State v. Hernandez

Justice HOENS,

dissenting.

Through the use of a single sentence embodied in Rule 3:21-8, this Court has defined a straightforward mechanism to award defendants credit for time spent in custody prior to imposition of sentence following a conviction. Its spare and simple language bears recitation: “The 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.” Ibid.

Commonly called jail credit, the method set forth in our Rule has long served the overarching goals of our sentencing statutes, while protecting defendants’ due process and equal protection rights. The Rule governing jail credit provides “day-for-day credits,” see Buncie v. Dep’t of Corr., 382 N.J.Super. 214, 217 , 888 A.2d 483 (App.Div.2005), certif. denied, 186 N.J. 606 , 897 A.2d 1061 (2006), through which time spent in custody relating to a particular charged offense is counted toward the eventual sentence on that offense, including any period of parole ineligibility that has been imposed, thus reducing the time remaining to be served, see Booker v. N.J. State Parole Bd., 136 N.J. 257, 263-65 , 642 A.2d 984 (1994); State v. Mastapeter, 290 N.J.Super. 56, 64 , 674 A.2d 1016 (App.Div.), certif. denied, 146 N.J. 569 , 683 A.2d 1164 (1996). Its operation is different from, and it serves a different purpose than, gap time credit, see N.J.S.A. 2C:44-5(b), which is a statutory mechanism that provides credit toward a second-imposed sentence *52 for time spent serving an earlier one, see Booker, supra, 136 N.J. at 260 , 642 A.2d 984 , but which does not reduce a period of parole ineligibility, see id. at 261 , 642 A.2d 984 (concluding that legislature intended parole disqualification period to be “‘an absolute term, against which there are to be no credits (other than jail credits)’ ”) (quoting Booker v. N.J. State Parole Bd., 265 N.J.Super. 191, 207 , 625 A.2d 1153 (App.Div.1993) (citing N.J.S.A 30:4-123.51a)).

The wording of the jail credit Rule, which leaves no doubt about its meaning or about the manner in which it operates when multiple charges or offenses are addressed in separate sentencing proceedings, has been stated repeatedly and applied consistently. Twice in the past this Court has taken the opportunity to emphasize the meaning of Rule 3:21-8 through published opinions, each time making precise our intention about its operation. See State v. Carreker, 172 N.J. 100, 115 , 796 A.2d 847 (2002); State v. Black, 153 N.J. 438, 456 , 710 A.2d 428 (1998). Our holdings were explicit about the meaning of the Rule and we expressly limited its award of jail credit 1 by permitting it to apply “only for such confinement as is attributable to the arrest or other detention resulting from the particular offense.” Black, supra, 153 N.J. at 456 , 710 A.2d 428 (citations and internal quotations omitted).

Consistent with that understanding of the Rule, we refused to allow jail credit to a defendant who, while serving a sentence imposed in New York, was returned to this State pursuant to the Interstate Agreement on Detainers (IAD), N.J.S.A 2A:159A-1 to -15. See Carreker, supra, 172 N.J. at 115 , 796 A.2d 847 . Even though defendant’s presence here was for the purpose of awaiting trial on New Jersey charges, and even though defendant was eventually sentenced on those charges, she was not entitled to jail *53 credit for that time. Ibid. Instead, we reasoned that because the I AD required that she continue to serve her New York sentence as a condition of her transfer, see N.J.S.A. 2A:159A-5(f), she was not held here because of the then-pending New Jersey charges, with the result that jail credit toward her eventual New Jersey sentence was not available under our Rule, see Carreker, supra, 172 N.J. at 115 , 796 A.2d 847 .

The decisions by this Court confirmed an understanding of the Rule that had been utilized by our trial and appellate courts in a long line of published opinions dating back decades. Those opinions were entirely uniform both in their reading and in their application of the Rule, regardless of the claims being raised by defendants seeking a new or different interpretation. One and all, they held, and we agreed, that the Rule is strictly limited in its application, explaining, for example, that “[w]hile R. 8:21-8 speaks in terms of credit for time spent in custody between arrest and sentencing, it is clear that the confinement must be ‘directly attributable’ to the particular offense for which the credits apply.” State v. Jones, 184 N.J.Super. 626, 629 , 446 A.2d 1263 (Law Div.1982).

From the very earliest analysis of Rule 3:21-8, our appellate courts have consistently interpreted it to limit the application of jail credits to the particular offense or offenses for which there was confinement or detention. See, e.g., State v. Hemphill, 391 N.J.Super. 67, 70 , 917 A.2d 247 (App.Div.) (holding that defendant who was captured and held in custody in the United Kingdom based on New Jersey warrant was entitled to jail credit for that time in custody following conviction of charge that supported warrant), certif. denied, 192 N.J. 68 , 926 A.2d 853 (2007); State v. Dela Rosa, 327 N.J.Super. 295, 298 , 743 A.2d 336 (App.Div.) (holding that transfer from New York to appear on Bergen County indictments pursuant to IAD did not qualify for jail credit on sentence following New Jersey conviction), certif. denied, 164 N.J. 191 , 752 A.2d 1293 (2000); In re Hinsinger, 180 N.J.Super. 491, 499-500 , 435 A.2d 850 (App.Div.) (holding that defendant *54 arrested and held as material witness was not entitled to jail credit against sentence for contempt when he refused to testify), certif. denied, 88 N.J. 494 , 443 A.2d 708 (1981). Simply put, Rule 3:21-8 only applies to confinement directly attributable to the particular offense giving rise to the initial incarceration.

Our courts have been uniform and consistent in the application of the Rule governing jail credits. For example, they have granted credit against a New Jersey sentence if defendant was held in another state’s institution longer than he otherwise would have been because of a New Jersey detainer, see State v. Beatty, 128 N.J.Super. 488, 491 , 320 A.2d 514 (App.Div.1974), but not if the detainer was unrelated to the reason that defendant remained incarcerated elsewhere, see State v. Council, 137 N.J.Super. 306, 308-09 , 349 A.2d 71 (App.Div.1975), and not if defendant elected to be brought to New Jersey pursuant to the I AD and, while being held here, continued to be credited for time on a federal sentence, see State v. Mercadante, 299 N.J.Super. 522, 531 , 691 A.2d 819 (App.Div.), certif. denied, 150 N.J. 26 , 695 A.2d 668 (1997).

Similarly, the appellate courts have concluded that the Rule does not operate to treat jail time as if it were “money on deposit in the bank or a credit card, it may not be drawn on or credited for penalties imposed” for other unrelated crimes. State v. Marnin, 108 N.J.Super. 442, 445 , 261 A.2d 682 (App.Div.1970) (refusing to grant credit for earlier-served time on unrelated illegal sentence), certif. denied, 59 N.J. 435 , 283 A.2d 534 (1971), cert. denied, 400 U.S. 835 , 91 S.Ct. 70 , 27 L.Ed.2d 67 (1970); see State v. Hill, 208 N.J.Super. 492, 494-95 , 506 A.2d 373 (App.Div.) (declining to read Rule to create credit for jail time spent awaiting trial on indictment that was eventually dismissed so that it could be used to reduce sentence imposed on charges in another county as to which detainer had been filed), certif. denied, 104 N.J. 412 , 517 A.2d 411 (1986).

Not only is our existing jurisprudence consistent, but there is nothing unusual about the way in which the Rule should operate in the two unrelated appeals that the Court consolidated for eonsid- *55 eration in this appeal. Defendant Hernandez, facing sentences imposed for convictions in two different counties, and defendant Rose, charged with multiple crimes in more than one indictment in a single county, present familiar fact patterns in which the Rule has been interpreted previously. Until today, the Rule has been applied to such fact patterns to limit jail credit so that it only applies to the sentence for the particular offense to which incarceration was directly attributable.

The circumstances presented by defendant Hernandez were addressed, for example, in State v. Allen, 155 N.J.Super. 582 , 383 A.2d 138 (App.Div.), certif. denied, 71 N.J. 472, 391 A.2d 487 (1978). There, the Appellate Division considered the Rule’s operation as to a defendant held in Somerset County on charges brought there, who was then convicted in Middlesex County, following which he returned to Somerset County and entered a guilty plea to the original charges. Id. at 583, 383 A.2d 138 . The court reasoned that defendant, who was granted jail credits against the Somerset sentence for the time spent in the Somerset County jail, was not also entitled to credit for the same time as against his Middlesex County sentence. The court explained its decision by noting that “[t]o give him credit for the 127 days in both counties would bestow upon him impermissible double credit. R[ule] 3:21-8 was never so intended.” Id. at 585 , 383 A.2d 138 .

Likewise, the fact pattern posed by defendant Rose is not unlike the far more complicated scenario addressed in State v. De Rosa, 332 N.J.Super. 426 , 753 A.2d 1164 (App.Div.2000). There, the appellate panel, faced with numerous charges that resulted in convictions arising from both guilty pleas and jury trials, carefully analyzed the basis on which defendant had been incarcerated during a lengthy period of time, in order to determine which periods were eligible for jail credit against which eventual sentences and which periods of incarceration should instead result in an award of gap time. Id. at 429-31 , 753 A.2d 1164 . As complicated as that analysis was, the court remained faithful to the essential purpose and operation of Rule 3:21-8.

*56 To be sure, there has always been room in the analysis of the Rule for the possibility that unusual circumstances might provide a ground for the award of jail credits even though the strict operation of the Rule as traditionally understood would not support it. See State v. Grate, 311 N.J.Super. 456, 459 , 710 A.2d 554 (App.Div.1998) (agreeing with Law Division’s reasoning that “defendant’s incarceration, even if not directly a consequence of the arrest in this case, was nevertheless fairly attributable to the indictment on which he was eventually sentenced”). Similarly, there has always been a recognition that unfair tactics by a prosecutor that were designed to maximize time to be served could support a different interpretation of the Rule’s operation, see Carreker, supra, 172 N.J. at 105 , 796 A.2d 847 , although we have not had occasion to so apply it. Absent such unusual and compelling circumstances, however, neither we nor our appellate courts have varied from interpreting the Rule to limit the award of jail credits to time that can be directly attributed to a particular offense.

These numerous opinions, notably, post-dated the adoption of our Code of Criminal Justice and, therefore, proceeded in full awareness of the impact of our interpretation of the Rule on overall sentencing consequences. Even so, the majority’s approach springs from a new-found belief that there is something unfair about the way the Rule and the gap time statute operate when an offender is subject to a sentence pursuant to the No Early Release Act (NERA), N.J.S.A. 20:43-7.2, and that it is of sufficient magnitude that it must now be addressed through a rather radical and unprecedented change in the way in which jail credits are awarded. Indeed, although “adher[ing] to Richardson [v. Nickolopoulos, 110 N.J. 241, 254-55 , 540 A.2d 1246 (1988)], and Booker and rejecting] Hernandez’s contention that her gap-time credit should reduce her parole bar,” ante at 41, 26 A.3d at 386, the majority has simply elected to transform time that should be counted as gap time under the statute, see N.J.S.A. 2C:44-5(b)(2), into jail credit to be awarded under the Rule.

*57 It is curious, to say the least, that in making that dramatic leap, 2 the majority has chosen as its vehicle one offender for whom its pious exhortation about the “real time consequence” of a NERA sentence has no relevance. Defendant Rose, who does not face a NERA sentence, thus becomes the beneficiary of a new interpretation of the Rule that rests on no particular rationale. In reality, the majority simply no longer cares for the manner in which the gap time credit statute and Rule operate and wishes to create something more advantageous to all defendants. That the Court supports that result by pointing to what it perceives to be unfairness to offenders facing NERA sentences translates into a disregard for the Legislature’s contrary view about sentencing of those offenders. Instead of remaining faithful to the statutory framework applicable to those who have been convicted of multiple serious crimes, and who the Legislature has commanded are subject to substantial mandatory periods of parole ineligibility, the Court today confers upon them a lesser punishment.

That many offenders facing a NERA sentence will receive little reduction in the time they will actually serve through gap time is a fact. So, too, is the far more favorable treatment that they would obtain were we to apply instead the jail credit Rule to that time. But both of those realities, along with the manner in which our Rule has long calculated jail credits, are facts about which we must presume the Legislature is fully aware. See State v. Fleischman, 189 N.J. 539, 550 , 917 A.2d 722 (2007) (relying upon “established principle of statutory interpretation that the Legislature is presumed to act with knowledge of the judicial construction given *58 to predecessor or related enactments”); 2B Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction § 51:1 at 203 (7th ed.2008). Since NERA’s adoption in 1997, the Legislature has not seen the need to address the operation of the two distinct kinds of credit nor has it elected to amend the gap time statute so that it operates to reduce the parole ineligibility period required under NERA. Surely, if the impact of the various kinds of credit in the context of a NERA sentence worked in a manner inconsistent with the Legislature’s will, it would have acted to correct our long-standing application of the relevant statutes and our Rule.

The reason for the Rule’s operation is simple and straightforward; any other interpretation leads directly to either double counting or to authorizing “free crimes” because time served at any time and for any offense becomes time served toward every offense, regardless of when it was committed. Nonetheless, against this clear and easily applied understanding of the Rule, and without even a hint of the kinds of foot-dragging or game-playing or overarching unfairness that might support a limited exception, the majority today embarks upon a new approach. For no apparent reason other than a change of mind, the majority now announces that time served on any offense will count as time served on all offenses. Although the majority implies that there is something in the operation of NERA that somehow makes our traditional reading of the Rule unfair or inconsistent with the statutes governing sentencing, the rationale behind this new reading of the Rule is nothing more than an effort to minimize the time that any offender will serve.

In the end, the majority has thwarted, and not enforced as it should, the expressed will of the Legislature; it has in fact concluded that the worst offenders in our criminal justice system, those facing multiple charges stemming from multiple arrests, regardless of the order in which those offenses were committed or the reason for the offender’s continued presentence incarceration, will reap the benefit of having all of that time count against each *59 and every eventual sentence. Effectively, the majority has, at least for this category of offenders, created the circumstance in which, contrary to the clear meaning of the statute, time that the statute regards as gap time is transformed into jail credit, counting against the NERA parole ineligibility period.

There being no basis in the Rule or any of the sentencing statutes on which to make so radical a change in interpretation, and that change being contrary to the Legislature’s clear intent as expressed both in NERA and in the gap time credit statute, I respectfully dissent.

For remandment—Chief Justice RABNER and Justices LONG, LaVECCHIA, ALBIN, and STERN (temporarily assigned)—5.

For affirmance—Justices RIVERA-SOTO and HOENS—2.

Although the majority dismisses the reference to Carreker, supra, as irrelevant, see ante at 44, 26 A.3d at 388 n. 16, it makes no effort to explain how its decision is in any way consistent with the interpretation of the Rule this Court utilized in both Carreker, supra, 172 N.J. at 115 , 796 A.2d 847 , and Black, supra, 153 N.J. at 456 , 710 A.2d 428 .

In responding, the majority states that "[t]here is nothing new or extraordinary in [its] holding.” Ante at 47, 26 A.3d at 390. In its further, more direct response, however, the majority essentially concedes that its approach is an entirely new one. Both by "declin[ing] to rely” on Allen, supra, 155 N.J.Super. at 582 , 383 A.2d 138 , which the majority admits is directly on point, see ante at 49-50, 26 A.3d at 391-92, and by its remarkable observation that "[t]his appeal presents our first relevant inquiry into the meaning of Rule 3:21-8 in these circumstances,” see id. at 50, 26 A.3d at 391-92, the majority makes plain that its approach is indeed a new and dramatic departure from precedent.