NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5472-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SEAN A. ROBERTS,
Defendant-Appellant. ________________________
Submitted October 3, 2019 – Decided October 22, 2019
Before Judges Fuentes and Enright.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 16-05-1569.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Timothy Denny, Assistant Deputy Public Defender, of counsel and on the brief).
Theodore N. Stephens II, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Sean Roberts appeals from the May 1, 2018 order denying him
525 days of jail credit on the prison sentence he received on a conviction for
unlawful possession of a weapon. We affirm.
In June 2009, defendant entered guilty pleas on two indictments. On one
indictment, he pled guilty to a lesser charge of second-degree manslaughter,
N.J.S.A. 2C:11-4(b), and second-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(b). On the second indictment, he pled guilty to an amended
charge of third-degree theft, N.J.S.A. 2C:20-3.
On July 9, 2009, defendant was sentenced on these indictments. The
sentencing court imposed an aggregate sentence of seven years' incarceration,
with an eighty-five percent period of parole ineligibility and three years of
mandatory parole supervision, in accordance with the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2. Defendant was released on parole on September
10, 2014.
Defendant was arrested again on October 9, 2015 and subsequently
indicted on a single count of second-degree unlawful possession of a handgun,
N.J.S.A. 2C:39-5(b). According to the parties' submissions, a parole warrant
issued against the defendant on October 15, 2015.
A-5472-17T3 2 The Parole Board revoked defendant's parole on June 16, 2016, and he
completed serving his original sentence without parole on September 11, 2017.
He remained incarcerated thereafter pending the outcome of the second degree
unlawful possession of a handgun charge.
On January 17, 2017, defendant pled guilty to the unlawful possession of
a handgun. Judge Mark S. Ali sentenced him on March 17, 2017, to a five-year
prison term with a forty-two month parole disqualifier, to run concurrently to
his parole violation sentence. The amended Judgment of Conviction confirms
defendant received six days of jail credit on this sentence, based on the period
running from defendant's arrest date of October 9, 2015 until the day before the
parole warrant issued, October 14, 2015.
After defendant was sentenced, he filed a motion asking the court to award
him 525 days of jail credit. He argued he was entitled to these jail credits on the
unlawful possession of a weapon conviction, from the day he was arrested for
this offense until the day he was sentenced on the offense. Defendant's motion
was denied on May 1, 2018.
On appeal, defendant raises the following argument:
DEFENDANT IS ENTITLED TO JAIL CREDITS FROM THE DATE OF HIS ARREST ON THE INSTANT CHARGES TO THE DATE OF SENTENCING.
A-5472-17T3 3 Rule 3:21-8 provides that "[t]he defendant shall receive credit on the term
of a custodial sentence for any time served in custody in jail or in a state hospital
between arrest and the imposition of sentence." The credit provided by the Rule
is commonly known as a "jail credit." Richardson v. Nickolopoulos, 110 N.J.
241, 242 (1988).
Jail credits are "day-for-day credits." Buncie v. Dep't of Corr., 382 N.J.
Super. 214, 217 (App. Div. 2005). They are applied to the "front end" of a
defendant's sentence. Booker v. N.J. State Parole Bd., 136 N.J. 257, 263 (1994).
Jail credits therefore reduce a defendant's overall sentence and any term of
parole ineligibility. State v. Rippy, 431 N.J. Super. 338, 348 (App. Div. 2013);
State v. Mastapeter, 290 N.J. Super. 56, 64 (App. Div. 1996). Jail credits prevent
a defendant from serving double punishment because without them, time spent
in custody before sentencing would not count toward the sentence. State v.
Rawls, 219 N.J. 185, 193 (2014).
The argument defendant makes here was addressed and rejected by our
Supreme Court twenty-one years ago in State v. Black, 153 N.J. 438 (1998). In
that case, the defendant was originally sentenced to a three-year term for drug
offenses. 153 N.J. at 441. He was released on parole but violated the conditions
of parole when he failed to report to his parole officer. Ibid. A parole warrant
A-5472-17T3 4 was issued and he was also indicted for absconding. Id. at 441-42. The
defendant was eventually returned to custody for the parole violation, at which
point his parole was formally revoked. He was ordered to complete the
remaining 337 days of his prison term on his drug conviction, commencing as
of the date he returned to custody. Id. at 442. The defendant later pled guilty
to the absconding charge and was sentenced to a three-year prison term to run
concurrent to his original sentence. Ibid. Although the 103 days the defendant
spent in custody from the date of his arrest on the parole violation to the day
prior to sentencing was applied to his parole violation term, he sought to also
have those days applied as jail credits to his sentence on the absconding
conviction. Ibid.
Writing for a unanimous Court, Justice Stein began his analysis in Black
by noting that Rule 3:21-8 "has been interpreted to require credit only for 'such
confinement as is attributable to the arrest or other detention resulting from the
particular offense.'" Id. at 456 (quoting State v. Allen, 155 N.J. Super. 582, 585
(App. Div. 1978)). Conversely:
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. If the parole warrant is thereafter withdrawn or parole is not revoked, and the defendant is convicted
A-5472-17T3 5 and sentenced on new charges based on the same conduct that led to the initial parole warrant, then jail time should be credited against the new sentence. 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, except in the rare case where the inmate has once again become parole eligible on the original offense but remains incarcerated because of the new offense.
[Id. at 461.]
Notwithstanding the holding in Black, defendant argues that Black "can no
longer stand" due to the "fundamental shift in jail credit jurisprudence" established
in State v. Hernandez, 208 N.J. 24 (2011).
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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-5472-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SEAN A. ROBERTS,
Defendant-Appellant. ________________________
Submitted October 3, 2019 – Decided October 22, 2019
Before Judges Fuentes and Enright.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 16-05-1569.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Timothy Denny, Assistant Deputy Public Defender, of counsel and on the brief).
Theodore N. Stephens II, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Sean Roberts appeals from the May 1, 2018 order denying him
525 days of jail credit on the prison sentence he received on a conviction for
unlawful possession of a weapon. We affirm.
In June 2009, defendant entered guilty pleas on two indictments. On one
indictment, he pled guilty to a lesser charge of second-degree manslaughter,
N.J.S.A. 2C:11-4(b), and second-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(b). On the second indictment, he pled guilty to an amended
charge of third-degree theft, N.J.S.A. 2C:20-3.
On July 9, 2009, defendant was sentenced on these indictments. The
sentencing court imposed an aggregate sentence of seven years' incarceration,
with an eighty-five percent period of parole ineligibility and three years of
mandatory parole supervision, in accordance with the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2. Defendant was released on parole on September
10, 2014.
Defendant was arrested again on October 9, 2015 and subsequently
indicted on a single count of second-degree unlawful possession of a handgun,
N.J.S.A. 2C:39-5(b). According to the parties' submissions, a parole warrant
issued against the defendant on October 15, 2015.
A-5472-17T3 2 The Parole Board revoked defendant's parole on June 16, 2016, and he
completed serving his original sentence without parole on September 11, 2017.
He remained incarcerated thereafter pending the outcome of the second degree
unlawful possession of a handgun charge.
On January 17, 2017, defendant pled guilty to the unlawful possession of
a handgun. Judge Mark S. Ali sentenced him on March 17, 2017, to a five-year
prison term with a forty-two month parole disqualifier, to run concurrently to
his parole violation sentence. The amended Judgment of Conviction confirms
defendant received six days of jail credit on this sentence, based on the period
running from defendant's arrest date of October 9, 2015 until the day before the
parole warrant issued, October 14, 2015.
After defendant was sentenced, he filed a motion asking the court to award
him 525 days of jail credit. He argued he was entitled to these jail credits on the
unlawful possession of a weapon conviction, from the day he was arrested for
this offense until the day he was sentenced on the offense. Defendant's motion
was denied on May 1, 2018.
On appeal, defendant raises the following argument:
DEFENDANT IS ENTITLED TO JAIL CREDITS FROM THE DATE OF HIS ARREST ON THE INSTANT CHARGES TO THE DATE OF SENTENCING.
A-5472-17T3 3 Rule 3:21-8 provides that "[t]he defendant shall receive credit on the term
of a custodial sentence for any time served in custody in jail or in a state hospital
between arrest and the imposition of sentence." The credit provided by the Rule
is commonly known as a "jail credit." Richardson v. Nickolopoulos, 110 N.J.
241, 242 (1988).
Jail credits are "day-for-day credits." Buncie v. Dep't of Corr., 382 N.J.
Super. 214, 217 (App. Div. 2005). They are applied to the "front end" of a
defendant's sentence. Booker v. N.J. State Parole Bd., 136 N.J. 257, 263 (1994).
Jail credits therefore reduce a defendant's overall sentence and any term of
parole ineligibility. State v. Rippy, 431 N.J. Super. 338, 348 (App. Div. 2013);
State v. Mastapeter, 290 N.J. Super. 56, 64 (App. Div. 1996). Jail credits prevent
a defendant from serving double punishment because without them, time spent
in custody before sentencing would not count toward the sentence. State v.
Rawls, 219 N.J. 185, 193 (2014).
The argument defendant makes here was addressed and rejected by our
Supreme Court twenty-one years ago in State v. Black, 153 N.J. 438 (1998). In
that case, the defendant was originally sentenced to a three-year term for drug
offenses. 153 N.J. at 441. He was released on parole but violated the conditions
of parole when he failed to report to his parole officer. Ibid. A parole warrant
A-5472-17T3 4 was issued and he was also indicted for absconding. Id. at 441-42. The
defendant was eventually returned to custody for the parole violation, at which
point his parole was formally revoked. He was ordered to complete the
remaining 337 days of his prison term on his drug conviction, commencing as
of the date he returned to custody. Id. at 442. The defendant later pled guilty
to the absconding charge and was sentenced to a three-year prison term to run
concurrent to his original sentence. Ibid. Although the 103 days the defendant
spent in custody from the date of his arrest on the parole violation to the day
prior to sentencing was applied to his parole violation term, he sought to also
have those days applied as jail credits to his sentence on the absconding
conviction. Ibid.
Writing for a unanimous Court, Justice Stein began his analysis in Black
by noting that Rule 3:21-8 "has been interpreted to require credit only for 'such
confinement as is attributable to the arrest or other detention resulting from the
particular offense.'" Id. at 456 (quoting State v. Allen, 155 N.J. Super. 582, 585
(App. Div. 1978)). Conversely:
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. If the parole warrant is thereafter withdrawn or parole is not revoked, and the defendant is convicted
A-5472-17T3 5 and sentenced on new charges based on the same conduct that led to the initial parole warrant, then jail time should be credited against the new sentence. 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, except in the rare case where the inmate has once again become parole eligible on the original offense but remains incarcerated because of the new offense.
[Id. at 461.]
Notwithstanding the holding in Black, defendant argues that Black "can no
longer stand" due to the "fundamental shift in jail credit jurisprudence" established
in State v. Hernandez, 208 N.J. 24 (2011). We disagree.
In Hernandez, the court considered the fate of two defendants who sought "jail
credit for time spent in presentence custody on multiple charges," but who were not
"seeking jail credits for time accrued after imposition of a custodial sentence."
Writing for a majority of the Court in Hernandez, our colleague Judge Stern1 noted:
"We have not previously addressed these circumstances or the meaning of Rule 3:21-
1 In September 2010, Chief Justice Rabner temporarily assigned Judge Stern to serve on the Supreme Court. Judge Stern served with distinction in this capacity until his retirement in 2011. A-5472-17T3 6 8 when a defendant who is incarcerated awaiting disposition on charges is also held
awaiting disposition on other charges." Id. at 45. The Hernandez Court concluded
that "jail credits, which are earned prior to the imposition of the first custodial
sentence, are to be awarded with respect to multiple charges. Again, once the first
sentence is imposed, a defendant awaiting imposition of another sentence accrues
no more jail credit under Rule 3:21-8." Id. at 50.
The Hernandez Court distinguished, but did not disturb the holding in Black.
Id. at 42-43. In fact, the Hernandez Court specifically noted that the defendant in
Black was "serving a custodial sentence, and we concluded [he was] not entitled to
presentence jail credits against a new sentence for time served in custody while those
charges were pending." Id. at 44. The Hernandez Court continued, "[t]he custodial
status of Hernandez . . . differs from that of the defendant[] in Black. Hernandez
. . . seek[s] jail credit for time spent in presentence custody on multiple charges and
[is] not seeking jail credits for time accrued after imposition of a custodial sentence."
Id. at 45.
In the absence of a Supreme Court opinion directly addressing the
circumstances before the Court in Black, and unequivocally overruling its
interpretation of Rule 3:21-8, we decline to stray from its clear holding precluding
the award of the additional jail credits defendant seeks.
A-5472-17T3 7 Defendant's remaining arguments lack sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(2).
Affirmed.
A-5472-17T3 8