Submitted May 22, 2013
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 08-06-1065, 02-09-1179, 08-03-0493, 08-06-1064.
Joseph E. Krakora, Public Defender, attorney for appellant/cross-respondent (Rochelle Watson, Assistant Deputy Public Defender, of counsel and on the brief).
Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent/cross-appellant (Joie Piderit, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Grall, Simonelli and Accurso.
The primary issues presented on this appeal and cross-appeal involve the award of jail credits on four indictments that were pending for several years. We hold: that the State may appeal an award of jail credits on the ground that they are not authorized by Rule 3:21-8; that a defendant subject to multiple charges who has been sentenced on only one indictment is entitled to jail credits for a period of confinement that follows reversal of the convictions underlying the first sentence and precedes the first sentencing following the reversal; and that jail credits for such confinement are due on all indictments pending at the time.
Following reversal of defendant James Rippy's convictions on an indictment charging him with first-degree robbery and related offenses, he accepted a plea agreement resolving four indictments charging him with crimes committed in 2002 and 2003. Pursuant to that agreement, in February 2011 defendant pled guilty to two counts of first-degree robbery, N.J.S.A. 2C:15-1, one charged in Indictment 02-09-1179 and another charged in Indictment 08-06-1065 (superseding Indictment 03-03-0426); second-degree burglary, N.J.S.A. 2C:18-2, charged in Indictment 08-06-1064 (superseding Indictment 02-10-1342); and bail jumping, N.J.S.A. 2C:29-7, charged in Indictment 08-03-0493. All of these indictments were returned by the grand jurors for Middlesex County.
On May 20, 2011, the judge sentenced defendant to terms of imprisonment on each count all to be served concurrently with one another. The judge imposed twenty-year terms for each of the two first-degree robberies that are subject to periods of parole ineligibility and supervision mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; a ten-year term for second-degree burglary; and a four-year term for bail jumping.
At sentencing, the State and defendant had divergent views on the amount of jail credits the judge could award. This sentencing preceded the Supreme Court's decision in State v. Hernandez, 208 N.J. 24 (2011), by nineteen days, but in this case Hernandez applies because defendant and the State disputed the amount of jail credits at sentencing. Id. at 50-51. Accepting defense counsel's argument that the award of jail credits is discretionary, the judge did not address either Rule 3:21-8, which governs jail credits, or N.J.S.A. 2C:44-5b, which governs gap-time credits. In several respects, the jail credits awarded deviate from those mandated by Rule 3:21-8, as interpreted in Hernandez. Some of the deviations are in defendant's favor and some are to his disadvantage.
On appeal, defendant argues that his twenty-year sentences for first-degree robbery are excessive and opposes the State's cross-appeal of the jail credits awarded. Specifically, he contends:
I. BECAUSE THE AWARD OF DISCRETIONARY JAIL CREDITS DOES NOT RENDER [THE] SENTENCE ILLEGAL, THE STATE'S APPEAL MUST BE DISMISSED. ALTERNATIVELY, ASSUMING THE STATE HAS STANDING TO APPEAL, THE AWARD OF DISCRETIONARY CREDITS WAS ENTIRELY WITHIN THE SENTENCING JUDGE'S AUTHORITY AND [WAS] WARRANTED UNDER THE UNIQUE CIRCUMSTANCES OF THIS CASE.
II. [THE] TWENTY-YEAR SENTENCES ON THE FIRST-DEGREE ROBBERY CONVICTIONS ARE MANIFESTLY EXCESSIVE.
On its cross-appeal and in response to defendant's challenge to his sentence, the State argues:
I. THE SENTENCE IMPOSED WAS ILLEGAL; THE AWARD OF JAIL CREDITS WAS NOT AUTHORIZED BY LAW.
II. DEFENDANT'S SENTENCE ...