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State v. Miller

Decided: November 15, 1994.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BARRY MILLER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County.

Before Judges Stern, Keefe and Humphreys.

Stern

The opinion of the court was delivered by

STERN, J.A.D.

Defendant appeals from the dismissal of his petition for post-conviction relief. The background is set out by United States District Court Judge Dickenson R. Debevoise in dismissing defendant's petition for habeas corpus for failure to exhaust State remedies:

On January 23, 1985, Miller was sentenced to a six to twelve year term of imprisonment for armed robbery in New York State. He was thereafter placed in a federal penitentiary, the Metropolitan Correction Center [hereafter "M.C.C."] in New York to serve his sentence.

During the summer of 1985, Miller was indicted in New Jersey pursuant to Passaic County Indictment Nos. 992-84K and 354-85D for armed robbery and other related offenses. Negotiations subsequently took place between Passaic County authorities and counsel for Miller. As a result of these negotiations a plea agreement was reached between the parties. On September 9, 1985, an application to transfer custody of Miller to New Jersey in order to have him appear before the state court was granted by Judge Jack Weinstein of the United States District Court for the Eastern District of New York. Miller as thereafter moved to the Passaic County Jail.

A plea hearing took place in the Superior Court of New Jersey in Passaic County on November 19, 1985. At the hearing, Miller agreed to plead guilty to first degree robbery in exchange for the State's dismissal of the other charges in the indictment. The State would also recommend a maximum custodial sentence of fifteen years, with seven and a half years of parole ineligibility, and advise that two and a half years of the sentence should run concurrently with the sentence then being served in New York. Questioned by the court, Miller confirmed the voluntary nature of his plea and his understanding of the charge. Miller also confirmed his satisfaction with counsel's services and reaffirmed his participation in the robbery to which he was pleading guilty.

The plea was provisionally accepted by the court pending submission of a presentence report. The State Assistant Prosecutor at the hearing, Bruno Mongiardo, stated that he understood that Miller wished to return to the M.C.C. and be brought back to New Jersey for the sentencing date. He indicated that this arrangement was acceptable with the United States Attorney's Office in New York, and that it would prevent the court from being pressed for an early sentencing date. The court inquired whether this was indeed what Miller wanted, to which he responded "yes". The court proceeded to set sentencing for January 14, 1986 and directed that Miller be remanded to the M.C.C. until the sentencing date. On January 14, 1986, Miller was sentenced to seven and a half to fourteen years under the terms of the plea agreement entered into at the hearing on November 19, 1985.

Defendant filed his State petition for post-conviction relief in August 1992, over six and-one-half years after the judgment of conviction was entered on January 14, 1986. He nevertheless contends that the petition is not time-barred because the delay was attributable to "excusable neglect," and that the Interstate Agreement on Detainers ("IAD"), N.J.S.A. 2A:159A-1 et seq., required dismissal of the case before sentencing.

Defendant was returned to New Jersey under the IAD*fn1 for the 1985 plea and contends that, because he was "returned to the original place of imprisonment," before sentencing, even at his request,*fn2 further proceedings thereafter were barred under Article IV(e), which is codified in New Jersey as N.J.S.A. 2A:159A-4(e). (Article IV of the IAD embodies the provisions regarding requests for Disposition by the prosecuting authority, whereas Article III concerns the requests for Disposition by the defendant.)

N.J.S.A. 2A:159A-4(e) provides:

if trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner's being returned to the original place of imprisonment pursuant to Article V(e) [N.J.S.A. 2A:159A-5(e)] hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.

Defendant argues that "the anti-shuttling provision of Article IV(e) encompasses sentencing, meaning that a state which has taken custody of a prisoner for purposes of resolving an untried indictment also must sentence that prisoner . . . before returning him to the original jurisdiction of imprisonment." Defendant relies on Tinghitella v. State of California, 7 ...


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