody from the date of his arrest on the parole violation to the day

prior to sentencing was applied to his parole violation term, he sought to also

have those days applied as jail credits to his sentence on the absconding

conviction. Ibid.

      Writing for a unanimous Court, Justice Stein began his analysis in Black

by noting that Rule 3:21-8 "has been interpreted to require credit only for 'such

confinement as is attributable to the arrest or other detention resulting from the

particular offense.'" Id. at 456 (quoting State v. Allen,  155 N.J. Super. 582, 585

(App. Div. 1978)). Conversely:

            when a parolee is taken into custody on a parole
            warrant, the confinement is attributable to the original
            offense on which the parole was granted and not to any
            offense or offenses committed during the parolee's
            release. If the parole warrant is thereafter withdrawn
            or parole is not revoked, and the defendant is convicted

                                                                          A-5472-17T3
                                        5
             and sentenced on new charges based on the same
             conduct that led to the initial parole warrant, then jail
             time should be credited against the new sentence. If
             parole is revoked, then the period of incarceration
             between the parolee's confinement pursuant to the
             parole warrant and the revocation of parole should be
             credited against any period of reimprisonment ordered
             by the parole board. Any period of confinement
             following the revocation of parole but before
             sentencing on the new offense also should be credited
             only against the original sentence, except in the rare
             case where the inmate has once again become parole
             eligible on the original offense but remains incarcerated
             because of the new offense.

             [Id. at 461.]

      Notwithstanding the holding in Black, defendant argues that Black "can no

longer stand" due to the "fundamental shift in jail credit jurisprudence" established

in State v. Hernandez,  208 N.J. 24 (2011). We disagree.

      In Hernandez, the court considered the fate of two defendants who sought "jail

credit for time spent in presentence custody on multiple charges," but who were not

"seeking jail credits for time accrued after imposition of a custodial sentence."

Writing for a majority of the Court in Hernandez, our colleague Judge Stern1 noted:

"We have not previously addressed these circumstances or the meaning of Rule 3:21-



 1 In September 2010, Chief Justice Rabner temporarily assigned Judge Stern to
serve on the Supreme Court. Judge Stern served with distinction in this capacity
until his retirement in 2011.
                                                                             A-5472-17T3
                                         6
8 when a defendant who is incarcerated awaiting disposition on charges is also held

awaiting disposition on other charges." Id. at 45. The Hernandez Court concluded

that "jail credits, which are earned prior to the imposition of the first custodial

sentence, are to be awarded with respect to multiple charges. Again, once the first

sentence is imposed, a defendant awaiting imposition of another sentence accrues

no more jail credit under Rule 3:21-8." Id. at 50.

       The Hernandez Court distinguished, but did not disturb the holding in Black.

Id. at 42-43. In fact, the Hernandez Court specifically noted that the defendant in

Black was "serving a custodial sentence, and we concluded [he was] not entitled to

presentence jail credits against a new sentence for time served in custody while those

charges were pending." Id. at 44. The Hernandez Court continued, "[t]he custodial

status of Hernandez . . . differs from that of the defendant[] in Black. Hernandez

. . . seek[s] jail credit for time spent in presentence custody on multiple charges and

[is] not seeking jail credits for time accrued after imposition of a custodial sentence."

Id. at 45.

       In the absence of a Supreme Court opinion directly addressing the

circumstances before the Court in Black, and unequivocally overruling its

interpretation of Rule 3:21-8, we decline to stray from its clear holding precluding

the award of the additional jail credits defendant seeks.


                                                                                A-5472-17T3
                                           7
      Defendant's remaining arguments lack sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




                                                                         A-5472-17T3
                                         8