NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2230-11T1
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, February 13, 2014 v. APPELLATE DIVISION
DANIELLE N. DIANGELO,
Defendant-Appellant. _______________________________
Submitted October 17, 2013 - Decided February 13, 2014
Before Judges Lihotz, Maven and Hoffman.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 09-10-1914 and 10-11-0332.
Joseph E. Krakora, Public Defender, attorney for appellant (Rochelle Watson, Assistant Deputy Public Defender, on the brief).
Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief; Matthew P. Tallia, on the brief).
The opinion of the court was delivered by
LIHOTZ, J.A.D.
We consider whether the scope of the Supreme Court's
holding announced in State v. Hernandez, 208 N.J. 24 (2011),
addressing jail credit calculations, extends to a defendant sentenced to a custodial term for a violation of probation
(VOP). In this matter, defendant Danielle N. DiAngelo was
sentenced to a non-custodial probationary term, after conviction
for a third-degree offense. While on probation, defendant was
jailed upon arrest for a new offense and did not post bail.
Probation filed an application to revoke defendant's
probationary sentence and impose a custodial term for the prior
conviction, then served defendant with the statement of charges
while she was in custody. In the subsequent VOP hearing,
defendant pled guilty. Citing Hernandez, she requested jail
credits to reduce the custodial term imposed for the VOP,
corresponding to the period of custody from arrest on new
charges to the date of sentencing. The State argued jail credit
applied only against the sentence on the new charges because
defendant was arrested solely on the new offenses and the
custodial term for the VOP was related to and part of the
initial sentence for her prior offense. The judge agreed and
concluded the VOP sentence was not a sentence to which Rule
3:21-8 (or the Rule) applied.
Following our review, we reject the State's argument, which
suggests the terms of defendant's initial probationary sentence
included incarceration in the event of a VOP, obviating
consideration of jail credits for time in custody between filing
2 A-2230-11T1 VOP charges and imposition of a custodial sentence for violating
probation. Rather, we conclude the public policy expressed by
the Supreme Court in Hernandez equally applies to VOP sentences.
Following this policy, we determine the issuance of the VOP
statement of charges to a defendant held in custody triggers the
right to receive jail credits against the VOP sentence for a
defendant's period of pre-adjudication custody, as well as
against the new offense, irrespective of whether a VOP summons
or warrant was issued. Accordingly, the trial court's order
denying defendant's application for jail credits against her VOP
sentence is reversed.
I.
As a result of an incident occurring on July 17, 2009,
defendant was arrested and charged under Middlesex County
Indictment No. 09-10-1914.1 On January 20, 2010, she pled guilty
to third-degree forgery, N.J.S.A. 2C:21-1(a)(2), for which a
four-year non-custodial probationary sentence was imposed.
On August 27, 2010, defendant was arrested for a separate
forgery offense committed during the prior month.2 She waived
1 Defendant was arrested on August 3, 2009, and posted bail on August 7, 2009. The judgment of conviction reflected five days jail credit. 2 Defendant was released on bail on October 30, 2010, and the judgment of conviction reflects sixty-five days jail credit.
3 A-2230-11T1 indictment and pled guilty to third-degree forgery, as charged
in Middlesex County Accusation No. 10-11-0332. She was
sentenced on this charge on December 20, 2010. At sentencing,
defendant also pled guilty to a VOP, related to Indictment 09-
10-1914.
At the time of sentencing on the Accusation and VOP, the
Middlesex County judge was informed Monmouth County Indictment
10-12-2333 had been returned against defendant five days
earlier. The Monmouth County indictment, which was based on
events occurring in Millstone between July 22 and July 26, 2010,
charged defendant with three third-degree offenses: forgery,
N.J.S.A. 2C:21-1(a)(2), uttering a forged instrument, N.J.S.A.
2C:21-1(a)(3), and theft by unlawful taking, N.J.S.A. 2C:20-
3(a).3 The Middlesex County judge imposed a sentence continuing
defendant's probation on Indictment 09-10-1914. On Accusation
No. 10-11-0332, he imposed a concurrent three-year probationary
term.
On May 9, 2011, defendant was again arrested on a bench
warrant regarding Monmouth County Indictment No. 10-12-2333.
3 On March 19, 2011 defendant was arrested for possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), under Middlesex County Accusation No. 11-06-220. This charge was later dismissed when she provided a valid prescription for the possessed medication.
4 A-2230-11T1 She did not post bail and remained incarcerated. She pled
guilty to two counts of that indictment.
On May 23, 2011, while defendant was incarcerated on the
Monmouth charges, Middlesex County Probation moved to revoke
probation on Middlesex County Indictment 09-10-1914 and
Accusation No. 10-11-0332, in part because defendant had
violated probation for a second time and "failed to remain
offense-free while under active [p]robation supervision[.]" In
addition to commission of new offenses, the statement of charges
identified additional reasons to revoke the probationary
sentence.4 The VOP summary stated defendant was "entitled to a
total number of 5 day[s] [j]ail [c]redit for 09-10-01914-I and
65 days [j]ail [c]redit for 10-11-00332-A." On June 30, 2011,
defendant pled guilty to violating the terms of her probation
imposed on Indictment 09-10-1914 and Accusation 10-11-0332.
Defendant also pled guilty on August 5, 2011, to two of the
three Monmouth County charges and was sentenced to three years
in prison on each conviction, to be served "concurrent to each
other and concurrent" to the sentence on Middlesex Indictment
No. 09-10-1914 and Accusation 10-11-0332. She was awarded jail
4 These reasons were defendant's failure to: report as required, provide documentation of drug and alcohol evaluations, verify employment, provide drug screens, and pay the balance of ordered fines.
5 A-2230-11T1 credit against the sentence imposed on the Monmouth County
convictions for the custodial periods of March 23 to April 5,
2011, and May 9 to August 4, 2011, a total of 102 days.
During the VOP sentencings, held on September 8, 2011, the
State requested imposition of a custodial term. The VOP judge
agreed, terminated defendant's probation, and sentenced her to a
three-year custodial term for each conviction, to run
concurrently with each other, and concurrently to her Monmouth
County sentences.
In addition to the jail credits identified on the prior
judgment of convictions, defendant requested additional credit
from May 23, 2011, when the Middlesex VOP was filed, to August
5, 2011, when she began serving the Monmouth County sentence.5
The judge rejected this request and limited jail credits on
Indictment 09-10-1914 to 37 days for time served from August 3
to August 7, 2009, and August 27 to September 27, 2010; and, on
Accusation 10-11-0332, to 65 days for the period in custody from
August 27 to October 30, 2010.6 Defendant appealed.
5 Defendant further argued she was entitled to thirty-four days of gap-time credit. 6 We understand defendant was released from custody on December 11, 2010. Although an award of jail credits at this juncture would not affect defendant's time in custody, the appeal should not be treated as moot and dismissed because the issue is of public importance and bound to recur time and again (continued)
6 A-2230-11T1 Initially, this matter was included on our October 16, 2012
Excessive Sentencing Oral Argument calendar. See R. 2:9-11. We
ordered the matter relisted after full briefing, to address the
impact of Hernandez on the calculation of jail credits related
to a VOP sentence, asking:
(1) whether the period "between arrest and the imposition of a sentence," Rule 3:21-8, includes any part of the period from (a) incarceration on a new charge, after imposition of the initial probationary sentence, and (b) re-sentence after a violation of probation; and if so (2) when accumulation of re-sentence jail credits, while in custody on new charges, shall be deemed to occur[.]
On appeal, defendant maintains she is entitled to jail
credit against her VOP sentences for time spent in custody from
May 9, 2011, when she was arrested on the Monmouth County
offenses or, alternatively, from May 23, 2011, the date the VOP
charges were filed, to August 4, 2011, the day before her
sentencing on the Monmouth convictions. In a single argument
she states:
UNDER STATE V. HERNANDEZ, 208 N.J. 24 (2011), [DEFENDANT], WHO WAS SERVING A PROBATIONARY SENTENCE WHEN SHE WAS ARRESTED ON A NEW OFFENSE, IS ENTITLED TO JAIL
(continued) unless and until a decision determines what course should be taken. State v. Grecco, 187 N.J. Super. 421, 423 (App. Div. 1982) (citing State v. Allen, 73 N.J. 132, 138-39 (1977)). We therefore proceed to review the merits.
7 A-2230-11T1 CREDITS AGAINST HER VIOLATION OF PROBATION SENTENCES FOR THE ENTIRE PERIOD SHE WAS IN PRE[-]SENTENCE CUSTODY ON THE NEW OFFENSE, DURING WHICH THE PROBATION REVOCATION CHARGES WERE PENDING.
The State refutes defendant's claimed entitlement to jail
credits, except for the period from June 30, 2011, the
acceptance of defendant's VOP guilty plea, to August 4, 2011,
the day prior to sentencing on the Monmouth County convictions,
noting bail would have been considered "consolidated" on the
earlier date. The State also concedes defendant is entitled to
thirty-four days gap-time credit from August 5 to September 7,
2011, the day before the VOP sentencing. Accordingly, we need
to consider only whether jail credit must be awarded against
defendant's VOP sentence for any period from her May 9, 2011
arrest on new charges to June 29, 2011.
II.
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. Rippy,
431 N.J. Super. 338, 347 (App. Div. 2013) (citation and internal
quotation marks omitted). In our review, we accord no special
deference to a trial judge's "'interpretation of the law and
legal consequences that flow from established facts[.]'" State
v. McKeon, 385 N.J. Super. 559, 567 (App. Div. 2006) (quoting
8 A-2230-11T1 Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995)). We review legal issues de novo.
The determination of a defendant's eligibility for jail
credits, which in effect reduces the time to be served on a
sentence, is governed by the Rule, as most recently interpreted
by the Court in Hernandez. Consistent with the dictates of
fundamental fairness, Rule 3:21-8 directs a "defendant shall
receive credit on the term of a custodial sentence for any time
served in custody or jail or in a state hospital between arrest
and imposition of sentence." R. 3:21-8. Jail credits are so-
called "day-for-day credits." Hernandez, supra, 208 N.J. at 37
(citing Buncie v. Dep't of Corr., 382 N.J. Super. 214, 217 (App.
Div. 2005), certif. denied, 186 N.J. 606 (2006)). "[They] are
applied to the 'front end' of a defendant's sentence, meaning
that he or she is entitled to credit against the sentence for
every day . . . held in custody for that offense prior to
sentencing." Ibid.
Prior to Hernandez, when a defendant in custody faced
multiple charges, the Rule 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). A defendant sentenced for multiple
9 A-2230-11T1 offenses was afforded credit for presentence custody, which was
matched to the criminal offense resulting in confinement. See
State v. Carreker, 172 N.J. 100, 115 (2002) (declining credit
against a New Jersey sentence as the defendant was already
serving a New York sentence and a condition of the transfer to
New Jersey for disposition of pending charges was she continue
to serve the New York sentence); State v. Hemphill, 391 N.J.
Super. 67, 70 (App. Div.) (limiting application of jail credits
to the particular offense for which there was confinement or
detention), certif. denied, 192 N.J. 68 (2007). Credit for the
same days of confinement could not be awarded against more than
one sentence; rather, credits were awarded only against the
imposed sentence for the offense causing defendant's arrest.
See In re Hinsinger, 180 N.J. Super. 491, 499 (App. Div.)
(noting Rule 3:21-8 "only applies to confinement directly
attributable to the particular offense giving rise to the
initial incarceration"), certif. denied, 88 N.J. 494 (1981);
State v. Marnin, 108 N.J. Super. 442, 444 (App. Div.) ("But time
spent in custody is required to be credited only against the
sentence on the charge which brought about that custody."),
certif. denied, 55 N.J. 598 (1970); State v. Allen, 155 N.J.
Super. 582, 585 (App. Div.) (declining to credit sentences
imposed for offenses in different counties, explaining "to give
10 A-2230-11T1 . . . credit . . . in both counties would bestow . . .
impermissible double credit"), certif. denied, 77 N.J. 472
(1978), disapproved by Hernandez, supra, 208 N.J. at 49.
In some instances, credit was discretionary, awarded
"'based on considerations of fairness, justice and fair
dealings.'" Hernandez, supra, 208 N.J. at 37 (quoting Hemphill,
supra, 391 N.J. Super. at 70 (granting credit for confinement in
Scotland while awaiting extradition on New Jersey charges)).
See also State v. Grate, 311 N.J. Super. 456, 458-59 (App. Div.
1998) (applying jail credits even though the defendant's
incarceration was "not directly a consequence of the arrest" but
"was nevertheless fairly attributable to the indictment on which
he was eventually sentenced").
In Hernandez, the Court sought to resolve questions
surrounding the accrual of jail credits "for time spent in
presentence custody on multiple charges" after noting the denial
of jail credits caused an inequity, particularly among indigent
defendants unable to post bail, who remained in pre-adjudication
custody on multiple offenses. Hernandez, supra, 208 N.J. at 45.
"[T]he Court reasoned that uniformity in the award of jail
credits is required to avoid sentencing disparity and provide
equal treatment." Rippy, supra, 431 N.J. Super. at 347 (citing
Hernandez, supra, 208 N.J. at 49). The application of Rule
11 A-2230-11T1 3:21-8, as expressed in Hernandez, intends to eliminate
inconsistencies in sentences by assuring the real time
consequence of a sentence is not dependent upon which charge is
resolved first, whether charges are embodied in a single
indictment or multiple indictments, or on factors subject to the
application of discretion or possible manipulation. Hernandez,
supra, 208 N.J. at 48-49.
Concluding the language of the Rule was clear, the Court
held "defendants are entitled to precisely what the Rule
provides: credits against all sentences 'for any time served in
custody[,] in jail or in a state hospital between arrest and the
imposition of sentence' on each case." Id. at 28 (quoting R.
3:21-8). Thus, the Court held the Rule mandates a defendant
receives jail credit for time spent in presentence custody
against all sentences imposed on all convictions. Ibid.
Concisely, presentence credit begins upon arrest until the first
sentencing. Id. at 50. "[O]nce the first sentence is imposed,
a defendant awaiting imposition of another sentence accrues no
more jail credit under Rule 3:21-8." Ibid.
Hernandez did not specifically address the question here
presented: that is, whether a defendant, initially arrested and
held on one charge, who is then served with a VOP for committing
that new offense, may receive jail credits not only against the
12 A-2230-11T1 sentence imposed for the new offense, but also for any custodial
term imposed for the VOP. We acknowledge neither the statutory
scheme governing probationary sentences nor Rule 3:21-8 cedes a
direct answer to this question.
"A [VOP] is the vehicle by which the probation officer
brings a probationer before the court for non-compliance."
Adult Violation of Probation Guidelines and Procedures,
Directive #7-08 (issued April 7, 2008), 1-2 (Guidelines).7 Prior
to completion or discharge of a probationary sentence, when
Probation has probable cause to believe a defendant disregarded
the conditions of a probationary sentence by committing a new
offense, a defendant may be arrested and held pending a hearing
on the charges stated in the VOP. N.J.S.A. 2C:45-3(a)(2). See
also State v. Wilkins, 230 N.J. Super. 261, 264 (App. Div.)
(holding a defendant may be found to have violated probation by
engaging in a new offense even before conviction of a new
crime), certif. denied, 117 N.J. 84 (1989). The court may order
a defendant held "without bail, pending a determination of the
charge[.]" N.J.S.A. 2C:45-3(a)(3). "[T]he issuance of an
arrest warrant or a summons cannot occur as a result of a mere
whim, but instead must be precipitated by the preparation of
7 Available at http://www.judiciary.state.nj.us/directive/2008/ dir_7_08a.pdf.
13 A-2230-11T1 underlying documentation that would support the conclusion that
there is probable cause to believe defendant has violated the
terms of his [or her] probation." State v. Nellom, 178 N.J.
192, 200-01 (2003). "Each of those initiatives is intended to
notify [the] defendant that he [or she] is being charged with
violating probation and to bring him or her before the court."
Id. at 199.
"With respect to a defendant who violates a probationary
condition, the initial question is whether the violation
justifies revocation of probation. Some violations are more
serious than others." State v. Baylass, 114 N.J. 169, 175
(1989). Once a court determines "the defendant has inexcusably
failed to comply with a substantial requirement imposed as a
condition of the order or if he has been convicted of another
offense, [the court] may revoke the suspension or probation and
sentence or resentence the defendant," N.J.S.A. 2C:45-3(a)(4),
imposing "any sentence that might have been imposed originally
for the offense of which he was convicted." N.J.S.A. 2C:45-
3(b). "Thus, a probation violation, although it has no bearing
on the original sentence, may affect the later 'in-out' decision
whether to incarcerate the defendant." Baylass, supra, 114 N.J.
at 174.
14 A-2230-11T1 The State argues jail credits, as authorized by the Rule,
are not triggered under the facts of this case. Noting the Rule
grants jail credit for custodial time "between arrest and the
imposition of sentence," the State contends a VOP sentence is
merely a continuation of a previously imposed sentence, not a
newly imposed sentence, making the Rule inapplicable. Further,
the State maintains defendant's confinement was unrelated to her
VOP charges because she was neither arrested nor detained for
violating probation. Because defendant was incarcerated for
commission of a new third-degree offense and received jail
credits against that conviction for the time held, no additional
credit is warranted. We examine these separate issues in more
detail.
The State first contends a custodial term imposed following
conviction for a VOP is merely "a resentence," which is legally
distinguishable from the imposition of an initial sentence
following conviction, as referenced in Rule 3:21-8. Drawing an
analogy to a parole violation, the State, cites Black, supra,
153 N.J. at 461, to suggest a VOP sentence is merely part of the
initial sentence to which jail credits do not apply.
Upon conviction of a VOP, our courts have referred to the
imposition of "a resentence," likely in keeping with the
phraseology used by the Legislature in N.J.S.A. 2C:45-3(a)(4)
15 A-2230-11T1 (authorizing the court to "revoke the suspension or probation
and sentence or resentence the defendant" (emphasis added)).
The term "resentence" also reflects the principle that "'the
sentence imposed after revocation of probation should be viewed
as focusing on the original offense rather than on the violation
of probation as a separate offense.'" State ex rel. C.V., 201
N.J. 281, 297 (2010) (quoting State v. Ryan, 86 N.J. 1, 8, cert.
denied, 454 U.S. 880, 102 S. Ct. 363, 70 L. Ed. 2d 190 (1981)).
Despite the label, we disagree that a sentence imposed once
probation is revoked is analogous to a violation of parole.
Drawing on the Court's discussion in Hernandez, we conclude the
time spent by a probationer who is in custody awaiting
adjudication for a VOP is not analogous to a defendant arrested
and held for a parole violation.
"Parole is a period of supervised release by which a
prisoner is allowed to serve the final portion of his sentence
outside the gates of the institution on certain terms and
conditions, in order to prepare for his eventual return to
society." Black, supra, 153 N.J. at 447 (citations and internal
quotation marks omitted). When "a parolee is taken into custody
on a parole warrant, the confinement is attributable to the
original offense on which the parole was granted and not to any
offense or offenses committed during the parolee's release."
16 A-2230-11T1 Id. at 461. Consequently, confinement pursuant to the
revocation of parole, even if revocation resulted from
commission of a new offense, is time served "only against the
original sentence" because imprisonment was "attributable only
to the parole violation." Id. at 456. Jail credits do not
apply because confinement was "time accrued after imposition of
a custodial sentence." Hernandez, supra, 208 N.J. at 44-45.
A sentence imposed following conviction for a VOP is not a
continuation of the initial sentence and Black is not
controlling. We conclude a custodial sentence following
conviction for a VOP is a separate sentence falling within the
parameters of the phrase "imposition of sentence" as used in
Rule 3:21-8.
The decision to sentence a probationer to imprisonment
after conviction of a VOP is the result of distinct proceedings.
Baylass, supra, 114 N.J. at 172-76. A sentencing judge must
identify and weigh aggravating and mitigating factors at the
probation violation hearing to determine the appropriate
sentence. State v. Molina, 114 N.J. 181, 183 (1989) (citing
Baylass, supra, 114 N.J. at 173). In this process, whether a
custodial sentence should be imposed requires a new
determination, not merely ordering a custodial term
17 A-2230-11T1 predetermined at the time of the initial sentencing for the
underlying offense.
In a different context, the Court concluded a trial court
was mistaken in believing that upon sentencing for a VOP it was
bound to impose a parole disqualifier, waived by the prosecutor
upon imposition of the initial probationary sentence. State v.
Peters, 129 N.J. 210, 216-17 (1992); State v. Vasquez, 129 N.J.
189, 195 (1992). The Court made clear, a "defendant did not at
the time of pleading guilty to the underlying offense waive the
right to appeal the prosecutor's attempt to apply the parole
ineligibility term to [the] defendant's sentence on violation of
his probation." Vasquez, supra, 129 N.J. at 195. This approach
highlights the originality of the exercise of judicial
discretion, as guided by the Code of Criminal Justice, when
entering a sentence on a VOP conviction. Therefore, in our view
such a sentencing is like any other.8
Hernandez provides a more basic reason to reject the
State's position that jail credits do not apply to a VOP
sentence. The Court's analysis emphasized the defendant's
8 Although inapplicable to this matter, we are aware this court has drawn a distinction in the consequences upon resentencing for violation of the terms of special probation, authorized by N.J.S.A. 2C:35-14. See State v. Bishop, 429 N.J. Super. 533, 541-42 (App. Div.), certif. granted, 216 N.J. 14 (2013).
18 A-2230-11T1 "custodial status." Hernandez, supra, 208 N.J. at 47. ("Ms.
Hernandez should be entitled to jail credit . . . for the time
she spent in custody between her . . . arrest and the date
sentence was imposed . . . (at which time her custodial status
changed by virtue of the fact she began to serve a sentence).").
Thus, Hernandez clarifies that "imposition of sentence" set
forth in the Rule means a "custodial sentence," which by
definition would exclude a non-custodial probationary one. Id.
at 36. See also State v. Towey, 114 N.J. 69, 86 (1989)
(explaining "the thrust of [Rule 3:21-8] is to restrict credit
to 'custodial' confinements, either in jail or in a state
hospital" which were involuntary, thus excluding a defendant's
voluntary admission to a treatment hospital); Hernandez, supra,
208 N.J. at 42 (discussing Towey's holding, stating "we held the
defendant's hospital confinement was not custodial within the
meaning and requirements of [Rule 3:21-8])."
Having found a VOP sentence falls within the bounds of a
sentence to which Rule 3:21-8 applies, entitling a defendant to
jail credit for pre-adjudication confinement, we next consider
the State's second argument that defendant was not arrested or
confined for a VOP, precluding accrual of jail credits. Noting
no detainer was lodged with the statement of VOP charges, the
State advocates jail credit were properly denied because
19 A-2230-11T1 "[d]efendant was 'in custody' . . . because of her Monmouth
County arrest, not her Middlesex County VOP[.]"
The State's position embraces the fact that probation
violations vary in severity such that the treatment of
violations differs. The filing of a VOP is not always
accompanied by an arrest warrant. We confine our review to a
defendant who is in custody after commission of another criminal
offense while on probation, and against whom a summons for a VOP
has been issued rather than an arrest warrant.
When a defendant commits a new offense while on probation:
(1) The court may summon the defendant to appear before it or may issue a warrant for his arrest;
(2) A probation officer or peace officer, upon request of the chief probation officer or otherwise having probable cause to believe that the defendant has failed to comply with a requirement imposed as a condition of the order or that he has committed another offense, may arrest him without a warrant;
(3) The court, if there is probable cause to believe that the defendant has committed another offense or if he has been held to answer therefor, may commit him without bail, pending a determination of the charge by the court having jurisdiction thereof[.]
[N.J.S.A. 2C:45-3(a) (emphasis added).]
The Guidelines also state: "If a determination is made to
file a VOP because of a new arrest, the probation officer shall
20 A-2230-11T1 request the Superior Court to issue a warrant or a summons to
appear . . . prior to the expiration of the term of
supervision." Guidelines, supra, at 5. Further, the Guidelines
direct a VOP must be filed when a probationer commits a new
first or second degree offense, and filed "in most cases" when a
probationer is arrested for a third or fourth degree offense.
Ibid.
Despite the ideal expressed by N.J.S.A. 2C:45-1(a) and the
Guidelines to achieve consistent probation supervision
strategies, these provisions allow discretionary decisions on
whether the probationer should be arrested pending review of the
alleged VOP. Moreover, caseload efficiencies among county
probation departments may vary the treatment of similarly
situated probationers charged with violating the terms of
probation.
The Court identified uniformity and equality as the
paramount goals to be achieved in criminal sentencing.
Hernandez, supra, 208 N.J. at 48-49. These goals are necessary
to maintain fundamental fairness in the treatment of all
defendants. More specifically, the Court directed jail credits
must be consistently applied to promote uniformity in sentencing; there is no room for discretion in either granting or denying credits. Both can promote sentence disparity based on the lack of uniformity in exercising discretion. Thus, such
21 A-2230-11T1 discretion avoids the very equal protection the Rule was designed to promote.
[Ibid.]
This is especially true for the "'presumably innocent but poor
defendant' who could not make bail or conditions of pre-trial
release." Id. at 36 (quoting Richardson v. Nickolopoulos, 110
N.J. 241, 249 n. 2 (1988)).
Hernandez examined two instances where the defendants were
held on multiple offenses, one where charges arose in the same
county, and the other where charges originated in different
counties. Hernandez, supra, 208 N.J. at 28-30. As the Court
expounded:
In this context[,] it is inconceivable that two defendants sentenced to the same sentences for the same crimes in two different counties should actually serve different amounts of real time depending only on the sequence and timing of the imposition of sentence. . . . Neither the Code of Criminal Justice nor our rules of procedure contemplate that the real time a defendant is to serve in custody should turn on which case a prosecutor or court decides to move first.
[Id. at 46-47.]
This pronouncement makes clear that the overarching public
policy must be to provide consistency in awarding jail credits
to achieve fairness in sentencing to all.
22 A-2230-11T1 When viewed in such a light, we are hard-pressed to agree
that application of jail credits among defendants similarly
situated should vary because Probation requested a warrant or
detainer for one, but only served a statement of charges to
another. Hernandez directs such sentencing disparity be
eliminated. Id. at 48-49.
Here, defendant's commission of new third-degree offenses
could have subjected her to arrest for violating probation, yet
her circumstances of detention on the new charges may have
mitigated the need to also seek an arrest warrant for the VOPs.
This type of discretionary determination should not preclude her
entitlement to jail credit on the VOP sentence because she
actually was in custody awaiting adjudication on both her new
charge and the VOP. Ibid. Under these circumstances, Hernandez
constrains allowing an exercise of a discretion — the request to
arrest or detain for the VOP — to impact the real time
consequences of a defendant's sentence. Id. at 46-47.9
Accordingly, when a VOP statement of charges for a
commission of a first, second, third or fourth degree offense is
9 Our determination is limited to defendants held prior to adjudication. Certainly, had defendant made bail after being arrested on the Monmouth County charges prior to issuance of the VOP statement of charges, which were not accompanied by a request for an arrest warrant, the issue of awarding jail credit on the VOP would not arise.
23 A-2230-11T1 served on a confined defendant, the statement of charges serves
as the substantial equivalent of an arrest as used in Rule 3:21-
8. The serving of the statement of charges to a defendant who
is confined triggers the award of jail credits for the period of
pre-adjudication confinement against the VOP sentence and the
sentence for the new offense. See Hernandez, supra, 208 N.J. at
36 (stating "'Rule 3:21-8 expresses the public policy of the
State and should be liberally construed'" (citing State v.
Beatty, 128 N.J. Super. 488, 491 (App. Div. 1974))). We stress
the requirement is to award jail credits against sentences for
all charges causing pre-adjudication confinement, and to avoid
parsing custodial credit among charges resulting in confinement.
As to when the jail credit clock commences, defendant urges
credit accrue with her arrest for the new charges. She
maintains this date provides certainty and insures fundamental
fairness, eliminates the possibility of sentencing disparity.
See Hernandez, supra, 208 N.J. at 48-49. Defendant also
contends other events, such as the filing of the statement of
charges, detainer, probation chief's warrant, bench warrant, or
court order to be held without bail, "are all subject to
vagaries" of negligent delay or willful manipulation.
We reject defendant's assertion credit against the VOP
sentence begins upon her arrest on new charges. The Court's
24 A-2230-11T1 direction in Hernandez that jail credits commence upon arrest,
id. at 47-49, must be viewed in the context of the circumstances
examined. Ms. Hernandez was denied jail credit against the
sentence imposed for the conviction on charges causing her
initial arrest. Id. at 28-30. Consequently, the pre-custodial
period for which credit was sought commenced with the
defendant's arrest. Ibid. Unlike Hernandez, defendant's
request in this case to grant credit upon arrest would include a
period of time preceding the submission of the VOP statement of
charges. We cannot sanction the award of jail credit prior to
the filing of the VOP charges.
The more appropriate date for credit against the VOP
sentence is the date the VOP statement of charges issued. We
accept this date primarily because VOPs do not automatically
issue, but must be supported by probable cause. Wilkins, supra,
230 N.J. Super. at 264 (providing evidence of alleged criminal
conduct, prior to conviction, is sufficient to support VOP).
Therefore, Probation cannot pursue a VOP until and unless it has
probable cause of a defendant's violation of probation. We are
satisfied the Guidelines sufficiently direct the timing of the
filing of VOPs to insure charges will not be delayed once
Probation learns a defendant has committed a new offense.
Absent a showing of an abusive exercise of authority, it would
25 A-2230-11T1 be unreasonable to grant defendant credit for the custodial time
elapsing prior to the filing of a VOP statement of charges.
Here, defendant was arrested on the Monmouth County charges
on May 9, 2011. The statement of charges for the VOP was filed
on May 23, 2011. Defendant is entitled to seventy-four days
jail credit from May 23 to August 4, 2011, which includes the
period conceded by the State from June 30 to August 4, 2011.
The JOC must be amended to reflect these credits, as well as the
agreed thirty-four days gap-time credit, for August 5 to
September 8, 2011.
Reversed and remanded.
26 A-2230-11T1