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State v. Allen

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 18, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
COREY J. ALLEN, A/K/A CORY ALLEN, JAMALL ALLEN AND CORI JAMALL ALLEN, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-06-0830.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 14, 2009

Before Judges Grall and Gilroy.

This is an appeal from a denial of post-conviction relief. After reaching an agreement encompassing sentencing and the dismissal of pending charges, defendant Corey J. Allen entered a plea of guilty to a charge of second-degree robbery, N.J.S.A. 2C:15-1. He was sentenced to a six-year term of imprisonment, one year less than the sentence the State agreed to recommend. The sentence is subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. As contemplated by the plea agreement, the sentence is concurrent with a sentence for a second-degree robbery defendant committed in Mercer County, which he was serving when he was sentenced for this second-degree robbery. Pursuant to N.J.S.A. 2C:44-5, defendant was awarded "gap time" credits for the ninety-seven-day period between his sentencing in Mercer County and his sentencing in Middlesex County.

Defendant was not awarded any jail credits on this sentence. Because he was arrested for and confined on account of the Mercer County charge between January 20, 2005 and his sentencing in Mercer County on March 10, 2006, he was awarded jail credits for the 415-day period between the January 20, 2005 arrest and the March 10, 2006 sentencing as time served on the Mercer County sentence. On January 28, 2005, defendant was arrested for the Middlesex County robbery and bail was set on that charge, but he was already confined on the Mercer County charge. For that reason, the judge did not award jail credits against the sentence imposed for the Middlesex County robbery.

Defendant did not appeal from the judgment of conviction and sentence entered in Middlesex County. Instead, claiming entitlement to jail credits against his Middlesex County sentence, defendant filed a petition for post-conviction relief.

The trial judge denied the petition. He reasoned that the jail credits had been awarded against the Mercer County sentence and were not available to reduce this sentence. The judge also observed that he had imposed a sentence one year lower than the sentence contemplated by defendant's plea agreement, which ameliorated the impact of the interval between the sentencing proceedings in Mercer and Middlesex Counties.

Defendant raises the following issues on appeal from the denial of his petition for post-conviction relief:

I. THE DEFENDANT SHOULD HAVE BEEN GIVEN 415 DAYS OF JAIL TIME CREDIT FOR THE TIME THAT HE WAS INCARCERATED FOR THE MIDDLESEX COUNTY ROBBERY CHARGE FROM JANUARY 28, 2005 THROUGH MARCH 10, 2006 IN ADDITION TO 97 DAYS' GAP TIME.

II. THE SENTENCE IMPOSED WAS ILLEGAL AND MUST BE VACATED.

III. THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY HIS APPOINTED ATTORNEY, CULMINATING IN HIS GUILTY PLEA IN VIOLATION OF THE NEW JERSEY AND UNITED STATES CONSTITUTIONS. (Partially Raised Below).

A. The Defendant was Denied the Effective Assistance of Counsel Because At No Point Before His Plea or Sentencing Was a Motion Made to Consolidate the Charges Pending in Mercer County and Middlesex County into One County Prior to Disposition. (Not Raised Below).

B. PCR Counsel Failed to Raise the Consolidation Issue and Was Deficient. [(Not Raised Below).]

C. Ineffective Assistance of Counsel is Evident in This Case Because Trial Counsel Failed (1) to Properly Investigate the Case; (2) Did Not Provide the Defendant with Discovery; (3) Did Not Communicate with the Defendant; and (4) Pressured the Defendant into Pleading Guilty.

D. PCR Counsel failed to elaborate on any of the issues raised in POINT III(c). [(Not Raised Below).]

IV. THE PCR COURT SHOULD HAVE CONDUCTED AN EVIDENTIARY HEARING TO DETERMINE THE INEFFECTIVE ASSISTANCE OF COUNSEL ISSUE AND OTHER ISSUES RAISED IN THE DEFENDANT'S POST-CONVICTION RELIEF PETITION.

V. REVERSAL IS REQUIRED IN THIS CASE BECAUSE OF THE CUMULATIVE EFFECTS OF THE ERRORS DURING THE SENTENCING HEARING AND INEFFECTIVENESS OF APPOINTED TRIAL COUNSEL.

The arguments raised in Points II, IV and V of defendant's brief lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We address the remaining issues in the paragraphs that follow.

The argument advanced in Point I is that the trial judge erred by declining to exercise discretion and award jail credits against the Middlesex County sentence that duplicated jail credits awarded against the Mercer County sentence. We disagree.

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." Although "[n]either the Criminal Code nor the Rules address the propriety or permissibility of giving an inmate jail credit against more than one sentence," State v. Black, 153 N.J. 438, 456-57 (1998), jail credits generally are understood to "appl[y] to confinement attributable to the offense that gave rise to the sentence." State v. Carreker, 172 N.J. 100, 115 (2002). As this court has observed, jail "credit is impermissible if the confinement is due to service of a prior-imposed sentence or another charge." State v. Hemphill, 391 N.J. Super. 67, 71 (App. Div.), certif. denied, 192 N.J. 68 (2007). Defendant's confinement from January 20, 2005 forward was attributable to the second-degree robbery charge pending in Mercer County. For that reason the trial court's application of Rule 3:21-8 was not inconsistent with the precedents. Moreover, the denial of jail credits did not deprive defendant of the benefit of his plea agreement, which was for concurrent, not coterminous, sentences.

The arguments raised in Points III A and B of defendant's brief were not raised below, and for that reason we decline to consider them on appeal. That approach conforms with the "general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992).

Affirmed.

20090918

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