November 20, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RICHARD W. JOHNSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 03-02-0116.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 appeals from the September 8, 2008 order of the sentencing court, raising the following points of argument:
THE DEFENDANT IS GENERALLY ENTITLED TO SERVE AN UNINTERRUPTED SENTENCE, UNLESS BROKEN BECAUSE OF ESCAPE, VIOLATION OF PROBATION, OR PAROLE, OR SOME OTHER FAULT OF THE DEFENDANT. State v. Williams, 410 A.2d 251, 81 N.J. 498.
THE DEFENDANT SHALL RECEIVE CREDIT ON THE TERM OF A CUSTODIAL SENTENCE FOR ANY TIME SERVED IN JAIL OR IN A STATE HOSPITAL BETWEEN ARREST AND THE IMPOSITION OF A SENTENCE R. 3:21-8.
THE COURT ADMITTED TO PROPER JAIL CREDIT OWED TO DEFENDANT, THEN ABUSED ITS DISCRETION BY THE MISAPPROPRIATION OF THOSE CREDITS IN THE MANNER OF CALCULATION AND DISBURSEMENT.
Citing State v. Williams, 81 N.J. 498 (1980), defendant contends that he is entitled to serve his sentence without interruption on the Somerset County charge, and so, the entire period from his arrest on February 1, 2003, through his sentencing on November 29, 2005, must be recognized as jail time credit on that charge. That calculation would add 194 days to the 841 days of jail time credit awarded.*fn1 Although Williams includes a statement that "[a] defendant is generally entitled to serve an uninterrupted sentence, unless because of escape, violation of probation or parole, or some other fault of the defendant," id. at 500, that case has nothing to do with jail time credit on separate charges. The quoted statement refers to a single sentence that the defendant was serving.
Defendant is not entitled to duplication of jail time credit for one sentence when he was serving a sentence on a separate charge. See State v. Black, 153 N.J. 438, 461 (1998); State v. Hugley, 198 N.J. Super. 152, 160-61 (App. Div. 1985). In State v. Hemphill, 391 N.J. Super. 67, 70-71 (App. Div.), certif. denied, 192 N.J. 68 (2007), we said, "The credit is only permissible for a period of incarceration attributable to the crime for which the sentence is imposed . . . . The credit is impermissible if the confinement is due to service of a prior-imposed sentence or another charge."
In this case, the Somerset County court granted defendant jail time credit for all days from February 1, 2003, through November 28, 2005, the day preceding sentencing on the Somerset County charge, except for the 127 days from September 25, 2003, through January 29, 2004, that defendant served for the Middlesex County charge and the 67 days from June 10 through August 15, 2005, that he served for the Borough of Somerville charge. Defendant was not entitled to duplication of jail time credit for those periods of incarceration.
Because defendant committed the Somerset County bank robbery before he was sentenced on the charge in the Borough of Somerville, he was entitled to and was granted 67 days of gap time credit pursuant to N.J.S.A. 2C:44-5b(2) on his Somerset County sentence. Gap time credit reduces the aggregate length of defendant's sentence.
Finally, defendant argues that his sentences should be deemed to have run concurrently, thus entitling him to credit on all sentences for every day that he was incarcerated. The Middlesex County and Borough of Somerville sentences were both completed before defendant was sentenced on the Somerset County charge. Consequently, no issue of concurrent or consecutive sentences was before the sentencing courts.