August 8, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
QUDDOOS FARRA'D, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 95-12-1568.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 15, 2012
Before Judges Payne and Reisner.
Defendant, Quddoos Farra'd, appeals from a trial court's partial denial of his motion for an award of gap time, jail credits, and prior service credits, as set forth in an order dated February 16, 2011. On appeal, defendant presents the following arguments:
Trial court erred in not awarding gap time from September 2, 1997 to May 31, 2000. POINT II
Trial court erred in not awarding prior service credit.
Trial court erred in not awarding 65 days jail credit from Indictment No. 95-6-735I in calculation of time.
In large measure, we affirm. However, we remand the matter to the Parole Board for clarification of one service credit issue.
This matter has a complex history, which we will set forth in detail.
A. Indictments, convictions, appeals, and sentencings. On July 12, 1994, Indictment no. 94-07-0815 (first indictment) was handed down charging defendant with offenses taking place on January 25, 1994 as follows: first-degree armed robbery, N.J.S.A. 2C:15-1 (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count three); fourth-degree possession of hollowed nose bullets, N.J.S.A. 2C:39-3(f) (count four); and second-degree possession of a handgun by a person not to have weapons, N.J.S.A. 2C:39-7(b) (count five).
On March 5, 1995, defendant was released on bail, having been in custody since January 25, 1994 for a total of 405 days.
On April 4, 1995, defendant was arrested for drug possession. On June 8, 1995, he was indicted in Indictment no. 95-6-0735 (second indictment) for third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count one) and third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count two).
Defendant remained in jail as the result of the drug offenses for sixty-five days, from April 5, 1995 to June 8, 1995.
Defendant was arrested again on September 27, 1995, while still on bail from the first and second indictments. On December 22, 1995, he was charged in Indictment no. 95-12-1568 (third indictment) with second-degree attempted aggravated sexual assault, N.J.S.A. 2C:14-2(a)(4) (count one); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (counts two and three); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count four); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count five); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(3) (count six); third-degree attempted criminal coercion, N.J.S.A. 2C:13-5(a)(1) N.J.S.A. 2C:5-1 (count seven); third-degree criminal restraint, N.J.S.A. 2C:13-2 (count eight); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count nine); and fourth-degree possession of a weapon under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5(d) (count ten).
A jury convicted defendant on the first indictment (-0815) on April 30, 1996. On July 11, 1996, the trial judge merged the first two counts and sentenced defendant to twenty years in prison with a ten-year parole disqualifier on count one; concurrent five-year prison terms with two and one-half year parole disqualifiers on counts three and four; and a concurrent ten-year prison term with a five-year parole disqualifier on count five.
Defendant received 405 jail credits for the period from January 25, 1994 (arrest) to March 5, 1995 (release on bail).
A jury trial was held on the third indictment (-1568) on April 16 and 17, 1997. During trial, the judge dismissed count 7 (criminal coercion). On April 22, 1997, the jury acquitted defendant of count 4, second-degree aggravated assault, but convicted him of a lesser-included disorderly persons charge of simple assault. It convicted defendant on all other charges.
On September 23, 1997, the trial judge sentenced defendant on the third indictment (-1568) to an extended aggregate sentence of twenty years with a ten-year parole disqualifier on count one and to a consecutive five-year term with a two and one-half year parole disqualifier on count five. All remaining charges were either merged or given concurrent sentences. The judge ordered that this sentence run consecutively to defendant's sentence on the first indictment (-0815).
On the same day, September 23, 1997, defendant, who had pled guilty to count two of the second indictment (-0735) was given a concurrent sentence on that charge of five years in custody. He was awarded sixty-five days of jail credit on that term for the period from April 5, 1995 to June 8, 1995.
On March 5, 1999, we issued our opinion on defendant's appeal from convictions pursuant to the first indictment (-0815). We reversed defendant's convictions on counts one and two (armed robbery and possession of a weapon for an unlawful purpose), determining that the crime of attempted robbery was not recognized and that defendant should be retried on a charge of attempted theft. Additionally, we vacated the sentence imposed on count four (possession of hollowed nose bullets), and remanded the matter for resentencing on that count. We affirmed defendant's convictions and sentences on counts three and five. State v. Farrad, No. A-201-96 (App. Div. March 5, 1999). Certification was granted, and on May 1, 2000, the Court reversed our decision on counts one and two, determining that defendant could be retried on a charge of attempted robbery. State v. Farrad, 164 N.J. 247, 258-67 (2000) (Farrad I). The convictions and sentences on counts three and five were affirmed. Id. at 269-70.
On April 15, 2002, defendant pled guilty to the first count of the first indictment (-0815) as amended to attempted robbery. He was sentenced to ten years in prison on that count and to a concurrent eighteen-month term on count four. However, on resentencing, defendant received 2,105 jail credits for the period from July 11, 1996 (the original sentencing date) to April 15, 2002 (the resentencing date), in addition to the original jail 405 credits awarded for his pre-conviction custody, for a total of 2,510 days, or just under seven years. As a consequence, defendant's sentences on counts one and four were deemed to have expired on the resentencing date. The sentences imposed in 1996 on counts three and five had by then also expired. When that expiration took place will be discussed in Part III of this opinion.
Under circumstances that are unclear to us, on July 15, 2004, an amended judgment of conviction on the third indictment (-1568) was issued that amended gap-time credits. That amended judgment stated that defendant received 288 days of jail credit for the period from September 27, 1995 (date of arrest on the third indictment) through July 11, 1996 (the date of sentencing on first indictment). He also received 439 days of gap-time credit for the period from July 11, 1996 (the date of sentencing on first indictment) to September 23, 1997 (the date of sentencing on second and third indictments).
On January 22, 2005, in response to defendant's appeal from a denial of post-conviction relief (PCR) on the third indictment (-1568), we reversed in part the trial court's decision, determining that defense counsel had been ineffective in failing to challenge defendant's consecutive sentences for aggravated assault and attempted sexual assault, and we remanded for resentencing. State v. Farrad, No. A-4444-03 (App. Div. January 22, 2005) (slip op. at 8) (hereinafter Farrad II).
On remand, on September 27, 2005, the trial judge reimposed the same sentence. However, in an amended judgment of conviction dated September 12, 2007, the judge granted defendant, in addition to 288 days of jail credits and 439 days of gap-time credits, 2,928 days of service credit for the period spent in custody from September 23, 1997 (the date of initial sentencing on the third indictment) to September 27, 2005 (the date of the second sentence).
These credits were clearly erroneously calculated, as defense counsel conceded before the trial court in this most-recent application. From September 23, 1997 until the first indictment's parole eligibility date, defendant was still serving his sentence of ten years in custody with five years of parole ineligibility on counts three and five of that first indictment (-0815). Since his sentences under the third indictment (-1568) were to run consecutively to the first indictment (-0815), he was not entitled to any credit on the third indictment (-1568) for time served before the first sentence expired, which was then said to be June 5, 2001.
This error was the subject of the hearings, which we describe in the next section, the outcome of which is now on appeal.
B. The jail credit issues on appeal.
On September 8, 2008, the Bergen County Prosecutor's Office moved to strike the 2,928 days of service credit from the judgment of conviction on the third indictment (-1568). The motion judge entered an order granting the motion on the papers on September 16, 2008, but on October 14, he vacated the order, because defendant had not been given notice of the State's motion.
The State and defense counsel argued the September 8 motion on November 14, 2008. The judge found on the record that defendant was entitled to 983 days of gap-time credit for the period from September 23, 1997 (the date of his initial sentence on the second and third indictments) to May 31, 2000 (an alternative date given by the Parole Board for the expiration of defendant's sentence on the first indictment, the other date being June 5, 2001). However, the judge did not enter an order to that effect.
At the hearing, defendant moved for sixty-five additional days of jail credit for the period from April 4, 1995 (his arrest on the second indictment) through June 8, 1995 (his release from jail), but the judge declined to consider the motion as defendant had not made a formal application.
On August 16, 2010, defendant moved pro se for the 983 days of gap time credit and the sixty-five days of jail credit. On January 12, 2011, the State submitted a letter to the court with a January 10, 2011 Parole Board research memorandum concerning defendant's credits.*fn1 On January 21, 2011, following oral argument, the judge denied defendant's motion. In a February 16, 2011 order, the judge granted defendant 1574 days of prior service credit for the period from June 6, 2001 (the date accepted as the expiration of sentences under the first indictment) to September 26, 2005 (the date of resentencing on the third indictment).
On March 2, 2011, the judge entered an amended judgment of conviction on the third indictment (-1568), granting defendant 1574 days of service credit, 439 days of gap-time credit, and 288 days of jail credit.
On April 13, 2011, defendant filed pro se the notice of appeal from the judge's order.
The award of gap-time and jail credits raises issues of law that we review de novo. See State v. L.H., 206 N.J. 528, 543 (2011) (applying de novo standard in gap-time credit case); State v. Hernandez, 208 N.J. 24, 48-49 (2011) ("[T]here is no room for discretion in either granting or denying [jail] credits.").
In his brief, defendant first argues that the trial court erred in not awarding either jail or gap-time credit from September 22, 1997 to May 31, 2000, the earlier of the two dates given by the Parole Board for the expiration of defendant's sentence on the first indictment. We defer to Part III of this opinion the issues of when defendant's sentence on the first indictment expired, and whether defendant received the proper credits in that regard, and confine our discussion here to the legal issue of whether defendant was entitled to jail or gap-time credit for any period after September 22, 1997. We reject defendant's position.
Jail credits are mandated by Rule 3:21-8, which provides that a "defendant shall receive credit on the term of a custodial sentence for any time served in custody in jail or in a state hospital between arrest and the imposition of a sentence." The rule "only applies to confinement directly attributable to the particular offense giving rise to the initial incarceration." In re Hinsinger, 180 N.J. Super. 491, 499 (App. Div. 1981).*fn2 Thus, defendant would only be entitled to jail credit for the disputed period if his confinement during that period was attributable solely to the third indictment (-1568).
Here, it is clear that defendant was still serving his time on counts three and five of the first indictment (-0815) during the disputed period. Although his convictions on counts one and two were reversed and resentencing was ordered on count four, the convictions and sentences on counts three and five were left, undisturbed. See Farrad I, supra, 164 N.J. at 269-70. Defendant didn't start serving his time on the third indictment (-1568) until the expiration of his custodial terms under the first indictment (-0815). Since his confinement during the disputed period was not "directly attributable to the particular offense underlying" the third indictment (-1568), defendant is not entitled to jail credits for that period. Hinsinger, supra, 180 N.J. Super. at 499.
Defendant cites State v. De Rosa, 332 N.J. Super. 426, 428-29 (App. Div. 2000), to support his argument, but De Rosa is not relevant here. De Rosa was arrested for murder in 1980. He was convicted of the murder in 1981 and sentenced to forty years in custody. While serving that sentence, he pled guilty to a burglary charge, for which he received a ten-year concurrent sentence. In 1983, his conviction on the murder charge was reversed by us, and the State's petition for certification was denied in 1984.
In 1986, De Rosa was paroled on the burglary charge, but remained in prison awaiting retrial on the murder charge. On that charge, he was retried, convicted, and resentenced in 1987. Id. at 428-29. De Rosa sought credit for the period he spent in jail between the denial of certification and his parole on the burglary charge.
The State argued that since his conviction had been reversed by this court and the Supreme Court had declined to grant certification, during the period in dispute De Rosa was incarcerated solely on the burglary charge, and was thus not entitled to any credit on the murder sentence. Id. at 431-32. We held that De Rosa was entitled to the credit, reasoning that his "status as being charged but not yet convicted of murder between the denial of the State's petition for certification and his parole on the burglary charges, was a product of his successful exercise of his constitutional right to appeal." Id. at 432. Since he would not have lost service credit for this period if he had not appealed, or had appealed and lost, his successful appeal would actually have the effect of prolonging his sentence. Ibid. Denying him the credit would "in a very real sense [punish him] for successfully challenging his conviction," chilling the right to appeal. Id. at 433.
De Rosa has no bearing on this case. Defendant's appeal on the first indictment (-0815) left his sentences on the third and fifth counts intact. Those sentences were still in effect when the Supreme Court remanded the matter for a retrial of the first and fourth counts. Once the sentences on the third and fifth counts expired, defendant started serving his sentences on the second (-0735) and third indictments (-1568). Since at all times during the appellate process in Farrad I, from appeal to certification to remand, defendant was still serving his first terms in prison, there is no basis for an award of jail credit on defendant's subsequent terms. Nor is there any question of a penalty or a constitutional chilling effect; to the contrary, defendant successfully reduced his sentence on the first indictment by ten years on appeal.
Defendant argues in the alternative that he is entitled to gap-time credit for the disputed period. Gap-time credits are governed by the provisions of N.J.S.A. 2C:44-5(b):
Sentences of imprisonment imposed at different times. 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[.]
The term "gap time" is used "because the credit applies to the gap between the two sentences." State v. McIntosh, 346 N.J. Super. 1, 4 (App. Div. 2001), rev'd on other grounds, State v. Carreker, 172 N.J. 100, 116 (2002).
The gap time statute operates "to require a credit to defendant for time served on the prior sentence solely for the purpose of 'determining the permissible aggregate length of the term or terms remaining to be served[.]' " State v. Richardson, 208 N.J. Super. 399, 414 (App. Div.) (quoting N.J.S.A. 2C:44-5 b(2)), certif. denied, 105 N.J. 552 (1986). Gap time comes off of the "back end" of a sentence, not the "front end"; when consecutive sentences are aggregated, "the aggregate length of the sentences is reduced by the gap time." Meyer v. N.J. State Parole Bd., 345 N.J. Super. 424, 428 (App. Div. 2001), certif. denied, 171 N.J. 339 (2002). Gap-time credits do not affect the parole bar imposed with a jail sentence, although they may affect the actual date of parole eligibility. Booker v. N.J. State Parole Bd., 136 N.J. 257, 263 (1994).
The gap time statute "is triggered when a three-pronged threshold test is met":
(1) a defendant has already been sentenced to a term of imprisonment, (2) defendant is subsequently sentenced to another term of imprisonment, and (3) the subsequent sentence is for an offense that occurred prior to the imposition of the first sentence. [Richardson, supra, 208 N.J. Super. at 414.
Defendant's sentence under the second (-0735) and third indictments (-1568) undoubtedly meet this test. He was sentenced on the first indictment (-0815) on July 11, 1996, and on the second and third indictments on September 23, 1997, satisfying the first two prongs. He was arrested for crimes underlying the second and third indictments on April 4, 1995 and September 27, 1995, respectively, well before his sentencing on the first indictment. Thus, the third prong is satisfied as well.
However, defendant already received gap-time credit for the 439 days between his sentencings on the first indictment (-0815) and on the second and third indictments. As the State points out, there is simply no "gap" to fill between September 23, 1997 and May 31, 2000. In September 1997, defendant was still serving his sentences on counts three and five of the first indictment (-0815). At the expiration of those sentences, he started serving his consecutive terms under the second and third indictments. Defendant has no claim to gap time for the disputed period.
On the question of gap time, Defendant cites State v. Franklin, 175 N.J. 456, 459 (2003). The questions in that case were "whether juveniles are entitled to the same rights as adults with respect to 'gap-time' credit and, if so, whether gap-time applies to a period of imprisonment served after a parole revocation." Beyond a cogent summary of the gap time statute, that case has nothing to do with this one.
Defendant also generally cites Booker, supra. But the only questions in that case were "[whether] gap-time credits, as a limit on the total possible sentence, correspondingly reduce the authority of a court to impose a judicial parole bar[, and whether] gap-time credits proportionately advance a defendant's primary parole-eligibility date when neither a judicial nor a statutory parole bar has been imposed[.]" 136 N.J. at 261. Defendant does not challenge the parole eligibility date calculated by the Parole Board on the basis of his existing gap-time credits, but rather seeks additional credits. Thus, Booker does not support his position.
Defendant argues that he is entitled to prior service credit on the third indictment (-1568) for the period between June 1, 2000 and June 5, 2001. He asserts that the Parole Board erroneously considered June 6, 2001 to be the date on which his sentences on the first indictment expired, and that May 31, 2000 is the true date. Our review of the Parole Board's April 27, 2011 parole eligibility calculation, appended to defendant's reply brief, suggests that defendant has already received credit for this period. However, the record contains conflicting information.
A Parole Board memorandum written on October 21, 2008 indicates that defendant's sentences on the first indictment expired on May 31, 2000. In the January 10, 2011 memorandum, referred to earlier, the Parole Board indicated that the sentences on the first indictment did not expire until June 6, 2001, for reasons that are not given. The State relies on the January 10, 2011 memorandum, and maintains that the sentences did not expire until June 2001. But the April 27, 2011 parole eligibility calculation once again gives the earlier May 2000 date. Significantly, that calculation includes 370 days of credit for time served between June 1, 2000 and June 6, 2001, and it gives February 15, 2012 as defendant's parole eligibility date - the same date indicated in an Offender Details page provided in the State's appendix. Indeed, defendant has been paroled, thereby largely mooting this appeal. While we regard the issue as having been correctly resolved by the Parole Board in its April 2011 memorandum, because defendant has not reached his maximum release date of May 5, 2013, and because that date may be affected by the Parole Board's decision, we remand this matter to the Parole Board for any necessary clarification of this issue.
Defendant also argues that he is entitled to sixty-five days of jail credit on the third indictment (-1568) for the period between April 4, 1995 (arrest on second indictment) and June 8, 1995 (release from jail on second indictment). He has already been granted jail credit for that period on the second indictment.
As the State points out, however, defendant had yet to commit the offenses underlying the third indictment during that sixty-five-day period. There is no reason to apply these credits to the third indictment.
The order of February 16, 2011 is affirmed in part; the matter is remanded to the Parole Board for clarification of its treatment of the period from June 1, 2000 to June 5, 2001.