NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...