April 16, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DANIEL L. MOORE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, No. 00-08-2454-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2007
Before Judges Wefing and R. B. Coleman.
Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant was indicted on one count of carjacking, N.J.S.A. 2C:15-2(a)(1), a crime of the first degree; one count of robbery while armed, N.J.S.A. 2C:15-1, a crime of the first degree; two counts of kidnapping, N.J.S.A. 2C:13-1(b)(1), a crime of the first degree; two counts of aggravated assault with a firearm, N.J.S.A. 2C:12-1(b)(4), a crime of the fourth degree; and one count of possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a), a crime of the second degree. Defendant entered a negotiated plea of guilty to one count of first-degree robbery; the State agreed to recommend a sentence of thirteen years in prison, subject to the terms of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, and to dismiss the remaining counts of the indictment. The State further agreed to recommend that defendant's sentence be served concurrently with a sentence he was then serving for another conviction. At sentencing, the trial court accepted these recommendations and imposed sentence accordingly.
Defendant thereafter appealed his sentence, and the matter was heard on an Excessive Sentence Oral Argument calendar. We affirmed defendant's sentence but remanded the matter for consideration of the proper amount of jail credits and gap-time credits to which defendant might be entitled. State v. Moore, No. A-3581-02T4 (App. Div. June 5, 2003). The parties submitted letter briefs to the trial court on the question, and the trial court entered an amended judgment of conviction awarding defendant 449 days of gap-time credit, in accordance with the calculations of defendant's attorney.
Defendant filed a pro se petition for post-conviction relief in which he alleged that his trial attorney had been ineffective in failing to prepare a defense and retrieve medical data relating to defendant's mental state and that he had not received all of the credits to which he was entitled. Counsel representing defendant in connection with his petition for post-conviction relief submitted detailed information about defendant's history with respect to substance abuse and mental health and argued that the attorney who had represented defendant originally was ineffective for not presenting that to the court for its consideration at the time of sentencing. The trial court carefully reviewed the material submitted and, after hearing oral argument, denied defendant's petition. This appeal followed. On appeal, defendant raises the following arguments:
POINT 1 THE COURT SHOULD EXERCISE ITS ORIGINAL SENTENCING JURISDICTION BY ALLOCATING THE GAP-TIME CREDITS TO REDUCE THE BASE TERM UPON WHICH THE NERA 85% PAROLE DISQUALIFIER IS PREDICATED. (Not raised below)
POINT 2 THE MATTER MUST BE REMANDED TO ALLOCATE THE GAP-TIME CREDITS TO REDUCE THE BASE TERM UPON WHICH THE NERA 85% PAROLE DISQUALIFIER IS PREDICATED. (Not raised below)
POINT 3 THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST-CONVICTION RELIEF.
POINT 4 THE COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.
The trial court sentenced defendant to a term of thirteen years in prison for first-degree robbery and specified, in accordance with N.J.S.A. 2C:43-7.2, that defendant must serve 85% of that sentence, that is, eleven years and eighteen days, before becoming eligible for parole. Defendant argues that the four hundred forty-nine days of gap-time credit to which he is entitled should be applied to the thirteen-year sentence before calculating the 85% period of parole ineligibility. Adopting defendant's manner of calculation would have the effect of reducing defendant's thirteen-year base term to eleven years, two hundred eighty-one days; defendant contends that the 85% parole disqualifier should be applied to that reduced term. This would have the effect of reducing defendant's mandatory minimum period of confinement to approximately ten years.
We reject this argument. Gap-time credit may not be used to reduce a mandatory period of parole ineligibility. Booker v. N.J. State Parole Bd., 136 N.J. 257, 263 (1994). That principle is fully applicable to periods of parole ineligibility imposed pursuant to N.J.S.A. 2C:43-7.2. Meyer v. N.J. State Parole Bd., 345 N.J. Super. 424, 429-30 (App. Div. 2001), certif. denied, 171 N.J. 339 (2002).
Defendant also argues that his gap-time credit should be utilized to affect the five-year period of parole supervision to which he will be subject under N.J.S.A. 2C:43-7.2 once he is released from incarceration. We rejected a similar argument in Salvador v. Dep't of Corrections, 378 N.J. Super. 467 (App. Div. 2005), cert. denied, 185 N.J. 295 (2005). We acknowledge that in Salvador we considered the question in terms of commutation and work credits, not gap-time credits. Id. at 468. We can perceive no principled distinction between the two, however, in terms of the relief defendant is seeking.
Because we are satisfied that there is no legal merit with respect to defendant's argument on the allocation of his gap-time credits, it must follow that there is no merit with respect to his arguments that the attorney who represented him on his petition for post-conviction relief was ineffective for not raising the question and that the trial court erred in not allocating his gap-time credits in that manner. State v. Fritz, 105 N.J. 42, 60-61 (1987); R. 2:11-3(e)(2).
Finally, we note that we disapprove of the attempt by defendant's counsel to incorporate by reference in his brief arguments asserted in another, unrelated, pending appeal.
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