April 27, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PHILIP M. BELTON, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 03-06-00322; 03-09-00569.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 21, 2011
Before Judges Lisa and Sabatino.
Defendant, Philip M. Belton, Jr., appeals from the October 19, 2009 order denying his petition for post-conviction relief (PCR). Defendant is serving an aggregate sentence of seven years imprisonment, subject to an 85% parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, arising out of the sentences imposed on May 20, 2005 on two separate Somerset County indictments.
The sentences on these indictments were ordered to be served concurrently, in accordance with defendant's plea agreement with the State. They were also ordered to be served concurrently with sentences defendant was already serving that had been imposed in Hudson and Essex Counties. Although this aspect of the concurrency was not part of defendant's Somerset County plea agreement, the Somerset County prosecutor did not object, based upon the representation of defendant's counsel that the judges in Hudson and Essex Counties had expressed their intention that their sentences run concurrently with each other and with any sentence to be later imposed in Somerset County on defendant's pending charges there.
The sole issue raised in defendant's PCR proceeding was that his attorney was deficient at the time of his sentencing for not arguing that the court should have awarded defendant 113 days of discretionary jail credits. Defendant also sought an evidentiary hearing. The PCR court denied defendant's petition and declined to conduct an evidentiary hearing.
On appeal, defendant argues:
TRIAL COUNSEL'S FAILURE TO MOVE FOR DISCRETIONARY JAIL CREDITS AT THE TIME OF SENTENCING CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL ENTITLING DEFENDANT TO POST CONVICTION RELIEF.
REMAND FOR AN EVIDENTIARY HEARING ON POST CONVICTION RELIEF IS REQUIRED BECAUSE THE DEFENDANT HAS PUT FORTH PRIMA FACIE EVIDENCE ENTITLING HIM TO SUCH RELIEF.
We reject these arguments and affirm.
Somerset County Indictment No. 03-06-00322 charged defendant with second-degree robbery and fourth-degree resisting arrest. The underlying incidents occurred on April 19, 2003. Somerset County Indictment No. 03-09-00569 charged defendant in seven counts for conduct arising out of a single incident on August 1, 2003. The first three counts charged possession, possession with intent to distribute, and possession with intent to distribute within 1000 feet of a school a controlled dangerous substance (CDS), namely, heroin. Counts four, five and six, contained similar charges, with respect to a different CDS, namely, cocaine. Count seven charged fourth-degree exhibiting a fraudulent motor vehicle insurance card.
On October 25, 2004, defendant appeared before the court for the purpose of entering a plea to these charges. A plea agreement had been completed and signed. However, in the course of the colloquy, defendant expressed the view that he was not guilty of the robbery charge and declined to provide a factual basis in support of that charge. Therefore, it was determined that the matters would proceed toward a trial listing and would return to court at a later date for further proceedings.
On November 19, 2004, the matter again came before the court. This time, defendant did plead guilty to the robbery charge and did provide a sufficient factual basis for it. He also pled guilty to the resisting arrest count in that indictment. With respect to the indictment containing the drug charges and the fraudulent insurance card charge, defendant pled guilty to the three counts dealing with cocaine and the fraudulent insurance card charge, and he provided a sufficient factual basis for those offenses. However, he did not plead guilty and did not provide a factual basis for the three counts pertaining to heroin.
The matter was set down for sentencing on January 28, 2005. At defendant's request, he was remanded to State prison while awaiting sentencing. Defendant was serving his sentences on the Hudson and Essex County charges. He had been sentenced for those charges on May 7, 2004 and September 17, 2004, respectively.
When the case came before the court on January 28, 2005, both counsel acknowledged that there had been an apparent misunderstanding as to the completeness of defendant's plea.
The prosecutor insisted that the State's understanding was that defendant would plead to all counts in both Somerset County indictments. Defense counsel expressed the understanding that the three heroin counts would be dismissed. Defense counsel requested an adjournment of about three weeks to clarify the matter. The case was rescheduled for April 1, 2005.
On April 1, 2005, defendant returned to court and pled guilty to all of the charges, including the three heroin counts. He provided a sufficient factual basis for all of the charges and the plea was accepted as to all of the charges.
On May 20, 2005, defendant was sentenced on all of the charges in both Somerset County indictments. Pursuant to the plea agreement, the aggregate sentence was seven years imprisonment subject to an 85% NERA parole disqualifier. As requested by the defense, and without opposition from the State, the judge ordered that the sentences would run concurrently with the sentences defendant was already serving on charges from Hudson and Essex Counties. The judge awarded defendant gap time credit of 378 days from May 7, 2004 (the earlier of the previous sentences) to May 19, 2005 (the day before the new sentence). See N.J.S.A. 2C:44-5b(2).
Defendant subsequently filed a motion for reconsideration of his sentence. One of the bases for this motion was his contention that for the 113 days from his original Somerset County sentencing date of January 28, 2005 until the date of his actual sentence on May 20, 2005, he should have been awarded "straight" jail credit pursuant to Rule 3:21-8, instead of gap time credit pursuant to N.J.S.A. 2C:44-5b(2). The difference is that with straight jail credit, defendant would have received credit against the front end of his sentence, including his NERA period of parole ineligibility, rather than from the back end of his sentence. Defendant's motion was denied on November 17, 2005. The judge noted that, while he sympathized with defendant, "there's nothing before me to convince me that the Defendant's delay in sentence was unreasonable in light of the number of charges that he was confronted with in the various jurisdictions, as argued by the Prosecutor. Therefore, I . . . deny your application with regard to a credit for four months."
Defendant did not appeal from that order. Instead, twoand-one-half years later, on June 26, 2008, defendant filed his PCR petition. He claimed he was deprived of the effective assistance of counsel at the time of his sentencing because his attorney should have argued for the award of discretionary straight jail credits for the disputed 113 days. Defendant acknowledges that these 113 days were not of the sort generally covered by Rule 3:21-8, because he was not in custody during those days in default of bail on the Somerset County charges for which he was ultimately sentenced. However, he claims that in its discretion, the sentencing court could have and should have awarded him straight jail credit for those days in order to fulfill his expectation of obtaining the full benefit of concurrency of his Somerset County sentence with the sentences he was serving arising out of Hudson and Essex Counties.
The PCR court rejected defendant's argument. The court described the Strickland/Fritz*fn1 test, by which a PCR petitioner must establish two prongs to be entitled to relief, namely that his attorney's conduct fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. The judge found that defendant did not satisfy either prong. He summarized it this way:
Here the decision of an attorney not to move for unobtainable jail credits would not amount to a deficient performance prejudicing the defendant. In fact, this court is in agreement with the prosecution that the petitioner was not entitled to receive discretionary jail credits because he was serving time on a previously-imposed sentence for other charges.
In the course of his analysis, the judge rejected defendant's reliance on State v. Grate, 311 N.J. Super. 456 (1998). The judge found the facts and circumstances in that case, which allowed discretionary credits, materially distinguishable from the present case. We agree with the judge's analysis in that regard. We also reject defendant's reliance on appeal on Breeden v. New Jersey Department of Corrections, 132 N.J. 457 (1993). That case, too, is materially distinguishable.
Essentially, defendant's argument is that discretionary straight jail credits could have been awarded here because "[t]here is no statute or case law which prevents the awarding of discretionary jail credits to alleviate the prejudice suffered from the delay in sentencing." However, this argument overlooks the statutory mandate applicable to gap time credit, which requires that [w]hen a defendant who has previously been sentenced to imprisonment is subsequently sentenced to another term for an offense committed prior to the former sentence . . . the defendant shall be credited with time served in imprisonment on the prior sentence in determining the permissible aggregate length of the term or terms remaining to be served. [N.J.S.A. 2C:44-5b(2).]
Thus, there is a statute that precludes the kind of discretionary credits defendant is seeking in this case. The statute mandates that in these circumstances "the sentencing judge must aggregate and allow a proper credit against the aggregate term or terms remaining to be served." State v. Richardson, 208 N.J. Super. 399, 414 (App. Div.), certif. denied, 105 N.J. 552 (1986). Gap time credits are a creature of statute. They are mandatorily applied, and they cannot be "converted" to straight jail credit as a matter of judicial discretion.
We further note that the delay in sentencing was of short duration, caused in part by defendant, and not occasioned by any prosecutorial impropriety. It is also significant that the concurrency of the Somerset County sentence with his pre-existing sentences was not a term of defendant's Somerset County plea agreement and the Somerset County judge was not obligated to grant it without first allowing defendant the opportunity to withdraw his plea.
Accordingly, we agree with the PCR judge that counsel's conduct was not deficient for failing to make a futile argument. And, there was no prejudice to defendant because, had the argument been made, it would have been rejected.
Defendant's remaining argument, that he was wrongfully denied an evidentiary hearing in his PCR proceeding, is completely lacking in merit and does not warrant discussion in a written opinion. R. 2:11-3(e)(2).