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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.