STATE OF NEW JERSEY VS. ADOLPHUS FOSTER (14-05-0530, GLOUCESTER COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1507-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ADOLPHUS FOSTER,
Defendant-Appellant.
____________________________
Submitted May 30, 2019 – Decided August 2, 2019
Before Judges Accurso and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Gloucester County, Indictment No. 14-05-
0530.
Adolphus Foster, appellant pro se.
Charles A. Fiore, Gloucester County Prosecutor,
attorney for respondent (Dana R. Anton, Senior
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Adolphus Foster – who had been sentenced on March 11, 2016
to an extended State prison term of eight years with four years of parole
ineligibility as a persistent offender after he was convicted of third-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(1),1 at a bench trial – appeals from the
trial court's order denying what the court characterized as his August 11, 2017
"pro se 'Notice of Motion Pursuant to R[ule] 3:21-8 Credit for Confinement
Pending Sentence.'" Defendant filed that motion seeking 455 days of additional
jail credit from his incarceration on September 26, 2013 until the date he claims
he was released, December 24, 2014. 2
In the court's combination "opinion and order," it stated that defendant
"filed his initial [post-conviction relief (PCR)] petition on May 17, 2016,
arguing that the judgment of conviction should be corrected and that he is
entitled to additional jail credits for the 455 days that he spent incarcerated on a
1
The presentence report, judgment of conviction and the judge's oral statement
at sentencing relate that defendant was convicted of third-degree aggravated
assault and cite to N.J.S.A. 2C:12-1(b)(1). We recognize an assault under
subsection (b)(1) is a second-degree crime. N.J.S.A. 2C:12-1(b). Inasmuch as
defendant was sentenced to a term in the second-degree range as a persistent
offender, we deduce the statutory citation was an error. The judgment of
conviction should be amended to reflect the correct statute.
2
At sentencing, defendant was awarded fifty-three days' jail credit from July 8,
2013 through July 14, 2013; September 22, 2013; and January 26, 2016 through
March 10, 2016.
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parole violation. This [c]ourt denied his initial petition on July 13, 2016"
because the time period for which defendant sought the credits was attributable
to a parole violation, not his aggravated assault sentence.
The trial court found that defendant, in his August 2017 motion, "again
argu[ed] that he is entitled to the jail credit of 455 days for the same reasons
addressed in the initial [PCR] petition" which the court "consider[ed] . . . as a
pro se motion to reconsider its decision to deny [defendant's] initial PCR
petition" and denied the motion finding: defendant "has failed to present any
new grounds in his motion" and its review of "its opinion from July 13, 2016
[revealed] no reason to call into question the [c]ourt's ruling there. State v.
Black, 153 N.J. 438 (1998) still remains the controlling law."
In his self-authored merits brief, defendant argues:
THE TRIAL COURT ERRED IN DENYING
APPELLA[NT] AWARD OF JAIL CREDITS
PURSUANT TO [RULE] 3:21-8 BY WRITTEN
OPINION.
Although the trial court incorrectly considered defendant's August 2017 motion
as a motion to reconsider its denial of defendant's PCR petition, we affirm but
remand for a determination of the exact number of jail credits.
As the State acknowledges in its merits brief, the trial court did not deny
defendant's initial motion on July 13, 2016 because of the holding in Black. The
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court denied defendant's motion "without prejudice, allowing [d]efendant to
refile the motion following the completion of his appeal" which had been filed
before the motion and which was then pending. 3 The trial court never ruled on
the merits of the motion – which was not a PCR petition but a motion to correct
the judgment of conviction to reflect correct jail credits. "The award of jail
credits raises issues of law that we review de novo." State v. Walters, 445 N.J.
Super. 596, 600 (App. Div. 2016).
Defendant argues, following his initial arrest on September 22, 2013, he
posted bail that same day 4 but was rearrested on September 26, 2013, and the
State filed additional charges against him – upgrading the prior charge to
aggravated assault. He contends under State v. Hernandez, 208 N.J. 24 (2011),
he is entitled to additional jail credits from September 26, 2013 to December 24,
3
We affirmed defendant's conviction on August 16, 2017. State v. Foster, No.
A-3872-15 (App. Div. Aug. 16, 2017).
4
According to the presentence report, after defendant posted bail, he was held
on "a previously disposed case" and was not released until September 24, 2013.
He does not argue entitlement to jail credit from September 22 through 24.
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2014, for a total of 454 days.5 His argument, however, fails to take into account
that he was arrested by his parole officer when he reported on September 26.6
Once a parole warrant is issued, unless "the warrant is withdrawn or parole
is not revoked and the defendant is not returned to custody," State v. Harvey,
273 N.J. Super. 572, 576 (App. Div. 1994); see also Black, 153 N.J. at 459,
credits are properly applied "to the original offense on which the parole was
granted and not to any offense or offenses committed during the parolee's
release," Black, 153 N.J. at 461; see also Harvey, 273 N.J. Super. at 573, 574-
75.
If parole is revoked, then the period of incarceration
between the parolee's confinement pursuant to the
parole warrant and the revocation of parole should be
credited against any period of reimprisonment ordered
by the parole board. Any period of confinement
following the revocation of parole but before
sentencing on the new offense also should be credited
only against the original sentence . . . .
[Black, 153 N.J. at 461.]
5
The trial court's July 13, 2016 and September 8, 2017 orders state defendant
sought 455 days of jail credit.
6
The presentence report provides defendant was sentenced in December 2009
for second-degree burglary, N.J.S.A. 2C:18-2 – treated as a third-degree crime
for sentencing purposes – to a four-year State prison term subject to the No Early
Release Act, N.J.S.A. 2C:43-7.2, and was paroled on September 12, 2012.
A-1507-17T4
5
Thus Hernandez, 208 N.J. at 48-49, which addressed the application of jail
credits in cases involving multiple charges and held defendants are to receive
credit on all sentences for any time spent incarcerated while awaiting sentencing
on the pending charges, is inapposite.
The record does not include a parole warrant. If one was issued on
September 26, 2013, jail credits were properly awarded from that date against
defendant's original sentence for which defendant was on parole. If the warrant
was issued on a different date, the trial court on remand should ascertain that
date and award credits against the original sentence from that date; any period
of confinement prior to that date should be awarded against the aggravated
assault sentence. Although defendant contends he was paroled on December 24,
2014, we note that the presentence report indicates he was released to a treatment
facility on September 25, 2014, and that his parole sentence was completed on
September 14, 2015. If the presentence report is correct, defendant should
receive jail credits from September 15, 2015 on the aggravated assault sentence,
not from the January 26, 2016 date awarded by the trial court; defendant did not
have to wait until his bail was revoked on the aggravated assault charge to
receive credit on that sentence. See id. at 48 (recognizing that the award of
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credits cannot turn on circumstances – including the revocation of bail – subject
to whim or manipulation).
We therefore remand this matter to the trial court to determine when the
parole warrant was issued, when defendant's parole-related incarceration ended
and for the award of credits consistent with this opinion. We also note the
presentence report indicates that "defendant was lodged in the jail for the instant
offense" – the aggravated assault – on July 8, 2013 and was released on bond on
July 14, 2013; the trial court awarded jail credits for this period. The record
contains only one warrant – W-2013-000951-0806 – issued on September 26,
2013, charging aggravated assault, N.J.S.A. 2C:12-1(b)(1). The presentence
report lists other warrants purportedly related to this matter: W-2013-000941-
0806 and W-2013-000686-0806.7 We were not provided with copies of those
warrants. Hence we do not know the dates of the offenses related to those
warrants and the ties they may have to the July periods of incarceration or this
case.8 The police report contained in the record lists only one date on which the
aggravated assault was committed: September 22, 2013. The parties' merits
7
The judgment of conviction also lists these warrants as "Original Charges"
that were apparently dismissed.
8
The presentence report also inexplicably lists a May 25, 2013 "offense date[]"
in the court history related to this matter.
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briefs do not mention in their respective statement of facts that the offense
occurred earlier than that date. The trial court, therefore, should also determine
if its award of credits for the July period of incarceration is tethered to the crime
for which defendant was sentenced.
In the preliminary statement of his merits brief, defendant mentions
without further briefing that he "seeks . . . [j]udicial [n]otice . . . of the lack of
jurisdiction of the Superior Court to impose the persistent offender extended
term." We noted in our decision on defendant's first appeal that he "concede[d]
his record qualifies him for the imposition of a discretionary extended term,"
State v. Foster, slip op. at 10. Defendant, however, did not raise this issue to
the trial court and we decline to consider his claim. State v. Robinson, 200 N.J.
1, 20, 22 (2009). Further, because defendant has not offered any argument on
this point, we treat it as abandoned. Sklodowsky v. Lushis, 417 N.J. Super. 648,
657 (App. Div. 2011) (noting an issue not briefed on appeal is deemed waived).
Affirmed as modified; remanded for calculation of jail credits and
amendment of the judgment of conviction to reflect the correct statutory citation
for the crime for which defendant was sentenced. We do not retain jurisdiction.
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