October 15, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NATHANIEL SMITH, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-08-1356.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 3, 2012
Before Judges Nugent and Haas.
This excessive sentence appeal returns to us following a remand by the Supreme Court. In its March 29, 2012 order, the Court directed that we reconsider our prior determination of the jail and gap-time credits due defendant "in light of State v. Hernandez, 208 N.J. 24 (2011)." Based upon our review, we modify our prior decision concerning gap-time credits previously granted to defendant and remand to the trial court to enter an amended judgment of conviction to reflect this modification.
The essential background facts are not in dispute. On August 19, 2005, defendant was arrested for second-degree eluding a law enforcement officer, N.J.S.A. 2C:29-2b.*fn1
On May 22, 2006, defendant allegedly committed the offenses that are the subject of the present appeal. These offenses were conspiracy to commit armed burglary/robbery, N.J.S.A. 2C:5-2; first-degree murder, N.J.S.A. 2C:11-3a(1); first-degree felony murder, N.J.S.A. 2C:11-3a(3); first-degree robbery, N.J.S.A. 2C:15-1; second-degree burglary, N.J.S.A. 2C:18-2; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. He was not arrested for these offenses at that time.
On July 13, 2006, defendant was arrested for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10.
On March 27, 2006, defendant pled guilty to the second-degree eluding charge, N.J.S.A. 2C:29-2b. On August 3, 2006, he pled guilty to the third-degree possession of CDS charge, N.J.S.A. 2C:35-10. He was sentenced to prison on both charges on August 3, 2006. The trial court sentenced defendant to five years in prison on the eluding charge and to a concurrent four-year term on the CDS charge. He was also required to pay mandatory fines and penalties. Defendant received twenty-two days jail credit on each of the charges.*fn2
While in prison, defendant was arrested on April 12, 2007 and charged with the offenses that allegedly occurred on May 22, 2006. After a jury trial, defendant was convicted of conspiracy to commit armed burglary/robbery, N.J.S.A. 2C:5-2; first-degree felony murder, N.J.S.A. 2C:11-3(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. He was acquitted of the other charges.
On March 6, 2009, the court sentenced defendant to an extended term of thirty years in prison with a thirty-year minimum term on the felony murder conviction; a concurrent ten-year term on the conspiracy conviction; and a concurrent twenty-year term with a ten-year minimum on his conviction for possession of a weapon for an unlawful purpose, into which the unlawful possession of a weapon conviction merged. Defendant was ordered to pay the required mandatory fines and penalties. He was granted 946 days jail credit from August 3, 2006 to March 5, 2009.
Defendant appealed his conviction and sentence. In an unpublished opinion, we reversed his conviction and remanded the matter for a new trial. State v. Smith, No. A-3701-08 (App. Div. July 14, 2010).
Rather than proceeding to a second trial, on October 22, 2010, defendant pled guilty to second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2, and unlawful possession of a weapon, N.J.S.A. 2C:39-5b. On February 2, 2011, the trial court sentenced defendant to ten years in prison on the conspiracy conviction, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, and to three years of parole supervision upon release. The court sentenced defendant to a concurrent five-year term, with two-and-one-half years of parole ineligibility on the unlawful possession of a weapon charge. Defendant received 699 days of jail credit from March 6, 2009 to February 1, 2011. He received 946 days gap-time credit from August 3, 2006 to March 5, 2009.
Defendant filed an excessive sentence appeal. In an October 6, 2011 order, we affirmed the sentence, finding that it was "not manifestly excessive or unduly punitive and [did] not constitute an abuse of discretion." However, we remanded the case "to the trial court for entry of an amended judgment of conviction to include gap-time credit from April 12, 2007 to March 5, 2009," rather than from August 3, 2006 to March 5, 2009.
Defendant filed a petition for certification, which the Supreme Court granted in its March 29, 2012 order. As already noted, the Court summarily remanded the matter to us for reconsideration in light of Hernandez, supra.
On remand, defendant presents the following argument:
Defendant's judgment of conviction should be amended to award additional jail credit from the date of arrest or, alternatively, the matter should be remanded to clarify defendant's reasonable expectations under the plea agreement regarding the jail credit due.
Specifically on the issue of jail credit, defendant argues that he should receive additional jail credit, rather than gap-time credit, from April 12, 2007, the date of his arrest on the charges that led to his current conviction, to March 5, 2009, the day before he was sentenced on those charges. Based upon Hernandez, supra, this argument lacks merit.
Rule 3:21-8 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." Such credit for pre-sentence custody is commonly called "jail credits." Richardson v. Nickolopoulos, 110 N.J. 241, 242 (1988). In Hernandez, the Court confirmed that Rule 3:21-8 means "exactly what it states in plain language." Supra, 208 N.J. at 48. The Court held that a defendant is entitled to credit on the term of a custodial sentence for the pre-sentence time period spent in custody. Id. at 37. Thus, had defendant not been arrested, charged and convicted of other offenses in this case, we would agree that he is entitled to jail credits from the date of his arrest on the subject charges, April 12, 2007 to March 5, 2009, the day before his initial sentencing on those charges.
Here, however, defendant had multiple charges and multiple sentencing dates. In Hernandez, the Court provided guidance on how credits should be calculated "with respect to multiple charges." Id. at 50. The Court clarified that "once the first sentence is imposed, a defendant awaiting imposition of another sentence accrues no more jail credit under Rule 3:21-8." Ibid. Rather, the defendant is only entitled to gap-time credit under N.J.S.A. 2C:44-5(b). Id. at 38. This credit is referred to as "gap-time credit" because "it awards a defendant who is given two separate sentences on two different dates credit toward the second sentence for the time spent in custody since he or she began serving the first sentence." Ibid.
In order to grant gap-time credit, rather than jail credit, the following three facts must be found: "'(1) the defendant has been sentenced previously to a term of imprisonment[;] (2) the defendant is sentenced subsequently to another term[;] and (3) both offenses occurred prior to the imposition of the first sentence.'" Ibid. (quoting State v. Franklin, 175 N.J. 456, 462 (2003)). If these three facts are established, "the sentencing court is obligated to award gap-time credits," rather than jail credits. Ibid.
All three of these facts are present in this case. First, defendant was sentenced on August 3, 2006 on the eluding and possession of CDS charges. Second, after being sentenced on these charges, defendant was originally sentenced on March 6, 2009 on the charges that are the subject of the remand. Third, all of the offenses for which defendant was subsequently sentenced occurred before the imposition of the first sentence on August 3, 2006. He was arrested for the eluding charge on August 19, 2005. The charges at issue in this case were committed on May 22, 2006. He was arrested for the possession of CDS charge on July 13, 2006. Therefore, all of these offenses occurred prior to the first sentence on August 3, 2006.
Pursuant to Hernandez, supra, defendant was not entitled to jail credits after August 3, 2006, which was his first sentence date. He was, however, entitled to gap-time credit beginning that day. Contrary to our prior ruling, that the gap-time credit did not begin to accrue until April 12, 2007, the date defendant was arrested on the current charges, defendant was entitled to gap-time credit from the date of his first sentence, August 3, 2006, until March 5, 2009, the day before he was sentenced on the current charges.*fn3
Defendant argues that this matter should be remanded to the trial court to permit him to argue he would not have entered into the October 22, 2010 plea agreement on the current charges if he had known that he was going to receive gap-time, rather than jail, credit after August 3, 2006. This argument lacks merit. An appellate court ordinarily will not consider an issue that was not presented to the trial court. State v. Arthur, 184 N.J. 307, 327 (2005). Defendant did not raise this issue before the trial court and he did not raise it in his excessive sentence appeal that led to the remand. The Supreme Court's remand order is limited to a reconsideration of sentencing credits in view of Hernandez, supra. Therefore, this argument is not properly before us.
Even if it were, however, the argument clearly lacks merit. The plea form that defendant reviewed and signed on October 22, 2010, plainly states that defendant would receive "credit for all time served[,] 946 days time from 3-5-09." The 946 days is the amount of gap-time credit between August 3, 2006 and March 5, 2009. Defendant began to earn jail credits on March 6, 2009, the date he was originally sentenced on the current charges. Thus, defendant obviously knew exactly how much credit he was going to receive at the time of his plea.
Indeed, at the February 2, 2010 sentencing, defendant's attorney noted an error in the trial court's initial calculation of jail credit and the judge agreed that the proper jail credit was 699 days, from March 6, 2009 to February 1, 2011. Defendant also confirmed that that was the correct credit. Later in the sentencing proceeding, defendant acknowledged that he was going to receive 946 days of gap-time credit, which is the amount set forth in the February 2, 2011 judgment of conviction. He raised no objection to either calculation and posed no questions to the court prior to the imposition of sentence. Therefore, defendant's argument that he was not aware of the amount or nature of the credit he was going to receive lacks a factual basis in the record.
Modified; except remanded to the trial court to enter an amended judgment of conviction to reflect the sentencing credits set forth herein. We do not retain jurisdiction.