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State v. Johnson

November 20, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RICHARD W. JOHNSON, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 03-02-0116.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 20, 2009

Before Judges Lihotz and Ashrafi.

Defendant Richard W. Johnson appeals the number of days of jail time credit he received on a twelve-year sentence for robbery. We affirm.

Defendant was arrested on February 1, 2003, and charged with bank robbery in Somerset County. He did not make bail and was lodged in the Somerset County Jail. On February 27, 2003, a Somerset County grand jury indicted defendant on one count of second-degree robbery, in violation of N.J.S.A. 2C:15-1a(2).

On May 15, 2003, a Middlesex County grand jury indicted defendant on one count of third-degree conspiracy, in violation of N.J.S.A. 2C:5-2, and one count of third-degree theft, in violation of N.J.S.A. 2C:20-3. On September 25, 2003, defendant appeared in Middlesex County on its charges and pleaded guilty to the Middlesex County indictment. He was sentenced to four years' imprisonment on those charges on January 29, 2004. He received 127 days of jail time credit on the Middlesex County sentence.

On appeal of his Middlesex County sentence on a sentencing calendar pursuant to Rule 2:9-11, we remanded by order dated November 15, 2004, for re-sentencing on a disorderly persons charge of theft rather than third-degree conspiracy and theft. On remand, the Middlesex County court re-sentenced defendant to 127 days, time already served on the Middlesex County charge from September 25, 2003, to January 29, 2004. Consequently, defendant's sentence in Middlesex County was completed as of the re-sentencing date.

Defendant returned to Somerset County, where he stood trial on the bank robbery indictment in March 2005. The jury found him guilty.

While awaiting sentencing on the Somerset County conviction, defendant appeared in the municipal court of the Borough of Somerville on June 10, 2005, and was sentenced to ninety days in jail on a disorderly persons charge of offensive touching. He completed that sentence on August 15, 2005, after serving sixty-seven days.

On November 29, 2005, defendant appeared for sentencing on the Somerset County conviction for second-degree bank robbery. The court granted the State's motion to sentence defendant within the first-degree range as a persistent offender under N.J.S.A. 2C:44-3a. The court sentenced defendant to twelve years in prison with eighty-five percent to be served before parole under the No Early Release Act, N.J.S.A. 2C:43-7.2. The court granted defendant 480 days of jail time credit under Rule 3:21-8 and 426 days of gap time credit under N.J.S.A. 2C:44-5b(2).

Defendant moved for correction of the jail time credit. On May 9, 2007, the sentencing court granted defendant's motion and recalculated the credits to 841 days of jail time credit and 67 days of gap time credit.

On direct appeal of the Somerset County case, we affirmed the conviction but remanded for re-sentencing because an intervening decision of the Supreme Court in State v. Pierce, 188 N.J. 155, 170-72 (2006), changed the standard for extended term sentencing under the persistent offender statute, N.J.S.A. 2C:44-3a. State v. Johnson, No. A-1795-05T4 (App Div. January 23, 2008).

On remand, the court sentenced defendant to the same sentence of twelve years, with eighty-five percent without parole. In July 2008, defendant moved again for adjustment of jail time credit. On September 8, 2008, the Somerset County court denied defendant's motion, stating its findings and conclusions that 841 days of jail time credit and 67 days of gap time credit were correct under the law. Defendant ...


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