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State of New Jersey v. Muhammad Irving

March 24, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MUHAMMAD IRVING, A/K/A BRIAN IRVING, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment Nos. 06-06-0838; 06-12-1659; 06-12-1660; 06-12-1661; 06-12-1674; 06-12-1675; 06-12-1676; 07-01-0034; 07-01-0035; 07-01-0063 and 07-01-0071.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 22, 2011

Before Judges Kestin and Newman.

Defendant Muhammad Irving appeals from an order denying his petition for post-conviction relief (PCR). We now affirm.

Defendant pled guilty to fourteen counts of third-degree burglary and one count of third-degree theft. His burglary spree was attributable to his need for funds to support his drug dependency. Except for one burglary and the theft, the remaining burglaries all involved commercial establishments.

Defendant entered into a plea agreement where he would receive an aggregate sentence of nine years with four years of parole ineligibility. This sentence was to run concurrent with other charges in Essex and Union County. He was sentenced in Essex County a few days before he entered this plea on January 30, 2007, and was scheduled to be sentenced in Union County on February 2, 2007.

At the time of the taking of the plea, the amounts of restitutions for the various burglaries and thefts were placed on the record and were not disputed by defendant. Two of the commercial establishments had not yet presented their restitution claims, but it was anticipated that they would. In fact, those restitution claims were placed on the record at the time of sentencing, and again, there was no dispute as to the amounts. Defendant had been housed at the Essex County Correctional Center on the charges emanating from that county and was transported to Morris County for his court appearances. His attorney, however, did visit him in Essex County during the course of the representation.

At sentencing, Judge Ahto asked defendant if he was related to an Irving who the judge had played football with as a teenager in 1952. It turned out that defendant's father was the same teammate. Judge Ahto indicated that he could not recall having any contact with defendant's father since high school, which was almost fifty-five years ago. No motion to recuse the judge was made.

Judge Ahto sentenced defendant in accord with the plea agreement. He also awarded defendant seventy-eight days of gap-time credit, representing the time from defendant's sentence in Essex County until April 13, 2007, the date of defendant's Morris County sentencing. Defendant was not awarded any jail time credits. Defendant did not appeal from the sentence imposed by the court.

On October 2, 2008, defendant moved for jail credits. That motion was denied by Judge Ahto on March 28, 2008. Judge Ahto denied any credit, indicating that Rule 3:21-8 contemplates jail credits for confinement attributable to the arrest or detention resulting from a particular offense. Since defendant was held in Essex County on the charges there, no basis to award him credit on the charges in Morris County was present. Defendant did not appeal from the order denying jail credits.

On October 2, 2008, defendant filed the present pro se petition for PCR and was assigned counsel to represent him. Defendant claimed that he had been denied effective assistance of counsel. While his petition did not make his argument clear, he contends on appeal that the ineffectiveness related to his attorney's failure to move for a consolidated disposition. He asserts that had he been successful in consolidating the offenses from all three counties into the same county, he would have received the jail credits that he was denied.

Defendant also argues that his attorney had indicated that Judge Ahto was "good on jail credits." Apparently, defendant understood this to mean that he would receive jail credit for all the time that he had been incarcerated, including the imprisonment in Essex County. He argued that he was misinformed prior to the plea agreement, although he was not seeking to withdraw his plea. Rather, he believes that he should be awarded those jail credits as a matter of fairness.

Defendant also asserted that his attorney was ineffective by not calling for the recusal of Judge Ahto who knew his father. Defendant further maintained that the amount of restitution that he was ordered to pay at sentencing differed from the amount agreed to at the time of the plea. He was ...


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