February 5, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GABRIEL IANNACONE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Passaic County, Indictment Nos. 05-08-1087, 05-07-0987, 04-09-1416, 03-12-2343, 00-11-0354, 00-11-0355, 00-11-0356, S-0593-04, S-1487-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 21, 2010
Before Judges Stern and Sabatino.
Defendant entered a multi-county negotiated disposition involving nine indictments. See R. 3:25A-1. The State recommended an aggregate sentence of fourteen years in the custody of the Commissioner of Corrections with seven years to be served before parole eligibility--based on two recommended consecutive five-year sentences with two-and-a-half years to be served before parole eligibility on theft charges embodied in two indictments, a consecutive four-year sentence with two years to be served before parole eligibility on an indictment charging aggravated assault, and concurrent sentences on other indictments. Defendant received an aggregate sentence of thirteen years in the custody of the Commissioner of the Department of Corrections, with six years of parole ineligibility, based on consecutive five-year sentences, with two-and-a-half years to be served before parole eligibility each, on Hudson County and Monmouth County indictments for theft offenses and a three-year sentence with one year before parole eligibility on an aggravated assault from Passaic County.
The judge gave defendant 204 days of jail credit on two indictments. They were on judgments embodying concurrent sentences to the aggregate term imposed. The defendant also requests 628 more days of jail credit based on the exercise of the court's "discretionary power." That is the time he had served on another Bergen County sentence, between June 11, 2004 and February 26, 2006.
The judge appears to have given a sentence less than the negotiated maximum because there was a delay in negotiating the agreement defendant finally entered and in sentencing defendant. The Code of Criminal Justice endeavored to resolve the problem of delayed dispositions while defendants are in jail by the concept of "gap time" credits. See N.J.S.A. 2C:44-5b(2). See also, e.g., State v. Franklin, 175 N.J. 456, 461-62 (2003).
Jail credits are awarded only for time in custody "directly attributable" to the matter for which defendant is incarcerated, and one is not entitled to jail credits for pretrial incarceration while serving a sentence. State v. Hemphill, 391 N.J. Super. 67, 70-71 (App. Div.), certif. denied, 192 N.J. 68 (2007); State v. Hill, 208 N.J. Super. 492, 495 (App. Div.), certif. denied, 104 N.J. 412 (1986); State v. Allen, 155 N.J. Super. 582, 584-85 (App. Div.), certif. denied, 77 N.J. 472 (1978); State v. Council, 137 N.J. Super. 306, 308 (App. Div. 1975). But see State v. Grate, 311 N.J. Super. 456, 556 (App. Div. 1998). "Jail credits" are awarded because of due process and equal protections for people who cannot make bail so they do not serve more time for the same sentence than those that do, not as a matter of discretion while other sentences are being served. Defendant cannot argue that he is entitled to more "jail credits" for the sentencing merely because he was in jail and could not make bail for another charge that was not "directly attributable" to the charge for which he is being sentenced. State v. Hemphill, supra, 391 N.J. Super. at 70.
One of the reasons defendant asserts that the discretion should be exercised is because he thought, upon entering his plea, that he would get them. If so, his remedy would be to seek to withdraw his plea with the resurrection of all charges, not credits to which he is not entitled. See State v. Mastapeter, 290 N.J. Super. 56, 61 (App. Div.), certif. denied, 146 N.J. 569 (1996). However, as defendant pled guilty in March 2006, and was sentenced in August 2006 for offenses occurring before the sentences imposed on June 11, 2004 on three Bergen County indictments,*fn1 he does not seem to have received gap time credits on all the indictments involving offenses occurring before the June 2004 sentence. See N.J.S.A. 2C:44-5b(2). Accordingly, we remand for reconsideration of defendant's gap time credits on all convictions.
The use of aggravating factor eleven was in error. State v. Dalziel, 182 N.J. 494, 502-03 (2005). However, it could not have affected the sentence. Cf. id. at 506. While the structure of the sentence may have been awkward with one sentence below midrange, defendant has sixteen prior convictions, and the judge structured the overall sentence so as not to violate the controlling maximum under the negotiated sentence while considering the aggravating and mitigating factors. See State v. Sainz, 107 N.J. 283, 293-94 (1987).
In his pro se supplemental brief, defendant also raised the following contentions:
MY RIGHTS AS AFFORDED BY THE INTERSTATE AGREEMENT ON DETAINERS (IAD), "SPEEDY TRIAL" ACT, & DOCTRINE OF COMITY, WERE VIOLATED UPON MY TRANSFER TO THE STATE OF NEW YORK DURING THE PENDANCY OF MY CURRENT CONSOLIDATED PLEA & SENTENCING, WITHOUT THERE [SIC] RESOLUTION PRIOR TO TRANSFER. (Raised below)
A. THE STATE VIOLATED MY IAD RIGHTS, WHEN I WAS FORCED TO SIGN THE IAD, AND THEN SUBSEQUENTLY FORCED TO PROCEED TO THE STATE OF NEW YORK, BEFORE ALL OF MY NEW JERSEY INDICTMENTS/DETAINERS WERE RESOLVED. (Raised below)
B. THE STATE VIOLATED MY "SPEEDY TRIAL" RIGHTS BY FAILING TO ACT ON ALL OF MY INTRASTATE DETAINERS/CHARGES BEFORE MY TRANSFER TO THE STATE OF NEW YORK VIA THE INTERSTATE AGREEMENT ON DETAINERS. (Raised below)
C. THE STATE THROUGH THE DEPARTMENT OF CORRECTIONS VIOLATED THE DOCTRINE OF COMITY WHEN IT ALLOWED ME TO PROCEED TO ANOTHER JURISDICTION WITHOUT ALL UNTRIED DETAINERS/CHARGES BEING DISPOSED OF PRIOR TO TRANSFER TO THE STATE OF NEW YORK. (Raised below)
THE STATE & COURT HAVE SENTENCED ME CONTRARY TO MY CONSOLIDATED PLEA AGREEMENT. (Not raised below)
THE COURT FAILED TO HAVE A RESTITUTION HEARING AS TO MY ABILTY [SIC] TO MAKE RESTITUTION, AND ACCESS WHAT RESTITUTION HAS ALREADY BEEN MADE. (Not raised below)
Except for the restitution point, we believe only the following comments are necessary. R. 2:11-3(e)(2).
Defendant asserts he was denied his right to a speedy trial and rights under the Interstate Agreement on Detainers. But his claims were waived by his guilty pleas. Under our rules all claims not preserved for appeal, except those relating to sentencing, were waived by the plea. See R. 3:9-3(f). The issues he now raises were not preserved for appeal at the time of plea. However, even though defendant agreed to pay restitution at the time of plea, defendant is entitled to a restitution hearing with regard to the terms and amounts to be imposed. See N.J.S.A. 2C:44-2; State v. Newman, 132 N.J. 159 (1993); State v. Harris, 70 N.J. 586 (1976).
We affirm the sentences imposed, but remand for consideration of restitution and gap time credits, but not jail time credits.