On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-6-2157.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 22, 2010
Before Judges Rodríguez and Reisner.
Defendant LaGrant Greer appeals from a June 5, 2008 order denying his petition for post-conviction relief (PCR). We affirm the decision of the trial judge, but we remand pursuant to State v. Rue, 175 N.J. 1 (2002), for consideration of an additional issue that defendant's PCR counsel should have presented on his behalf.
Defendant was indicted in Essex County 1999 for sexual offenses he allegedly committed in 1998. At the time of the alleged sex offenses, he was on parole from a Hudson County robbery sentence from 1992. While on parole, defendant moved to Georgia. While living in Georgia he was arrested in 2002 on unrelated charges and sentenced to ten years in prison in Georgia. A warrant was issued in 1998 on the Hudson County parole violation but it was not enforced until years later. Early in 2006,*fn1 defendant was extradited from Georgia to New Jersey on the Hudson parole violation. While in New Jersey, on June 6, 2006, he also resolved the 1999 Essex County indictment by pleading guilty to one count of endangering the welfare of a child. N.J.S.A. 2C:24-4a. On September 29, 2006, he was sentenced to three years in prison on the Essex conviction, concurrent to the Hudson County sentence he was then serving, and concurrent to the Georgia sentence.
Defendant did not file a direct appeal from the three-year sentence, but filed a petition for post-conviction relief. In a written opinion dated June 5, 2008, Judge Furnari rejected defendant's argument that his counsel was ineffective in not arguing for gap time credits. Citing State v. Hugley, 198 N.J. Super. 152, 161 (App. Div. 1985), Judge Furnari concluded that gap time was not available for time served on an out-of-state sentence. Therefore, defendant was not entitled to gap time credit for time spent in prison in Georgia. Citing State v. Harvey, 273 N.J. Super. 572, 575-76 (App. Div 1994), the judge also concluded that defendant was not entitled to time spent in prison pending trial on the Essex County charges, because his incarceration at that time was due to the Hudson County parole detainer. The judge further found no record support for defendant's claim that he entered his guilty plea on the understanding that he would be entitled to jail credits.
During the PCR hearing, defendant's counsel*fn2 acknowledged that defendant had also raised an issue concerning the validity of an arrest warrant in his pro se PCR petition. However, his counsel advised the PCR judge that she had explained to defendant that gap time was his strongest issue and that if he delayed the matter by trying to obtain a copy of the old arrest warrant, he might "max out" by the time his PCR was heard. However, counsel also advised the judge that, after she had that conversation with him, defendant wrote her a letter insisting that she raise the warrant issue. But she did not do so.
On this appeal, defendant again raises the gap time issue, and contends that his PCR counsel should have pursued the warrant issue. Addressing the gap time issue, as it relates to prison time defendant served in Georgia and in New Jersey, we first conclude that defendant is procedurally barred by Rule 3:22-4 from raising this claim because it could have been raised on a direct appeal. However, we also conclude that defendant's arguments concerning gap time are without merit and warrant no extended discussion here. R. 2:11-3(e)(2). We reach the same conclusion with respect to the argument that defendant pled guilty on the understanding that he would receive jail credits.
R. 2:11-3(e)(2). We affirm on these issues for the reasons stated in Judge Furnari's cogent opinion.
The State agrees that, pursuant to State v. Rue, supra, 175 N.J. at 18-19, PCR counsel should have raised the warrant issue, and the State consents to a remand for that purpose. Accordingly, we remand this matter to the trial court to permit defendant, through his counsel, to challenge the validity of the arrest ...