NOT FOR PUBLICATION WITHOUT THE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-3658-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILLIAM T. STELTZ,
Defendant-Appellant.
____________________________
Submitted July 11, 2017 – Decided November 6, 2017
Before Judges Nugent and Accurso.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment Nos.
08-09-0207 and 09-06-2098.
Joseph E. Krakora, Public Defender, attorney
for appellant (Michele A. Adubato,
Designated Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Emily Anderson,
Deputy Attorney General, of counsel and on
the brief).
PER CURIAM
Defendant William Steltz appeals from a January 22, 2016
order denying his petition for post-conviction relief but
amending his judgment of conviction to reflect the jail credits
negotiated as part of his 2009 plea. He contends the PCR court
erred in finding his claim – that the judgments of conviction,
in addition to not accurately reflecting his jail credits, did
not accurately reflect the minimum term the judge imposed at
sentencing – was barred by R. 3:22-5. He also claims he was
deprived of the effective assistance of counsel and was entitled
to a hearing on his claims. The State, although opposing
defendant's petition seeking resentencing in the Law Division,
now contends "there are two [different] issues with defendant's
sentence that require a remand."
Because we previously decided the identical issues
defendant raised in his petition regarding the length of his
minimum term and calculation of jail credits, we affirm,
pursuant to R. 3:22-5, the decision to deny defendant's petition
but reverse amendment of the judgments of conviction to
"correct" the calculation of jail credits. We further remand to
correct an illegal sentence on counts four and six of State
Grand Jury Indictment No. 08-09-0207.
Defendant pled guilty to four counts of drug and weapon
charges contained in two separate indictments in exchange for
the State's recommendation of an aggregate sentence of twenty
years with ten years of parole ineligibility and the dismissal
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of the remaining charges.1 Specifically, defendant pled guilty
to count four, first-degree distribution of cocaine, N.J.S.A.
2C:35-5b(1) and 2C:35-5c; count six, first-degree possession of
cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and
N.J.S.A. 2C:35-5b(1); and count thirteen, second-degree certain
persons not to have weapons, N.J.S.A. 2C:39-7b(1) of State Grand
Jury Indictment No. 08-09-0207 and to count nine, first-degree
distribution of a controlled dangerous substance, N.J.S.A.
2C:35-5a(1) and 2C:35-5b(1) of Camden County Indictment No.
09-06-2098.
At sentencing, defendant's counsel stated:
I understand what the aggregate
sentence is under the agreement. I will
keep my comments very short, really[.]
[B]ased on the fact that there are concerns
here that Mr. Steltz is going to help the
State or County in any further prosecutions
in this matter[,] [w]e'd ask that this
matter be treated as a cap plea and he be
sentenced at the minimum lower cap of 20, do
10.
With that we would submit.
The judge pronounced sentence as follows:
1
The weapon defendant pled guilty to possessing on December 11,
2007, a date defendant admitted he was in possession of more
than five ounces of cocaine with intent to distribute, was an
assault rifle. During the plea colloquy, the judge explained to
defendant that his exposure on the charges to which he pled
guilty was seventy years, thirty-five without parole, leaving
aside that defendant was extended-term eligible.
3 A-3658-15T2
These are very serious charges, we
know. The . . . three first degree
possession with intent charges and one
second degree certain persons offense as a
result of a weapon. So I'm going to give
you somewhat of a break in consideration,
the fact that you took responsibility.
These cases would have been significant
prosecutions by the State. They would have
had to expend many resources in prosecution,
two separate and distinct cases. It would
have been protracted trials.
As a result of your taking
responsibility early on, again, I'm going to
give you the benefit of somewhat of a
reduction from what I'll consider to be a
cap. Whenever the State makes a
recommendation, whether or not they infer it
or say it, I consider that to be a cap.
Under State v. Warren,2 you always have
a right to argue for something less and I'll
give you a somewhat lesser sentence,
although not significantly. . . .
Under State Grand Jury Indictment
Number 207, under Counts Four and Six,
you'll receive, instead of the 15-year
sentence, five without parole, a 14-year
sentence, three without parole. They will
run concurrent with one another.
Under Indictment 2098, Count Nine,
you'll receive a 10-year sentence, five
years without parole. That will also run
concurrent to Counts Four and Six of 207.
And you'll receive a consecutive
sentence under Count Thirteen. That's the
certain person offense. Five years, five
without parole.
2
State v. Warren, 115 N.J. 433 (1989).
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The aggregate sentence is a 19-year
sentence, eight years without parole.
The judgments of conviction reflected the sentence imposed on
each count of both indictments and included the statement that
the "aggregate total sentence is nineteen (19) years, eight (8)
years without parole."
Two months later, the Parole Board wrote to the sentencing
judge, with a copy to defendant, asking for clarification of the
sentence. The Board noted that running the sentence on count
nine of the Camden County Indictment (ten years, five-year
mandatory minimum) concurrent with the aggregate sentence
imposed on counts four and six of the State Grand Jury
indictment (fourteen years, three-year mandatory minimum) while
running count thirteen of that indictment (five years, five-year
mandatory minimum), consecutively would result in an aggregate
sentence of nineteen years, ten-year mandatory minimum, not
nineteen years, eight-year mandatory minimum as stated in the
judgments of conviction. In response to that letter, the
sentencing judge amended the statement of reasons for both
judgments of conviction to reflect an aggregate sentence on both
indictments of nineteen years, ten years without parole. See
State v. Matlack, 49 N.J. 491, 502, cert. denied, 389 U.S. 1009,
88 S. Ct. 572, 19 L. Ed. 2d 606 (1967) (permitting correction of
5 A-3658-15T2
"inadvertent clerical-type errors" so the defendant receives the
sentence the trial court intended).
Several months later, defendant moved to correct the
judgments of conviction. Defendant claimed the sentence
actually imposed was an aggregate nineteen years with eight
years' parole ineligibility, not the nineteen years with ten
years' parole ineligibility as reflected in the amended
judgments of conviction. Defendant also complained his jail
credits were improperly calculated. He claimed he only received
jail credits through February 12, 2009, the date of his prior
sentencing on a Gloucester County indictment, and not through
January 8, 2010, his sentencing on the two indictments at issue
here. The sentencing judge denied his request, noting that
N.J.S.A. 2C:39-4.1 mandated a sentence of five years, five years
to be served without parole, "to run consecutive to any other
sentence imposed at the same time."
We affirmed in an unreported opinion. State v. Steltz, No.
A-2461-11 (App. Div. March 12, 2013). We said "[t]he two JOCs
and accompanying statements of reasons clearly establish that
the five-year period of parole ineligibility for I-2098 must run
consecutive to the five-year period of parole ineligibility for
the weapons charge under I-207." Id. at 4. As to the jail
credits, we relied on State v. Hemphill, 391 N.J. Super. 67, 71
6 A-3658-15T2
(App. Div.), certif. denied, 192 N.J. 68 (2007), holding that
jail credits are "impermissible if the confinement is due to
service of a prior-imposed sentence [on] another charge." See
Steltz, supra, slip op. at 4-5.
Defendant subsequently filed two more motions seeking
correction of his sentence in the trial court. Those motions
were denied by different judges in 2013 and 2014, presumably
based on the prior adjudication.
In January 2015, defendant filed a pro se petition for
post-conviction relief claiming ineffective assistance of
counsel in connection with his sentence. Defendant was
subsequently assigned counsel who filed an amended petition on
his behalf. In his amended petition, he again sought correction
of the judgments of conviction to reflect an aggregate sentence
of nineteen years with eight years of parole ineligibility and
additional jail credits through January 7, 2010, the day before
his sentencing on those convictions. He contended his counsel
was ineffective because he failed to ensure he received all the
jail credits negotiated and for failing to file an appeal when
the judgments were incorrectly amended to increase his mandatory
minimum term. He also claimed counsel was ineffective for
failing to advise that a consecutive sentence was not mandated
for the crimes to which defendant pled guilty.
7 A-3658-15T2
After hearing argument on the petition, the judge partially
granted and partially denied defendant relief. The judge found
defendant was not wrongly denied the assistance of counsel on
his prior motions or appeal to this court. The judge further
noted that this court referred defendant's request for counsel
to the Office of the Public Defender, which declined
representation, a decision we did not disturb. Cf. State v.
A.L., 440 N.J. Super. 400, 418-19 (App. Div. 2015) (noting
jurisdiction of that issue in the Appellate Division pursuant to
R. 2:9-1(a)).
The judge further determined based on a review of the plea
colloquy and the sentencing transcript that the sentencing judge
intended to and did sentence defendant to an aggregate term of
nineteen years, ten to be served without parole. Finding
defendant had already presented his claim regarding his parole
ineligibility term to this court, which rejected it, the judge
deemed it procedurally barred pursuant to R. 3:22-5 (prior
adjudication on the merits of any ground for relief is
conclusive).
The judge, however, took a different view of the
calculation of defendant's jail credits. Stating she was "not
quite sure how the issue of jail credits has not been addressed
or fixed," the judge found the State and defendant's counsel
8 A-3658-15T2
"agreed that the defendant would get jail credits starting –
well, aggregate, starting on June 26th, 2008, up until the date
of sentencing, which was January 8th, 2010." "[B]ased upon the
fact that the record is clear," the judge amended the judgments
of conviction to reflect "561 days negotiated and concurrent
jail credit."
On appeal, defendant contends he was entitled to an
evidentiary hearing and that he was denied the effective
assistance of counsel. He further argues his claims were not
barred by R. 3:22-5 because he did not raise ineffective
assistance in the prior proceeding.
The State contends defendant's arguments are without merit.
The State does not address the court's grant of the additional
jail credits but insists the matter must be remanded for
resentencing because the judge ran the conviction on count nine
of Camden County Indictment No. 09-06-2098 (first-degree
distribution) concurrent to counts four (first-degree
distribution) and six (first-degree possession with intent to
distribute) of State Grand Jury Indictment No. 08-09-0207, but
consecutive to count thirteen (certain persons offense) of the
same indictment, which it contends violates the "basic tenet" of
State v. Rogers, 124 N.J. 113 (1991). The State further argues
the sentence on counts four and six is illegal because the
9 A-3658-15T2
three-year periods of parole ineligibility on the concurrent
fourteen-year terms violate N.J.S.A. 2C:35-5b(1).
We think it obvious that defendant's arguments as to his
sentence, both the parole ineligibility term and the calculation
of jail credits, are plainly barred by R. 3:22-5. Defendant
made a motion to the sentencing judge to correct his sentence
raising the identical two issues. When the sentencing judge
denied his motion, he appealed to this court. Having considered
defendant's arguments, the sentencing transcript and the
judgments of conviction, we concluded "the record fully supports
the judge's determination that the total parole ineligibility
for both indictments was ten years." Steltz, supra, No. A-2461-
11, slip op. at 4. As to the calculation of jail credits, we
noted "the computation did not include any days after defendant
began serving his Gloucester County sentence on other charges.
The current record contains no support for defendant's claim
that the agreed upon jail time should be changed to include that
period." Ibid.
Our prior adjudication of those two issues on the merits in
defendant's prior appeal is dispositive and bars defendant's
claim for post-conviction relief. See State v. Marshall, 173
N.J. 343, 350-53 (2002). Although the trial court held that R.
3:22-5 barred its consideration of defendant's claim as to his
10 A-3658-15T2
parole-ineligibility term, it failed to apply the Rule to
defendant's claim as to jail credits, although it too was
identical to the claim we resolved.
Jail credits are not discretionary. State v. Hernandez,
208 N.J. 24, 48-49 (2011), mod. on other grounds, State v. C.H.,
228 N.J. 111 (2017). "After the first sentence is imposed . . .
a defendant is not entitled to jail credits for time spent in
custody when later sentenced on other pending charges." State
v. Rippy, 431 N.J. Super. 338, 349 (App. Div. 2013), certif.
denied, 217 N.J. 284 (2014). As we previously held, defendant
is not entitled to jail credits for the period following his
sentencing on February 12, 2009, on the Gloucester County
indictment and January 8, 2010, his sentencing on the two
indictments at issue here. We thus reverse the order amending
the judgments of conviction to award jail credits for that
period.
We find no support for the State's argument that running
the sentence on the certain persons offense consecutive to the
three first-degree drug charges violated Rogers, because one of
those drug charges was contained in a separate indictment.
Rogers prohibits the imposition of "partially-concurrent and
partially-consecutive sentences," e.g., "two 30-year prison
terms, the second to be concurrent with the first for a term of
11 A-3658-15T2
15 years and consecutive to the first for a term of 15 years,"
resulting in an aggregate sentence of 45 years. Rogers, supra,
124 N.J. at 114, 118. The Supreme Court prohibited such
sentences, even though they are not expressly forbidden by the
Code of Criminal Justice, because their variability would
severely undermine the goal of greater uniformity in sentencing.
Ibid.
The State offers no case to support its assertion that
running a sentence on two counts of a multi-count indictment
concurrent to one another and concurrent to the sentence on the
sole count of a separate indictment, but making the remaining
count consecutive to all three is prohibited by Rogers. Such a
sentence would not appear to pose the problems of wide
variability that concerned the Rogers Court. Indeed, the Court
has recently made clear in the context of awarding jail credits
on consecutive sentences under two different indictments that
"[t]he appropriate course of action is to view the separate
sentences together and apply jail credit to the front end of the
aggregate sentence." C.H., supra, 228 N.J. at 121-22. Although
not squarely on point, it does undermine the State's argument
that the aggregate sentence imposed here violated the Code. We
find the State's argument based on Rogers no basis to remand for
a new sentencing.
12 A-3658-15T2
The State also contends, however, apparently for the first
time, that the sentence imposed is illegal because the three-
year ineligibility terms imposed on counts four and six of State
Grand Jury Indictment No. 08-09-0207 were less than one-third of
the base terms of fourteen years, a violation of N.J.S.A. 2C:35-
5b(1). We agree defendant's sentence as to those counts is
illegal because it "include[s] a disposition that is not
authorized by our criminal code." See State v. Schubert, 212
N.J. 295, 308 (2012).
Because an illegal sentence "may be corrected at any time
before it is completed[,]" id. at 309 (quoting State v. Murray,
162 N.J. 240, 247 (2000)), and as defendant can have no
expectation of finality in the sentence he has continued to
challenge, see State v. Rodriguez, 97 N.J. 263, 271 (1984), we
remand for resentencing in accordance with N.J.S.A. 2C:35-5b(1).
See State v. Baker, 270 N.J. Super. 55, 77 (App. Div.) (holding
a court may correct an illegal sentence to impose a
legislatively-mandated period of parole ineligibility, even if
it involves an increase in the defendant's aggregate sentence),
aff'd o.b., 138 N.J. 89 (1994).
In sum, we affirm the court's denial of defendant's
petition insofar as it relates to defendant's claims as to his
parole ineligibility term; reverse the amendment of the
13 A-3658-15T2
judgments of conviction as it relates to jail credits; and
remand for resentencing on counts four and six of State Grand
Jury Indictment No. 08-09-0207 in conformity with N.J.S.A.
2C:35-5b(1), and application of reinstated jail credits in
accordance with C.H., supra, 228 N.J. at 121-22. We do not
retain jurisdiction.
Affirmed in part; reversed in part; and remanded for
resentencing in conformance with this opinion.
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