March 6, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CARMELO JOSE RODRIGUEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 02-02-0285.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 7, 2008
Before Judges S. L. Reisner and Gilroy.
Defendant Carmelo Jose Rodriguez appeals from the March 28, 2005, order of the Law Division, which denied his petition for post-conviction relief (PCR). We affirm.
On December 11, 2000, defendant pled guilty to a third-degree offense of receiving stolen property. On February 28, 2001, defendant jumped bail and failed to appear for sentencing. On April 10, 2001, defendant was arrested on the open warrant for failure to appear for sentencing, and for unrelated actions that later became the subject of Indictment No. 02-02-0285. On June 26, 2001, defendant was sentenced on the conviction of receiving stolen property to a five-year term of imprisonment. At time of sentencing, defendant rejected a plea offer that encompassed the new charges. On August 21, 2001, defendant was charged with bail jumping for failure to appear at sentencing under Indictment No. 01-08-1628.
On February 5, 2002, defendant was charged under Indictment No. 02-02-0285 with having committed various offenses on April 10, 2001, including second-degree aggravated assault and kidnapping. On May 16, 2002, after the kidnapping charge was amended to third-degree aggravated assault, defendant pled guilty to both charges.
On July 11, 2002, defendant was sentenced on the conviction for second-degree aggravated assault to the then-presumptive term of seven years, subject to an 85% parole disqualifier pursuant to the No Early Release Act (NERA), and to a three-year period of parole supervision on release. On the conviction for third-degree aggravated assault, defendant was sentenced to a five-year term of imprisonment, both sentences to run concurrent with the sentence imposed on the conviction of receiving stolen property. All other counts under Indictment 02-02-0285 were dismissed or merged. Also on July 11, 2002, defendant pled guilty to the charge of bail jumping and was sentenced to a five-year term of imprisonment, to run concurrent with the sentences imposed on the two convictions of aggravated assault and of receiving stolen property.
At sentencing, defense counsel had argued for an award of 381 days gap-time credit to reduce the 85% parole disqualifier imposed on defendant's conviction for second-degree aggravated assault. In the alternative, counsel requested that the base term be reduced from seven years of imprisonment to five years, with the 85% parole disqualifier. Defendant's request was denied, and no direct appeal was taken from the judgments of conviction.
On July 24, 2002, defendant filed a motion to correct an illegal sentence, and a motion for reduction of sentence. At oral argument, defense counsel again argued for an award of 381 days gap-time credit, or alternatively, that defendant's base time be reduced to account for the gap-time credit. On March 26, 2004, the motions were denied, and defendant appealed.
On appeal, we determined that defendant was entitled to 381 days gap-time credit, but rejected defendant's argument that the credit be applied against the NERA 85% parole disqualifier, citing Meyer v. N.J. State Parole Bd., 345 N.J. Super. 424 (App. Div. 2001). State v. Rodriguez, No. A-5129-03 (App. Div. August 22, 2005) (slip op. at 5). We declined to address defendant's arguments that the gap-time credit should have been applied against the NERA period of parole supervision and that defendant should have been permitted to withdraw his plea, because those issues were not properly before this court, neither argument having been made in the Law Division. Id. at 5-7. In addition, we rejected defendant's constitutional argument, concerning the application of gap-time credit to the NERA parole disqualifier period, determining that the argument was without merit, R. 2:11-3(e)(2). Because we determined that defendant was entitled to 381 days gap-time credit, we remanded the matter to the trial court to amend the judgments of conviction accordingly. Id. at 9.
On remand, the trial judge amended the judgments of conviction, awarding defendant 381 days gap-time credit. On August 28, 2006, defendant filed a motion for PCR, challenging his sentence as illegal, contending that: 1) the gap-time credit should have been applied against the base term of his sentence; and 2) he was denied effective assistance of trial and remand counsel, because neither counsel had argued that the gap-time credit should have been applied against the custodial portion of his sentence. On December 18, 2006, Judge Callahan entered an order supported by a written opinion denying the motion.
On appeal, defendant argues:
DEFENDANT WAS ENTITLED TO HAVE HIS 381 DAYS OF GAP-TIME CREDIT REDUCE HIS BASE TERM OF SEVEN YEARS, AND AS WELL AS A CORRESPONDING PROPORTIONAL REDUCTION IN HIS 85 PERCENT PERIOD OF PAROLE INELIGIBILITY. BOOKER V. NEW JERSEY STATE PAROLE BD., 136 N.J. 257 (1994).
DEFENDANT WAS ENTITLED TO A DIRECT REDUCTION IN HIS BASE TERM TO ADJUST FOR THE FACT THAT ALL OF DEFENDANT'S SENTENCES WERE TO BE RUN CONCURRENT, AS OPPOSED TO CONSECUTIVE.
THE MATTER SHOULD BE REMANDED FOR A NEW HEARING ON DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF IN THE INTERESTS OF JUSTICE.
We are satisfied, after carefully reviewing the entire record and the arguments raised by counsel, that the arguments are 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 Callahan in his cogent, written opinion of December 18, 2006. Nevertheless, we add the following comments.
Defendant argues that the trial judge erred by not applying the 381 days gap-time credit against his base term on the sentence he received on his conviction for second-degree aggravated assault (85% of the seven-year term of imprisonment). Defendant contends that his NERA period of parole ineligibility should be calculated using his adjusted base term, not his original sentence of seven years. Defendant asserts that, although courts have held that gap-time credit cannot be applied directly to reduce the NERA period of parole ineligibility, a proportional reduction is permitted. We disagree.
Gap-time credit is provided for by statute. N.J.S.A. 2C:44-5b.
When a defendant who has previously been sentenced to imprisonment is subsequently sentenced to another term for an offense committed prior to the former sentence, other than an offense committed while in custody:
(1) The multiple sentences imposed shall be as far as possible conformed to Subsection a. of this section; and
(2) Whether the court determines that the terms shall run concurrently or consecutively, the defendant shall be credited with time served in imprisonment on the prior sentence in determining the permissible aggregate length of the term or terms remaining to be served . . . . [N.J.S.A. 2C:44-5b.]
The policy behind this statutory provision is to counteract any dilatory tactics of the prosecutor in pursuing a conviction of an earlier offense after the defendant has already been sentenced on another offense. State v. Franklin, 175 N.J. 456, 462 (2003). Simply stated, the purpose behind the statute is to put defendants in the same position as if the two offenses had been tried at the same time. Ibid.
Gap-time credit must be awarded to a defendant on a showing of the following three criteria: "(1) the defendant has been sentenced previously to a term of imprisonment, (2) the defendant is sentenced subsequently to another term, and (3) both offenses occurred prior to the imposition of the first sentence." Ibid. Contrary to jail credit awarded pursuant to Rule 3:21-8, where the credit is applied to the front end of a sentence, gap-time credit is applied to the back end of the aggregated sentences. Gap-time credit may not be used "to reduce a judicial or statutory parole bar by a 'front-end' reduction of the aggregated sentences." Richardson v. Nickolopoulos, 110 N.J. 241, 245 (1988) (Richardson II). Nor may gap-time credit be applied to reduce the 85% period of parole ineligibility mandated by NERA. Meyer, supra, 345 N.J. Super. at 429.
Here, defendant received 381 days gap-time credit for the time that accrued between June 26, 2001, the date he was sentenced on his conviction for receiving stolen property, and July 11, 2002, the date he was sentenced on his two convictions for aggravated assault. Defendant contends that he is entitled to a proportionate reduction of the 85% period of parole ineligibility, asserting that the gap-time credit should have been applied against the base term, citing Booker v. N.J. State Parole Bd., 136 N.J. 257 (1994). Booker does not support defendant's argument.
In Booker, the Court held that "gap-time credits proportionately advance a defendant's primary parole-eligibility date when neither a judicial nor a statutory parole bar has been imposed." Ibid. at 261 (emphasis added). However, the Court also affirmed this court's decision that gap-time credit may not be used to reduce a defendant's parole bar, that is, "'a period of parole disqualifier is an absolute term, against which there are to be no credits (other than jail credits).'" Id. at 263 (quoting Booker v. N.J. State Parole Bd., 265 N.J. Super. 191, 207 (App. Div. 1993)). Because defendant's suggested "proportional reduction" would result in the reduction of his NERA period of parole ineligibility, we reject the argument. Meyer, supra, 345 N.J. Super. at 430 ("In our view, the Legislature has spoken in clear and unambiguous terms that a person convicted of a NERA offense must serve eighty-five percent of the sentence imposed before becoming eligible for release."). Defendant may not seek a reduction of a period of ineligibility through the back door when the front door has been closed.
We reject defendant's argument that he was denied effective assistance of trial and remand counsel, contending that neither counsel had argued that the gap-time credit should have been applied against the custodial portion of his sentence. Contrary to defendant's argument, both counsel made the argument to the trial court on defendant's behalf. Moreover, defendant's argument is without merit. R. 2:11-3(e)(2).
Lastly, we do not address defendant's contention that the matter should be remanded because the trial judge did not address defendant's request that he be permitted to withdraw his plea. A review of the record discloses that defendant never asserted that argument in the Law Division. Accordingly, the matter is not properly before us.
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