STATE OF NEW JERSEY v. MICHAEL J. DIEDUARDO STATE OF NEW JERSEY v. MICHAEL SHORTER (08-07-0265, WARREN COUNTY AND STATEWIDE)(11-08-0619, ESSEX COUNTY AND STATEWIDE)(14-06-0354, SOMERSET COUNTY AND STATEWIDE)(CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE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-0236-15T3
A-0984-15T3
A-1044-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL J. DIEDUARDO a/k/a MICHAEL
JOHN DIEDUARDO, ANTHONY DIEDUARDO,
JOHN TETELMAN,
Defendant–Appellant.
_____________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL SHORTER a/k/a MICHAEL SHORTOR,
MICHAEL LAMONT SHORTER, MIKE WILLIAMS,
Defendant-Appellant.
_______________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CARMELO SOTO,
Defendant-Appellant.
___________________________________
Submitted May 23, 2017 – Decided June 20, 2017
Before Judges Reisner and Rothstadt.
On appeal from Superior Court of New Jersey,
Law Division, Warren County, Indictment No.
08-07-0265, Essex County, Indictment No. 11-
08-0619, and Somerset County, Indictment No.
14-06-0354.
Joseph E. Krakora, Public Defender, attorney
for appellants (Ruth E. Hunter, Designated
Counsel, on the briefs).
Christopher S. Porrino, Attorney General,
attorney for respondents in A-0236-15 and A-
1044-15 (Ian C. Kennedy, Deputy Attorney
General, of counsel and on the briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent in A-0984-15 (Carol
M. Henderson, Deputy Attorney General, of
counsel and on the brief).
PER CURIAM
These three appeals, which we have consolidated for purposes
of writing one opinion, raise issues about each defendants'
entitlement to jail credits for time spent in out-of-state custody,
federal custody, or while on probation in a drug treatment
program.1 The appeals were filed in reliance upon the Supreme
Court's opinion in State v. Hernandez, 208 N.J. 24, 36 (2011),
1
All of the appeals were originally listed on our Excessive
Sentence Oral Argument calendar but then transferred to our plenary
calendar for full briefing.
2 A-0236-15T3
which the Court subsequently modified and clarified in two later
cases. See State v. C.H., 228 N.J. 111 (2017) and State v. Joe,
228 N.J. 125 (2017). C.H. addressed jail credits in the context
of a court imposing consecutive sentences under two different
indictments, C.H., supra, 228 N.J. at 113, and Joe dealt with the
issues presented in these appeals, to wit, "whether incarceration
outside of New Jersey on out-of-state charges entitles a defendant
to jail credit pursuant to Rule 3:21-8." Joe, supra, 228 N.J. at
126. The Court concluded in Joe that incarceration that is not
based solely on New Jersey charges does not justify an award of
jail credits. Id. at 135. We therefore reach the same conclusion
as to defendants' claims in these appeals and affirm. Also, we
affirm defendant Soto's sentence despite his arguments on appeal
that it was excessive.
We summarize the facts relevant to defendants' contentions.
Defendant Michael Shorter pled guilty in 2011 to three counts of
an indictment that charged him with third-degree controlled
dangerous substance (CDS) distribution offenses. He was sentenced
in accordance with his plea agreement to "Drug Court," and he was
admitted into the program. Had he not been admitted, he faced
five years in prison with a thirty-month parole disqualifier as
provided for in his plea agreement. At sentencing, he received
3 A-0236-15T3
187 days jail credit for time spent in jail from the date of his
arrest to sentencing.
Approximately two weeks after being sentenced, Shorter
entered an in-patient drug program, but nine days later he
absconded. In July 2013, Shorter was arrested and incarcerated
in North Carolina on unrelated charges and remained in custody in
that state through approximately the end of May 2015. He was
later brought before the court in New Jersey, where he was
sentenced to the five-year term subject to the thirty-month parole
disqualifier stated in his plea agreement. He received additional
credit for time spent in jail in New Jersey awaiting sentencing.
Shorter filed a motion for additional jail credits for time
served in North Carolina. The court, citing Rule 3:21-8 and State
v. Hemphill, 391 N.J. Super. 67, 71 (App. Div.), certif. denied,
192 N.J. 68 (2007), denied the motion, reasoning that because
Shorter was in another jurisdiction on charges stemming from the
foreign jurisdiction, "credit toward the New Jersey charge does
not commence until the local charges are cleared."
Defendant Carmelo Soto pled guilty in May 2015 to various
charges, including a weapons charge, relating to a burglary he
committed. After pleading guilty, and while out on bail, he was
charged by federal authorities with committing a bank robbery and
4 A-0236-15T3
placed in federal custody.2 The Law Division later sentenced Soto
on the burglary charge, in accordance with his plea agreement, to
five years with a forty-two month period of parole ineligibility.
The court awarded eighty days of jail credit for time spent in
state custody, but refused to allow jail credit for time spent in
federal custody.
Defendant Michael Dieduardo pled guilty in May 2015 to a
third-degree CDS violation he committed in 2008. After he
committed the offense, Dieduardo was imprisoned in New York for
approximately 259 days on charges arising in that state. He was
sentenced in New Jersey on August 14, 2015, on the CDS charge to
three years' probation with time served, concurrent to the period
of parole he was serving for his New York offenses. The court
refused to allow jail credit for any time Dieduardo spent
incarcerated in New York. The court stated, however, that because
Dieduardo was being sentenced to a probationary term, rather than
prison, the issue of jail credit was not determined, as its
application would abide his sentence to prison upon a violation
of probation, if any.
On appeal, defendant Dieduardo argues:
2
Soto was initially arrested and placed in county jail. His
charges were transferred to federal court, making him a federal
prisoner.
5 A-0236-15T3
DEFENDANT SHOULD HAVE RECEIVED JAIL CREDITS
FOR THE TIME HE SPENT IN CUSTODY IN NEW YORK
BETWEEN ARREST AND SENTENCING PURSUANT TO
[HERNANDEZ, supra, 208 N.J. at 24].
Defendant Shorter argues:
POINT I
DEFENDANT SHOULD HAVE RECEIVED JAIL CREDITS
FOR THE TIME HE SPENT IN CUSTODY IN NORTH
CAROLINA BETWEEN ARREST AND SENTENCING
PURSUANT TO [HERNANDEZ, supra, 208 N.J. at
24].
POINT II
DEFENDANT SHOULD HAVE RECEIVED JAIL CREDITS
FROM 10/12/11 TO 10/21/11 FOR THE TIME HE
SPENT IN A RESIDENTIAL TREATMENT PROGRAM
PURSUANT TO N.J.S.A. 2C:35-14(f)(4).
Defendant Soto argues:
POINT I
DEFENDANT SHOULD HAVE RECEIVED JAIL CREDITS
FOR THE TIME HE SPENT IN FEDERAL CUSTODY
BETWEEN ARREST AND SENTENCING PURSUANT TO
[HERNANDEZ, supra, 208 N.J. at 24].
POINT II
DEFENDANT'S SENTENCE WAS EXCESSIVE. U.S.
Const. Amend. VI, XIV, N.J. Const. Art I, ¶¶
1, 9, 10.
"A challenge to an award or denial of jail credits, as
inconsistent with Rule 3:21-8, constitutes an appeal of a sentence
'not imposed in accordance with law.'" State v. DiAngelo, 434
N.J. Super. 443, 451 (App. Div. 2014) (quoting State v. Rippy, 431
6 A-0236-15T3
N.J. Super. 338, 347 (App. Div. 2013), certif. denied, 217 N.J.
284 (2014)). As such, we review the trial court's decision de
novo, according "no special deference to a trial judge's
'interpretation of the law and legal consequences that flow from
established facts[.]'" Ibid. (alteration in original) (quoting
State v. McKeon, 385 N.J. Super. 559, 567 (App. Div. 2006)).
Applying this standard, we first turn to defendants'
arguments for jail credits for time spent in jurisdictions other
than New Jersey. We conclude from our review that Dieduardo's
contention is not ripe for consideration3 because he may never
face imprisonment, which is when the issue of jail credit would
need to be addressed. See R. 3:21-8; State v. Evers, 368 N.J.
Super. 159, 170-73 (App. Div. 2004) (stating jail credit is
applicable to the term of a custodial sentence and a sentence to
probation is not custodial).
As to Soto's and Shorter's contentions, we find them to be
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2). Suffice it to say, the Court made
clear in Joe "that defendants who are confined out of state on
3
See Comm. to Recall Menendez v. Wells, 204 N.J. 79, 99 (2010);
see also Hamdan v. Rumsfeld, 548 U.S. 557, 720, 126 S. Ct. 2749,
2847, 165 L. Ed. 2d 723, 832 (2006) (alteration in original)
(citation omitted) (stating courts will not resolve claims that
are "contingent [upon] future events that may not occur as
anticipated, or indeed may not occur at all").
7 A-0236-15T3
non-New Jersey charges are not entitled to jail credit for time
spent in pre-sentence custody." Joe, supra, 228 N.J. at 138. That
holding eviscerates defendants' arguments.
We find equally without merit Shorter's contention that he
is entitled to jail credit for the time he spent in the drug
treatment program. First, Shorter never raised the issue before
the sentencing court, and, therefore, it is not amenable to our
review. See State v. Harris, 209 N.J. 431, 445 (2012) (stating
"[d]efendant may not present entirely new arguments" on appeal);
see also State v. Robinson, 200 N.J. 1, 20-22 (2009); Neider v.
Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Second, assuming
that, as Shorter alleges, he was sentenced to "Drug Court," under
"Track 1," N.J.S.A. 2C:35-14, rather than "Track 2," N.J.S.A.
2C:45-1, he still would not be entitled to jail credit for his
nine-day attendance at the in-patient program. There was no
evidence that he "satisfactorily complied with the terms and
conditions of [Drug Court]," which is a condition to receiving
jail credit for time spent in the program. N.J.S.A. 2C:35-
14(f)(4).
Finally, we consider Soto's contention that his sentence was
excessive because "it was based on aggravating factors not
supported by the record." The sentencing court found aggravating
factor three, N.J.S.A. 2C:44-1(a)(3) (likelihood that defendant
8 A-0236-15T3
will commit another offense), and factor nine, N.J.S.A. 2C:44-
1(a)(9) (need to deter defendant and others from violating the
law). The court also found mitigating factor six, N.J.S.A. 2C:44-
1(b)(6) (defendant will compensate the victim of his conduct).
After making those findings, the court sentenced Soto in accordance
with his plea agreement.
On appeal, Soto takes issue with the trial court rejecting
mitigating factor four4 because, according to Soto, "poverty is
clearly a substantial grounds tending to excuse conduct with
respect to the offense of burglary." Accordingly, he argues "the
record supports a finding under N.J.S.A. 2C:43-6(b) that [he] be
sentenced a degree lower." Soto further argues he "was eligible
for a waiver of the mandatory minimum parole ineligibility term
under the Graves Act waiver provision, N.J.S.A. 2C:43-6.2, as [he]
had no prior Graves Act offenses" and, therefore, the court should
reduce his parole ineligibility period. We disagree.
Our review of a trial court judge's sentence is limited.
"[T]rial judges are given wide discretion so long as the sentence
imposed is within the statutory framework." State v. Dalziel, 182
N.J. 494, 500 (2005). If a sentencing court provides the reasons
4
Mitigating factor four provides, "There were substantial
grounds tending to excuse or justify the defendant's conduct,
though failing to establish a defense[.]" N.J.S.A. 2C:44-1(b)(4).
9 A-0236-15T3
for its sentence, weighing the appropriate aggravating and
mitigating factors, see State v. Kruse, 105 N.J. 354, 363 (1987),
we will disturb its determination only if it represents a "clear
error of judgment that [] shocks the judicial conscience." State
v. Roth, 95 N.J. 334, 364 (1984). In our review, we will presume
that "[a] sentence imposed pursuant to a plea agreement is . . .
reasonable because a defendant voluntarily '[waived] . . . his
right to a trial in return for the reduction or dismissal of
certain charges, recommendations as to sentence and the like.'"
State v. Fuentes, 217 N.J. 57, 70-71 (2014) (alteration in
original) (quoting State v. Davis, 175 N.J. Super. 130, 140 (App.
Div.), certif. denied, 85 N.J. 136 (1980)).
Applying this deferential standard, we find Soto's arguments
to be without merit as we discern no abuse of the court's
discretion or error in judgment in imposing the sentence called
for in Soto's plea agreement. There is nothing about the sentence
that shocks our judicial conscience.
Affirmed.
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