State of New Jersey v. Christoph F. Adams , 436 N.J. Super. 106 ( 2014 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1640-12T4
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
June 17, 2014
v.
APPELLATE DIVISION
CHRISTOPH F. ADAMS, a/k/a
CHRISTOPH J. ADAMS, CHRISTOPH
ALBERT and CHRISTOPH ALLEN,
Defendant-Appellant.
____________________________________
Submitted January 29, 2014 – Decided June 17, 2014
Before Judges Grall, Waugh and Accurso.
On appeal from Superior Court of New
Jersey, Law Division, Union County,
Indictment No. 11-05-0606.
Joseph E. Krakora, Public Defender, attorney
for appellant (Michael B. Jones, Assistant
Deputy Public Defender, of counsel and on
the brief).
Grace H. Park, Acting Union County
Prosecutor, attorney for respondent (Sara B.
Liebman, Special Deputy Attorney General/
Acting Assistant Prosecutor, of counsel and
on the brief).
The opinion of the court was delivered by
GRALL, P.J.A.D.
Defendant was arrested for a new crime while participating
in the Intensive Supervision Program (ISP) following
modification of a custodial sentence on a prior conviction to
permit that participation. R. 3:21-10(b)(6). The precise
question presented is whether defendant is entitled to jail
credits pursuant to Rule 3:21-8 against the sentence for the new
crime from the date of his arrest for that crime until the date
he was either sentenced by the judge for the new crime or
resentenced by the three-judge ISP panel for "fail[ure] to
perform satisfactorily following entry into" ISP, R. 3:21-10(e).
We conclude that a defendant in this circumstance is entitled to
jail credits for days in confinement from the date of arrest to
the date the first sentence is imposed.1
1
The appeal was argued without briefs in conformity with Rule
2:9-11, but the panel transferred the case to a calendar for
disposition after full briefing. In the brief submitted on
defendant's behalf, the issues are stated as follows:
POINT I
MR. ADAMS IS ENTITLED TO THE TIME BETWEEN
HIS ARREST AND THE REIMPOSITION OF HIS ISP
SENTENCE AS A MATTER OF LAW. HERNANDEZ
REQUIRES THAT CREDIT BE ALLOCATED FOR TIME
SPENT IN CUSTODY AND MR. ADAMS HAS NOT BEEN
CREDITED WITH ANY TIME FOR THAT PERIOD.
POINT II
MR. ADAMS IS ENTITLED TO THE TIME BETWEEN
HIS ARREST AND THE REIMPOSITION OF HIS ISP
SENTENCE BECAUSE IT WAS A TERM OF HIS PLEA
AGREEMENT, AT LEAST AS HE REASONABLY
UNDERSTOOD IT.
2 A-1640-12T4
Our decision is informed by State v. Hernandez, 208 N.J. 24
(2011), which addresses jail credits in a case involving
multiple charges, R. 3:21-8; N.J.S.A. 2C:44-5b. And it is
informed by State v. DiAngelo, 434 N.J. Super. 443 (App. Div.
2014), which applies Hernandez in a case involving resentencing
for a violation of probation.
I
The essential facts are procedural. In February 2010,
defendant Christoph Adams was convicted of second-degree
eluding, N.J.S.A. 2C:29-2b, and second-degree receipt of stolen
property, N.J.S.A. 2C:20-7, and in July 2010 he was sentenced to
concurrent four-year terms of imprisonment.2 Defendant's
subsequent motion to change that "custodial sentence to permit
[his] entry into [ISP]" was granted by the three-judge ISP panel
pursuant to Rule 3:21-10(b)(6).3
While participating in ISP, on February 16, 2011, defendant
was arrested and subsequently indicted for crimes committed on
that date. The indictment charged defendant with second-degree
aggravated assault, N.J.S.A. 2C:12-1b(1), and third-degree
2
The judgment of conviction is not in the record on appeal, but
according to defendant's pre-sentence report (PSR), it was
imposed in July 2010.
3
The order changing the sentence entered by the ISP panel is not
in the record on appeal. Defendant's PSR states that he entered
ISP on December 30, 2010.
3 A-1640-12T4
terroristic threats, N.J.S.A. 2C:12-3a-b. Defendant was also
subject to pending accusations charging disorderly persons
offenses committed during the same incident — harassment by
offensive touching, N.J.S.A. 2C:33-4b, and criminal mischief,
N.J.S.A. 2C:17-3b(2). Nothing in the record indicates that the
ISP panel reimposed defendant's custodial sentence the day after
his arrest.4 Quite obviously, defendant was not participating in
ISP following that arrest; he was held in jail in Union County,
where the new charges were pending.
On November 28, 2011, defendant pled guilty to second-
degree aggravated assault in return for the State's agreement to
recommend a term of imprisonment within the range appropriate
for a third-degree crime — three years, subject to terms of
parole ineligibility and supervision required by the No Early
Release Act (NERA) for second-degree assault, N.J.S.A. 2C:43-
7.2. The State further promised to dismiss the second count of
the indictment and the pending accusations. In addition, the
State agreed to recommend that the three-year sentence run
4
The pre-sentence report prepared for defendant's sentencing on
his conviction for second-degree aggravated assault states that
defendant was "charged with a Parole Violation" on February 17,
2011, but defendant was participating in ISP and the PSR does
not indicate that he was on parole for any other prior sentence.
The PSR also states that defendant "violated ISP within one and
a half months by committing" the aggravated assault on February
16, 2011.
4 A-1640-12T4
concurrent with any custodial sentence the ISP panel might
impose.
The ISP panel acted first. On January 13, 2012, 331 days
after defendant's arrest, the ISP panel resentenced him in
conformity with Rule 3:21-10(e). On January 13, the ISP panel
entered an order stating that it "reimposed original sentence
and returned [defendant] as a violator." (capitalization
omitted). The panel awarded defendant 48 days' "ISP TIME
CREDIT" — from December 30, 2010 to February 16, 2011, but it
did not award defendant ISP credit or jail credit for the 337
days between his arrest and its reimposition of the custodial
sentence.
Sentencing on the aggravated assault conviction was
initially scheduled for February 17, 2012. Because of a dispute
about jail credits, defendant was not sentenced until September
14, 2012. Thus, defendant was sentenced on his new conviction
246 days after the ISP panel resentenced him and 210 days after
his initial sentencing date.
The judge awarded defendant one day's jail credit for the
date of his arrest. That credit is not in dispute. On the
ground that defendant's pre-sentence confinement from February
17, 2011 forward was attributable to defendant's failure to
satisfactorily perform on ISP, the judge denied defendant jail
5 A-1640-12T4
credits for the 377 days he was confined from the day after his
arrest until the ISP panel resentenced him on January 13, 2012.
Nevertheless, considering the plea agreement for concurrency of
the sentences to be imposed by the ISP panel for the prior
convictions and by the judge for the aggravated assault
conviction, he awarded defendant 210 days' jail credit for the
delay in defendant's sentencing for aggravated assault from
February 17 to September 13, 2012. In fact, the State agreed
that award of the 210 days' jail credit was consistent with the
plea agreement and does not challenge that award.
II
In Hernandez, the Court so significantly clarified "the
manner in which jail credits, which are earned prior to the
imposition of the first custodial sentence, are to be awarded
with respect to multiple charges," that the Court determined the
decision should be applied "only prospectively to sentences
imposed as of" the day following issuance of its decision. 208
N.J. at 50-51 (recognizing that Hernandez "may be deemed
inconsistent with" prior interpretations of Rule 3:21-8).
Because Hernandez was decided on June 8, 2011, id. at 24, it
governs the jail credits awarded against defendant's sentence
for aggravated assault on September 14, 2012.
6 A-1640-12T4
Perhaps because the State framed its argument about credits
on the assumption that those credits could be awarded on either
but not both of the sentences, the judge did not consider
Hernandez. After all, Hernandez does not mention pre-sentence
confinement pending a resentencing by the ISP panel for
"fail[ure] to perform satisfactorily following entry into" ISP,
R. 3:21-10(e). The State's narrow focus is improper.
Hernandez establishes general principles that are
applicable here. As recently explained in DiAngelo, "[p]rior to
Hernandez, when a defendant in custody faced multiple charges,
[Rule 3:21-8] was interpreted to provide credit 'only for such
confinement as is attributable to the arrest or other detention
resulting from the particular offense.' State v. Black, 153
N.J. 438, 456 (1998) (citations and internal quotation marks
omitted)." DiAngelo, supra, 434 N.J. Super. at 452. Thus, the
parties' effort to identify the sentence to which the jail
credits would apply was in line with those prior decisions.
The quest to identify a single sentence to which jail
credits apply is inappropriate under Hernandez. The Court made
it clear that "[w]hen a defendant is confined prior to
sentencing on multiple charges, the defendant is entitled to
'credits against all sentences "for any time served in custody
in jail . . . between arrest and the imposition of sentence" on
7 A-1640-12T4
each case.'" State v. Rippy, 431 N.J. Super. 338, 348 (App.
Div. 2013) (quoting Hernandez, supra, 208 N.J. at 28 (quoting R.
3:21-8)) (emphasis in original), certif. denied, 217 N.J. 284
(2014). Under that principle,
A defendant is entitled to jail credits on
all cases for all days of confinement after
his arrest in that case and prior to
imposition of the first sentence, and that
is so even if a subsequent period of
confinement is on an arrest for a new charge
and regardless of matters of happenstance .
. . such as whether bail on one or more of
the prior charges has been revoked.
[Id. at 348; see Hernandez, supra, 208 N.J.
at 48-49.]
Where a defendant is entitled to jail credits under Rule
3:21-8 as interpreted in Hernandez, they are "mandatory, not
discretionary." Hernandez, supra, 208 N.J. at 37. Jail credits
authorized by Rule 3:21-8 "were conceived as a matter of equal
protection or fundamental fairness and a means of avoiding the
double punishment that would result if no such credits" for pre-
sentence confinement were awarded. Hernandez, supra, 208 N.J.
at 36.
Because jail credits provide day-for-day credits for time
spent in custody between arrest and imposition of sentence, R.
3:21-8; Hernandez, supra, 208 N.J. at 28, discretionary grants
or denials of jail credits "can promote sentence disparity" and
contravene "the very equal protection [Rule 3:21-8] was designed
8 A-1640-12T4
to promote." Id. at 49. Thus, the Hernandez Court held, "there
is no room for discretion[ary]" decisions on jail credits. Id.
at 48-49.
In this case, defendant was facing conviction and
sentencing on a new charge and resentencing on prior convictions
for which his custodial sentence had been changed to permit his
participation in ISP pursuant to Rule 3:21-10(b)(6). After that
change in sentence, defendant was not serving a custodial
sentence. He was serving a sentence in the community subject to
intensive supervision and could do so only for as long as he
"perform[ed] satisfactorily." R. 3:21-10(e); see State v. Clay,
230 N.J. Super. 509, 516-17 (App. Div. 1989) (discussing ISP
procedures for addressing violations and resentencing
procedures), aff'd o.b., 118 N.J. 251 (1990).
On defendant's failure to meet that standard, "[t]he three-
judge [ISP] panel [had] the authority to resentence [him], in
accordance with applicable statutes . . . ." R. 3:21-10(e); see
State v. Cannon, 128 N.J. 546, 554 (1992) (discussing ISP and
observing that all ISP participants who do not graduate are
returned to prison). Thus, under the terms of Rule 3:21-
10(b)(6), (e), following his arrest and pending resentencing by
the ISP panel, defendant was not subject to or serving a
custodial sentence. He was confined, without custodial
9 A-1640-12T4
sentence, pending resentencing on his 2010 convictions and
sentencing on his 2011 plea of guilty to aggravated assault.
During that period of confinement, he was not in the community
participating in ISP in conformity with his modified sentence,
and he was not "receiving day for day credit for time spent
under supervision of the program identical to the credit [he]
would be receiving if [he] had remained within the custody of
the Department of Corrections." Clay, supra, 230 N.J. Super. at
520.
Circumstances material to the jail credits changed
following the ISP panel's resentencing on January 13, 2012.
Thereafter, defendant was in custody and serving a custodial
sentence for his 2010 convictions. In DiAngelo, a panel of this
court concluded that a defendant confined pending resentencing
on an allegation of violating the conditions of probation was
entitled to jail credits for confinement pending resentencing as
a consequence of the violation. 434 N.J. Super. at 462. The
panel rejected the State's contention that a failed probationer
pending resentencing for violation of the conditions falls
outside Rule 3:21-8 because the failed probationer is simply
continuing service of a sentence imposed. Instead, the panel
concluded that a resentencing following a violation of probation
10 A-1640-12T4
is a new custodial sentence, one replacing a violated
probationary sentence. Id. at 454-57.
We see no reason to reach a different conclusion here. The
ISP pamphlet discussed in Clay set forth a resentencing
procedure and provides that proceedings on violations will
conform to statutes governing violations of probation,
specifically N.J.S.A. 2C:45-3 and N.J.S.A. 2C:45-4. 230 N.J.
Super. at 516-17.
A failed probationer and a failed participant in ISP are
similarly situated pending resentencing. Prior to failure to
comply with the conditions of the non-custodial sentence, both
were serving a sentence in the community subject to supervision,
albeit differing levels of supervision. After their respective
failures to comply, they both faced resentencing that could lead
to a custodial sentence that can be imposed under the law. R.
3:21-8; N.J.S.A. 2C:45-3b. In contrast, they are not similarly
situated to a parolee who violates the conditions of his or her
release. A parolee is released while compliant with parole
conditions for the uncompleted duration of a custodial sentence.
The parolee is subject to reincarceration for violation of a
condition, and upon revocation continues to serve the custodial
sentence from which he or she had been released.
11 A-1640-12T4
The State's reliance on State v. Black, 153 N.J. 438 (1998)
and State v. Carreker, 172 N.J. 100 (2002), is misplaced. As
the Supreme Court stressed in Hernandez, the defendants seeking
jail credits in those cases were serving custodial sentences.
208 N.J. at 44-45. Under Hernandez, a defendant who is serving
another custodial sentence is not entitled to relief under that
rule, because jail credits do not accrue while a defendant is
serving a sentence. 208 N.J. at 47.
But this defendant was not serving a custodial sentence
when he committed, and was arrested for committing, aggravated
assault in 2011. Although defendant had previously been serving
a custodial sentence on the 2010 charges, at the time of the
aggravated assault and his arrest for it in 2011, this
defendant's custodial sentence had been changed to permit his
participation in ISP. R. 3:21-10(b)(6).
Rule 3:21-8 requires an award of credits between arrest and
the imposition of a sentence. Defendant simply was not serving
his custodial sentence on any conviction while confined prior to
the first of his 2012 sentencings — the January 13, 2012 ISP
panel resentencing. Under Hernandez, the fact that defendant
was confined pending resentencing on his 2010 convictions did
not change the fact that he was also confined pending
12 A-1640-12T4
disposition and sentence on his 2011 guilty plea to aggravated
assault.
For all of the foregoing reasons, defendant is entitled to
331 days' jail credit against his conviction for aggravated
assault from his arrest on February 16, 2011 to the day before
he was resentenced by the ISP panel, January 13, 2012. Whether
or not defendant was "violated" or detained by authority of the
ISP is a matter of happenstance. See Hernandez, supra, 208 N.J.
at 45-49. He was confined during that period pending
resentencing on the 2010 conviction and pending sentencing on
the 2012 conviction. As the judge awarded defendant one day's
credit for the date of his arrest, we remand for an award of an
additional 330 days' jail credit for the period from February
17, 2011 to January 13, 2012.
Although the State does not raise the issue, it is
appropriate for this court to correct an award of jail credits
made contrary to law. See Rippy, supra, 431 N.J. Super. at 347-
48. As previously noted, Hernandez leaves no room for doubt
that after the first sentence on one of multiple pending charges
is imposed, jail credits no longer accrue. 208 N.J. at 47. As
of the day following the issuance of Hernandez, June 9, 2011,
judges had no discretion to award or deny jail credits where
none are due under Rule 3:21-8 as interpreted by the Court in
13 A-1640-12T4
that case. 208 N.J. at 48-51. Accordingly, the 210 days' jail
credit awarded defendant from February 17, 2012 to September 13,
2012 must be vacated.5
Given our resolution of the jail credits awarded in this
case, defendant's remaining arguments have insufficient merit to
warrant any additional discussion. R. 2:11-3(e)(2). To the
extent that defendant argues that he understood the agreement to
provide credit for all pre-sentence confinement against his
sentence, we do not understand Hernandez to authorize a plea
agreement for jail credits that is contrary to law. In any
event, because defendant did not move to vacate his guilty plea,
the question is not properly before us.
Affirmed as modified and remanded for adjustment of jail
credits in conformity with this opinion.
5
Defendant does not seek gap-time credits against his sentence
for aggravated assault, which includes a NERA parole
ineligibility term. As the Supreme Court noted in Hernandez,
gap-time credits awarded to a defendant on a sentence subject to
NERA parole ineligibility are likely to have no benefit. 208
N.J. at 38-41.
14 A-1640-12T4