May 21, 2013
STATE OF NEW JERSEY, Plaintiff-Appellant,
KYLE ZIMMERMAN, Defendant-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 31, 2012
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 05-10-1390 and 05-10-1534.
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for appellant (Erin M. Campbell, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
Joseph E. Krakora, Public Defender, attorney for respondent (Alison Perrone, Designated Counsel, on the brief).
Before Judges Ashrafi and Hayden.
This is an appeal by the State of New Jersey from the March 15, 2011 Law Division amended judgment of conviction (JOC) of defendant Kyle Zimmerman. The State contends that the grant of discretionary jail credits for the fifteen-month period between defendant's first scheduled sentencing date and the actual sentencing date was illegal. We affirm.
The facts leading to this appeal are not in dispute. Defendant and an associate engaged in a series of armed robberies in April and May 2005. On May 14, 2005, defendant was arrested in Essex County on three robbery charges and did not post bail. On June 8, 2005, he was charged in Hudson County with two additional armed robberies. Defendant's family posted bail in August 2005 on the Hudson County charges. Because bail was never posted on the Essex County charges, he remained incarcerated solely on the Essex County charges. In September 2005, grand juries in Essex and Hudson Counties returned separate indictments on the robberies and related charges that occurred in each county.
In 2006, defendant and the State reached plea agreements in both counties. On June 8, 2006, defendant pled guilty to the pending robbery charges in Essex County. The State agreed to recommend a sentence of five years for each robbery with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to run concurrent with each other and with the Hudson County sentences. The next day, defendant pled guilty in Hudson County to the two armed robberies. The State agreed to recommend two eight year sentences with an eighty-five percent NERA parole ineligibility period to run concurrent with each other and with the Essex County sentence. Defendant agreed to testify against his co-defendant charged with the five robberies.
Over the next year, defendant's Hudson County sentencings were repeatedly postponed, due chiefly to the failure of the co-defendant's trial to take place. Then, on August 13, 2007, defendant was sentenced in Essex County, pursuant to his plea, to a five year aggregate term with NERA parole ineligibility. Defendant received jail credit on the Essex County sentence from his May 14, 2005 arrest through the day of his sentencing.
On November 15, 2007, defendant was sentenced in Hudson County in accordance with the plea agreement, and that sentence was to run concurrent with the Essex County sentence. In addition, the JOC incorrectly listed the dates for which the credits were awarded as May 2, 2005 to June 8, 2005. As a result, on March 25, 2008, the Department of Corrections sent a letter to the sentencing judge questioning the award of jail credits and noting that the time period between May 2 and June 8, 2005 was merely thirty-eight days. On September 5, 2008, the judge, without notice to defendant, signed an amended JOC, eliminating the jail credits and awarding ninety-five days gap time for the period between the Essex sentencing and the Hudson sentencing.
Defendant filed a petition for post-conviction relief (PCR) on May 3, 2011 concerning his jail credits. Defendant argued that under State v. Hernandez, 208 N.J. 24 (2011), he was entitled to 795 days of jail credits from June 8, 2005, the date of his arrest on the Hudson charges, to August 12, 2007, the date that he was sentenced on the Essex charges. He argued that, at a minimum, he should receive 434 days of jail credits from September 8, 2006, the first scheduled Hudson sentencing date, to November 14, 2007, the day before he was sentenced in Hudson. He maintained that he deserved these days as a matter of fairness because he was not responsible for the extended delay.
The PCR judge rejected defendant's first argument as Hernandez did not apply to defendant's collateral appeal. However, he noted that the prolonged delay in sentencing had created a basic unfairness. He further observed:
Now, the defendant agreed to a maximum of eight years with 85% on both Hudson indictments. That was his reasonable expectation. Certainly his reasonable expectation was that he could not have been sentenced to more than eight years with 85%.
But because his sentence was adjourned for fourteen months . . . [h]e got sentenced to nine years and two months with 85%.
Later, the judge continued:
[Defendant] should have been sentenced on September 8th, '06, which means he would have been getting service credits from September 8th forward. Instead, because he – his sentencing was put off for a combination of his willingness to testify if the co-defendant went to trial, as well as because judges and lawyers weren't available. And he got nothing, he got nothing for those delays. He got no jail credits . . . all that delay was just at his expense. He didn't even get mitigating factor 12 when he was sentenced.
The judge recognized that under a strict reading of Rule 3:21-8 and cases interpreting it, defendant was not eligible for jail credits because he had been incarcerated in Essex on the Essex charge and had received jail credits on the five year aggregate sentence. In the judge's view, the arbitrariness of the fifteen-month delay in sentencing was compounded by the fact that the original sentencing judge did not take into account defendant's cooperation with law enforcement, mitigating factor twelve, N.J.S.A. 2C:44-1(b)(12) when determining his sentence. Considering the facts to present "a very unique situation, " he concluded that, as a matter of equity, defendant should be granted 433 days of jail time for the period of delay between his first scheduled sentencing date and the date he was actually sentenced. This appeal followed.
As a preliminary matter, defendant argues that the State does not have the right to appeal the award of jail credits because the credits at issue here were an exercise of the court's discretion. We disagree.
It is well established that the State may appeal an illegal sentence. State v. Mercadante, 299 N.J.Super. 522, 528-29 (App. Div.), certif. denied, 150 N.J. 26 (1997); State v. Tavares, 286 N.J.Super. 610, 617 (App. Div.), certif. denied, 144 N.J. 376 (1996). However, the Double Jeopardy Clause may "prohibit the increase of the term imposed in a discretionary sentence." State v. Kirk, 243 N.J.Super. 636, 642 (App. Div. 1990) (emphasis omitted). "[S]o long as the issue of defendant's sentence is properly before the court, the court may correct an illegal sentence." Id. at 643. Thus, the State may appeal where, as in this case, it asserts that the trial court awarded jail credits to which defendant was not legally entitled, resulting in an illegal sentence.
We turn to the merits of the State's appeal. The State contends that the PCR judge erred by awarding defendant jail credits on his Hudson sentence, as he had been awarded the appropriate credit for his pre-sentence incarceration, which had been applied to his Essex sentence. In the State's view, an award taking time off his Hudson sentence is impermissible double counting, which amounts to a "windfall" to defendant. Again, we disagree.
Rule 3:21-8 provides: "The 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 sentence." At the time of defendant's original sentencing, it had long been established that credit was given only for the period of incarceration for the crime for which the sentence was imposed. In re Hinsinger, 180 N.J.Super. 491, 499 (App. Div.), certif. denied, 88 N.J. 494 (1981). Recently, our Supreme Court interpreted Rule 3:21-8 to permit jail credits to be awarded on multiple sentences if the charges were pending during a defendant's pre-sentence incarceration. Henandez, supra, 208 N.J. at 47-49. However, the Hernandez Court provided for prospective application with only limited pipeline retroactivity not applicable here. Id. at 50-51.
The jail credit is given for each day served between the arrest and imposition of sentence. State v. Garland, 226 N.J.Super. 356, 361 (App. Div.) (quoting R. 3:21-8), certif. denied, 114 N.J. 288 (1988). When the rule applies, the credit is mandatory. State v. Grate, 311 N.J.Super. 544, 548 n.3 (Law Div. 1997) (citations omitted), aff'd, 311 N.J.Super. 456, 459 (App. Div. 1998). Where the rule does not apply, the credit may nevertheless be awarded based upon considerations of fairness, justice and fair dealings. Id. at 548-49. "[Rule] 3:21-8 expresses the public policy of the State and should be liberally construed." State v. Black, 153 N.J. 438, 457 (1998) (quoting State v. Beatty, 128 N.J.Super. 488, 491 (App. Div. 1974)).
Here, as a matter of basic fairness and to meet defendant's reasonable expectations when he entered into the plea bargain, the PCR judge awarded the jail credits during the time defendant, if the original sentencing had occurred, would have been serving his sentence. The judge correctly determined that defendant was not entitled to credits under Rule 3:21-8 as previously interpreted. We are convinced, however, that the judge had the discretion to award jail credits in the interest of fairness and that the award of credits to defendant was not a mistaken exercise in discretion.
Our decision in Grate, supra, 311 N.J.Super. at 457, supports this conclusion. The trial court noted that the defendant's incarceration was not solely attributable to the subject charge. Id. at 458. The court still determined to award the defendant jail credits although he was not so entitled under the rule. Ibid. We affirmed the trial court's determination observing that "even if not directly a consequence of the arrest in this case [the defendant's incarceration] was nevertheless fairly attributable to the indictment on which he was eventually sentenced" Id. at 459 See also State v Hemphill 391 N.J. Super 67 70 (App Div) (approving the award of credits "on considerations of fairness justice and fair dealings") certif denied 192 N.J. 68 (2007)
We agree that the facts of this case present a unique set of circumstances that permit the award of equitable jail credits The award of equitable jail credits does not as the State argues amount to a windfall to defendant Rather it merely accounts for the fifteen months during which he would have been serving his Hudson County sentence but for the protracted delay caused by defendant's willingness to cooperate with the State We conclude under the circumstances that the judge did not abuse his discretion in awarding defendant equitable jail credits during this period