July 3, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHAWN RANDOLPH, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 05-09-00777.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 19, 2012
Before Judges Axelrad and Parrillo.
Defendant Shawn Randolph appeals from a November 1, 2011 order of the Law Division denying his application for 567 days of gap-time and jail time credits. Save for a limited remand to allow for an additional forty-four days of jail credit, we affirm.
By way of background, on September 21, 2005, the Gloucester County Grand Jury indicted defendant for first-degree armed robbery, N.J.S.A. 2C:15-1a(2); second-degree eluding, N.J.S.A. 2C:29-2b; and third-degree terroristic threats, N.J.S.A. 2C:12-3a, crimes committed on June 27, 2005. Defendant surrendered himself to police on July 12, 2005, on outstanding warrants for these crimes that had been issued on June 30, 2005 and July 2, 2005. He was lodged in the Gloucester County jail until his release on bail on August 24, 2005.
Three months later, on November 28, 2005, and while out on bail, defendant was arrested in Pennsylvania and subsequently indicted on two counts of robbery in that State.*fn1 These offenses occurred after the Gloucester County crimes. Following his conviction, on March 29, 2006, defendant was sentenced to a custodial term for the two Pennsylvania robberies.
New Jersey obtained custody of defendant on September 6, 2006, pursuant to the Interstate Act on Detainers, N.J.S.A. 2A:159A-1 to -15. Thereafter, on September 10, 2006, defendant signed an Interstate Agreement on Detainers (IAD), requesting a speedy trial on the Gloucester County indictment. However, due to continuances granted at defendant's requests, the January 29, 2007 entry of co-counsel's appearance, and the court's own scheduling needs, on February 2, 2007, the judge entered an order on "good cause" tolling the 180-day IAD's time limitation for bringing a defendant to trial in the receiving State, pursuant to N.J.S.A. 2A:159A-3(a), for ninety days.
This order allowed defendant to enter into a favorable plea agreement
with the State, beyond the plea cut-off date, reducing the armed
robbery charge to a second-degree offense. Accordingly, on April 5,
2007, defendant pled guilty to second-degree robbery and eluding in
exchange for the dismissal of the terroristic threat charge and the
State's recommendation of an aggregate eight-year term subject to an
eighty-five percent period of parole ineligibility, to run concurrent
with the Pennsylvania sentence defendant was then serving.*fn2
On April 16,
2007, defendant was sentenced in accordance with the plea agreement
and given jail credit of ten days.
No appeal was ever taken from defendant's judgment of conviction. Instead, defendant apparently filed a petition seeking credit for time spent while serving his Pennsylvania sentence, which the Law Division denied on September 22, 2010, and from which no appeal was taken.
Subsequently, on August 17, 2011, defendant filed another pro se motion for additional credits pursuant to Rule 3:21-8 and N.J.S.A. 2C:44-5(b). Therein, he sought gap-time credits for time spent incarcerated before his sentencing on the New Jersey charges, namely from March 29, 2006 to April 16, 2007, since he was sentenced in Pennsylvania for an offense that occurred after the New Jersey offense, for which he was later sentenced. In other words, defendant sought credit for the gap period between the two sentences.*fn3
Judge Marshall denied defendant's motion finding no basis to award gap-time credit because defendant was continuing to serve his Pennsylvania sentence. The judge reasoned:
N.J.S.A. 2C:44-5b[(2)] states, generally, that when a defendant, who has been sentenced previously to a term of imprisonment, is sentenced again for a different offense committed prior to the imposition of the earlier sentence, shall be credited at the time of the second sentence for so much of the term of imprisonment as has been served on the prior sentence. In other words, credit should be given for the gap between the two sentences. See Richardson v. Nickolopoulos, 110 N.J. 241 (1988). In State v. Carreker, 172 N.J. 100, 111 (2002), the New Jersey Supreme Court held that a defendant who committed a New Jersey offense prior to being sentenced for a New York offense, and was extradited to New Jersey from a New York correctional facility based on an arrest warrant for a New Jersey offense, was not entitled under the "gap-time credit" provision to receive credit at the time of sentencing for the New Jersey offense for any portion of the time served on the New York sentence, whether it was served in New York or in New Jersey. The Carreker court held that the gap-time provision applies to no portion of the time served by a defendant on an out-of-state sentence. Id. Specifically, the court noted that "by including the term 'aggregate' in the gap-time provision["] of N.J.S.A. 2C:44-5b(2), ["]the legislature intended that provision to relate solely to in-state sentences." Id. at 115. New Jersey has no authority to aggregate other state's sentences. Further, the purpose of the gap-time provision is to guard against the manipulation of sentences by prosecutors who might delay a criminal indictment even when an inmate is available for disposition on a New Jersey offense. There is no evidence of that here and, further, any such claim is vitiated by the defendant's leaving the jurisdiction of New Jersey. Id. at 114 (noting that "defendants who are serving out-of-state sentences are given adequate protections against prosecutorial delay under the relevant provisions of the IAD").
Further, State v. Hernandez, 208 N.J. 24 (2011) does not relate to nor overrule Carrecker, supra.
On appeal, defendant argues that jail credits are mandated by the Hernandez decision. He also argues for the first time that the failure to bring him to trial within 180 days of signing the IAD was a violation of due process. We disagree.
The latter issue is not cognizable on appeal since never raised below. State v. Arthur, 184 N.J. 307, 328 (2005); Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973). In any event, it lacks merit.
A trial court may toll the IAD time limitation if the defendant is unable to stand trial. N.J.S.A. 2A:159A-6(a). Furthermore, for good cause shown, a trial court may grant a continuance of the time limitation. State v. Miller, 299 N.J. Super. 387, 397 (App. Div.), certif. denied, 151 N.J. 464 (1997); see also N.J.S.A. 2A:159A-3(a). Factors for good cause include "the length of the delay, the reasons for the delay, defendant's assertion of his right to speedy trial, and any prejudice to defendant caused by the delay." State v. Gallegan, 117 N.J. 345, 355 (1989); See also Miller, supra, 299 N.J.
Super. at 397. A defendant may not raise the IAD time limitation as an issue if the defendant causes the delay. See Miller, supra, 299 N.J. Super. at 397-99 (holding that the defendant caused the delay because the defendant discharged prior counsel).
Here, the ninety-day delay was, as noted, occasioned primarily by the belated entry of defendant's new co-counsel, who was, by virtue of the tolling, afforded ample opportunity to prepare for trial. Moreover, the tolling also allowed defense counsel to strike a favorable plea bargain and therefore inured strictly to defendant's benefit. Lastly, Judge Marshall's February 2, 2006 order tolling the 180-day IAD time limitation was never appealed.
Equally without merit is defendant's claim for gap-time credits. Unlike jail credits, which are awarded for jail time directly attributable to the particular offense for which the court sentences a defendant, State v. Black, 153 N.J. 438, 456 (1998); In re Hinsinger, 180 N.J. Super. 491, 499 (App. Div. 1981),*fn4 gap-time credits are awarded if "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." N.J.S.A. 2C:44-5b. Gap-time credits are measured by the defendant's jail time for the first sentence before a court imposes a second sentence. N.J.S.A. 2C:44b(2). If a defendant commits two offenses, and courts subsequently sentence the defendant at different times for each offense, gap-time credits alter the latter sentence as though a court issued each sentence simultaneously. See Carreker, supra, 172 N.J. at 105; Richardson, supra, 110 N.J. at 249 n.2.
Gap-time credits, however, are permissible only for sentences in the same state. See Carreker, supra, 172 N.J. at 104, 111 (holding that a defendant cannot receive gap-time credit in New Jersey between the dates that a New York court and a New Jersey court sentenced a defendant for different offenses). Gap-time credits do not apply to sentences in different states because the IAD time limitation protects such defendants from unfair sentencing. See id. at 107, 114.
We further agree with Judge Marshall that the Hernandez decision does not apply in this instance. Hernandez involved the disposition of charges in multiple counties in New Jersey and also multiple charges in the same county. 208 N.J. at 28-31. Hernandez neither disapproved nor overruled Carreker. On the contrary, Hernandez expressly recognized that under the circumstances extant in Carreker, "New Jersey jail credit does not apply." Id. at 44.
Although defendant is not entitled to jail credit for time he spent incarcerated on his Pennsylvania crimes, and awaiting sentencing thereon, the State readily concedes that he is entitled to jail credit for the forty-four days of confinement in the Gloucester County jail from date of his surrender - July 12, 2005 - to date he was released on bail - August 24, 2005. We agree. Thus, with the exception of this additional forty-four days of jail credit, we affirm the denial of defendant's motion for gap-time credit substantially for the reasons stated by Judge Marshall in his written opinion of November 1, 2011.
Remanded to reflect additional administrative credit adjustment to defendant's sentence of forty-four days. Affirmed in all other respects.