January 25, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID FIGUEROA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 03-02-0195.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 21, 2011
Before Judges Axelrad and Ostrer.
Defendant David Figueroa appeals from the February 3, 2009 order denying his pretrial motion to dismiss the indictment against him based on lack of a speedy trial. He also challenges the denial of gap time credits. He preserved both issues when he pled guilty to two counts of armed robbery. We affirm.
On February 13, 2003, an Ocean County grand jury returned a three-count indictment, I-03-02-195, against defendant and two co-defendants. The indictment charged defendant and co-defendants with three counts of first-degree armed robbery, N.J.S.A. 2C:15-1 (counts one, two, and three), resulting from an incident that occurred on October 22, 2002, in which they held up two people at gunpoint in their car and demanded money.
The following facts are contained in the motion record and are undisputed. Defendant began serving an unrelated five-year prison sentence at the Greene Correctional Facility in New York on October 31, 2003, with an anticipated completion date in June 2007. On October 17, 2006, the New York facility sent a letter signed by Inmate Records Coordinator Jennie Lugo to the Ocean County Sheriff's Department, advising that it had received and lodged a detainer on behalf of New Jersey against defendant in relation to the subject indictment. The letter reflects it was copied to the inmate and instructs that if the inmate "wish[es] a speedy trial" in accordance with the Interstate Agreement on Detainers (IAD), "[he should] sign the original of the attached form*fn1 and return it to [Lugo's] office."
On January 10, 2007, Melissa Barbier, Esquire, the Assistant Public Defender assigned to represent defendant on the New Jersey charges, sent defendant the IAD form with instructions to complete it, give the original to Inmate Services, retain a copy, and return a copy to her. Defendant signed Form 1 on January 16, 2007, and the public defender's office received a copy of the signed document on March 15, 2007. On October 24, 2007, Barbier was informed by Lugo that defendant had been transferred to Coxsackie County Correctional Facility in New York. Barbier was told by both facilities that they had no record of the signed IAD and defendant would have to recommence the process for requesting a speedy trial through the IAD. That day she forwarded Form 1 to Anne Green of Inmate Records at the Coxsackie facility.
Defendant sent a letter dated January 7, 2008 to the public defender's office, in which he questioned the lack of progress on his case and why the IAD process had not begun. He stated Barbier had informed his mother he "messed up because [he] never sent the facility [he's] now incarcerated in a copy of the detainer, which [he] did . . . ."
On January 18, 2008, Barbier faxed Assistant Prosecutor Robert Scott a copy of the IAD Form 1. Scott advised he had no record of receipt of the necessary forms and thus defendant's "time period for the right to a speedy trial had not been triggered." By letters of January 22 and 25, 2008, Barbier informed defendant of the status of the matter, suggested he speak with Inmate Services and recommence the process, but informed him she was attempting to "remedy the situation" with the prosecutor's office. She also advised defendant a warrant had been issued that would be executed on him at the conclusion of his sentence in New York.
Defendant was released on parole from the New York facility in March 2008. He filed a motion to dismiss the New Jersey indictment in September 2008. He challenged the constitutionality of the IAD, adopted in New Jersey at N.J.S.A. 2A:159A-1 to -15, and argued he was denied his right to a speedy trial because he substantially complied with the IAD. In the alternative, defendant requested equitable gap time jail credits from October 31, 2003, when he began serving his prison sentence in New York.*fn2 Following oral argument on January 30, 2009, Judge Wendel E. Daniels denied the motion to dismiss the indictment. He noted that if counsel were able to reach an agreement on jail credits, he would be "open to consider the fact that the defendant did make good-faith efforts to try to comply[.]" The denial of the motion was memorialized in an order of February 3, 2009. Defendant returned to the correctional facility in New York in November 2009, and was again released on parole in March 2010.
On March 31, 2010, defendant pled guilty in New Jersey before Judge James Den Uyl to two counts of armed robbery (counts one and three), preserving the IAD, as well as the jail credit request that they were apparently unable to resolve. On August 13, 2010, pursuant to the negotiated plea, Judge Den Uyl dismissed count two and sentenced defendant to two concurrent ten-year sentences (the bottom of the range for a first-degree offense, N.J.S.A. 2C:43-6(a)(1)), subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge gave defendant 318 days of jail credit, but denied his motion for gap time credit while in custody in the New York facility. This appeal ensued.
On appeal, defendant renews the arguments made to the trial court, contending:
I. THE INTERSTATE AGREEMENT ON DETAINERS IS UNCONSTITUTIONAL AS IT DEPRIVES CRIMINAL DEFENDANTS OF THEIR RIGHT TO DUE PROCESS BY IMPOSING AN UNFAIR BURDEN ONTO DEFENDANT AND THOSE SIMILARLY SITUATED.
II. A LIBERAL READING OF THE IAD DEMANDED THAT THE TRIAL COURT DISMISS THE INDICTMENT AS DEFENDANT SUBSTANTIALLY COMPLIED WITH THE IAD'S REQUIREMENTS AND THE STATE FAILED TO BRING HIM TO TRIAL WITHIN 180 DAYS.
III. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT AS DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL.
IV. THE TRIAL COURT ERRED IN NOT APPLYING "GAP" TIME TO DEFENDANT'S JAIL CREDIT CALCULATION.
Based on our review of the record and applicable law, we are not persuaded by any of these arguments.
Defendant argues the IAD deprived him of his due process and speedy trial rights by imposing an unfair burden on him. Specifically, defendant argues the IAD "leaves criminal defendants completely at the mercy of the personnel at their out-of-state institutions to complete and forward the requisite forms to the state that has lodged a detainer against [them]." He urges that an inmate is "powerless" because even if he or she does everything correctly, if the institution where the inmate is incarcerated fails to meet its obligation and "take appropriate steps to ensure that the process is perfected[,]" the inmate "is deprived of his or her right to a speedy trial, deprived of applicable jail credits, and left without any recourse." Defendant further argues that it is the State's responsibility to provide criminal defendants with a speedy trial, and the IAD "place[s] the burden on defendants to bring themselves to trial within a reasonable time, [and] hobbles the ability of these defendants to even do so." We disagree and find the IAD does not violate defendant's due process rights nor does it place an unfair burden on a criminal defendant who is detained in an out-of-state facility to bring himself to trial in a speedy manner.
While an accused has no duty to bring himself or herself to trial, "[t]he failure to assert such a right makes 'it difficult for a defendant to prove that he [or she] was denied a speedy trial.'" State v. Fulford, 349 N.J. Super. 183, 193 (App. Div. 2002) (quoting State v. Szima, 70 N.J. 196, 200, cert. denied, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180 (1976)). When a defendant in one jurisdiction is imprisoned in a correctional facility in a party jurisdiction,*fn3 the IAD sets forth the procedure by which the prisoner, under Article III of the IAD, N.J.S.A. 2A:159A-3, or the prosecutor in the jurisdiction where the charge is pending, under Article IV, N.J.S.A. 2A:159A-4, can initiate proceedings to bring the prisoner to trial.
Article I of the IAD, N.J.S.A. 2A:159A-1, explains:
The party States find that charges outstanding against a prisoner, detainers based on untried indictments, informations or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the policy of the party States and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints.
The party States also find that proceedings with reference to such charges and detainers, when emanating from another jurisdiction, cannot properly be had in the absence of cooperative procedures. It is the further purpose of this agreement to provide such cooperative procedures.
Article III of the IAD, N.J.S.A. 2A:l59A-3, sets forth the statutory parameters for a "speedy trial," providing that upon a prisoner's request, he [or she] shall be brought to trial within 180 days after he [or she] shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his [or her] imprisonment and his [or her] request for a final disposition to be made of the indictment, information or complaint; provided that for good cause shown . . . [the court] may grant any necessary or reasonable continuance.
A prisoner's request for final disposition pursuant to Article III requires four prescribed IAD forms*fn4 to be submitted to the prosecutor and court in the "receiving state," i.e., in this case New Jersey. Failure of the receiving state to abide by the time limit set forth in Article III requires dismissal of the indictment under Article V. N.J.S.A. 2A:159A-5(c).
Strict compliance with the notice provisions of Article III is required to trigger the 180-day period. State v. Pero, 370 N.J. Super. 203, 220 (App. Div. 2004). In Pero, we addressed the due process concerns expressed by defendant in the present case, stating, "[w]e recognize that a prisoner has limited power to insure his warden's efficient and complete cooperation with the requirements of the IAD." Id. at 221. We held, however:
Nonetheless, it does not seem unduly harsh to place both practical and legal burdens on the prisoner who seeks to force another jurisdiction to bring him to trial within 180 days, on threat of dismissal for failure to meet that deadline.
The practical burden on the prisoner is to follow up his attempted delivery of a complete disposition request, that is, Forms 2, 3, and 4, by periodically checking with the warden and the out-of-state prosecutor. The legal burden upon a defendant is to prove actual receipt by the prosecutor and the court in the State where the inmate seeks a prompt disposition. Most jurisdictions that have considered the placement of either of those burdens since Fex [v. Michigan, 507 U.S. 43, 113 S. Ct. 1085, 122 L. Ed. 2d 406 (1993)] have held that it is the defendant's burden to follow up on delivery and to prove receipt of the required forms.
There is no reason to think that by joining the compact, the New Jersey Legislature or any other party state's legislature intended to allow its own prosecution of a defendant to be at risk, solely based upon the efficiency or inefficiency of prison officials in other states. The intent and rationale for enacting the IAD was to counter the perceived evil when prosecutorial delay or inattention fail to provide a defendant incarcerated in another jurisdiction an opportunity for prompt disposition of charges. Such delay potentially prejudices a prisoner's opportunities and even his potential for concurrent sentences.
It does not serve either the legislative intent behind the IAD, or the public interest, for courts to dismiss an indictment where the prosecuting authority is not in violation of the compact. The deterrent effect of the IAD is not impaired by this recognition. The prosecutor remains at risk of dismissal for an unwarranted delay after receiving a valid, complete application for disposition. [Id. at 221-22 (internal citations omitted).]
In Pero, the prosecutor received all of the required IAD forms, but Forms 3 and 4 were not signed by the warden as the IAD mandates. Id. at 209-11. Although the defendant sought to follow up by writing letters and sending packets to the prosecutor, the 180-day period prescribed by the IAD was not triggered until the prosecuting office received all four completed forms. Id. at 210-11. We rejected the defendant's argument that the statutory time period began to run on the date he submitted to out-of-state prison authorities the required written request form to invoke the IAD. Id. at 222-24. We stated that "it would be contrary to the public interest to start the running of the 180-day period prior to the actual receipt of the notice and request by the prosecutor and the court." Id. at 216 (quoting State v. Ternaku, 156 N.J. Super. 30, 34 (App. Div.), certif. denied, 77 N.J. 479 (1978)). Otherwise, "an indictment would be subject to dismissal each time delivery of the documents to the prosecutor and court is delayed, regardless of cause." Pero, supra, 370 N.J. Super. at 216 (quoting Ternaku, supra, 156 N.J. Super. at 34). We explained that "an individual who is incarcerated in another state that is a party to the IAD is adequately protected by the opportunity to check on the status of his own request . . . and thereby to discover any failure to act in a timely fashion." Pero, supra, 370 N.J. Super. at 223.
Here, defendant was not unfairly burdened nor was he denied his due process rights. From the indictment in 2003 until January 2007, when defendant signed Form 1, there is no evidence defendant did anything to assert his right to a speedy trial. Moreover, once defendant signed Form 1, he made no effort to follow up with the correctional facility or with the New Jersey prosecutor. Even if he did, the 180-day period would not be triggered under the IAD until defendant remedied any problems and had delivered to the Ocean County prosecutor all the completed forms.
Defendant further argues he was "absolutely deprived" of his constitutional right to a speedy trial because the seven-year gap between the indictment and the plea were through "no fault" of his own. This argument is also without merit.
A four-part balancing test is used to assess speedy trial claims. The factors include "the length of the delay, the reasons for the delay, defendant's assertion of his right to [a] speedy trial, and any prejudice to defendant caused by the delay." State v. Gallegan, 117 N.J. 345, 355 (1989) (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972)). We are satisfied defendant was not deprived of the right to a speedy trial. Defendant was in an out-of-state prison and failed to properly assert his right to a speedy trial pursuant to the IAD.
There is also ample basis in the record and law to support Judge Daniel's conclusion that defendant failed to strictly comply with the mandatory notice requirements of Section III of the IAD so as to trigger the 180-day time period for bringing a prisoner to trial on out-of-state charges. We affirm on this issue substantially for the reasons he articulated on the record following oral argument. It is undisputed the State never received the requisite Forms 2, 3, and 4. Even if the State had received defendant's signed Form 1 when he submitted it to his public defender in March 2007, he would not have been in compliance with the IAD. We do not apply the doctrine of substantial compliance to the IAD. Pero, supra, 370 N.J. Super. at 220. As Judge Daniels stated:
In addressing the defendant's contention that the prosecutorial party should be held accountable for the mistakes of another agency within the state, this court relies on the decision established by the Pero court. There the court held that the prosecutor is only at risk of a dismissal of an unwarranted delay after receiving a valid and complete application for disposition.
In the case at hand, it appears that the defendant failed to properly submit the required IAD forms to the Ocean County Prosecutor's Office. The IAD does not place any . . . additional obligation on the correctional facility or the prosecutorial party to make sure the defendant is sending the correct paperwork. It is only after the prosecutorial party has received the proper forms that the burden is placed upon them to place the defendant's request. Therefore, in accordance with the holding in Pero, the prosecutorial party cannot be penalized for the mistake or oversight of the defendant or the correctional facility in question.
We turn now to defendant's challenge to Judge Den Uyl's denial of gap time credits. Defendant is not entitled to any gap time credits in New Jersey for the time he spent in prison in New York as a matter of law. N.J.S.A. 2C:44-5(b) provides in pertinent part:
When a defendant who has previously been sentenced to imprisonment is subsequently sentenced to another term for an offense committed prior to the former sentence, other than an offense committed while in custody:
(2) Whether the court determines that the terms shall run concurrently or consecutively, 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[.]
In other words, the defendant is entitled to gap time credits when the defendant has been sentenced previously to a term of imprisonment, is sentenced subsequently to another term, and both offenses occurred prior to the imposition of the first sentence. State v. Carreker, 172 N.J. 100, 105 (2002). As the Court held in Carreker, "by including the term 'aggregate' in the gap-time provision, the Legislature intended that provision to relate solely to in-state sentences." Id. at 111. Accordingly, as defendant's sentence was out-of-state, the court properly denied defendant's request for gap time credit in New Jersey from October 31, 2003, the date he began serving his sentence in New York.