NOT FOR PUBLICATION WITHOUT THE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-0397-17T3
STATE OF NEW JERSEY,
Plaintiff-Appellant/
Cross-Respondent,
v.
RAHGEAM I. JENKINS,
Defendant-Respondent/
Cross-Appellant.
____________________________
Submitted August 21, 2018 – Decided August 28, 2018
Before Judges Messano and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Indictment No.
97-05-0467.
Joseph D. Coronato, Ocean County Prosecutor,
attorney for appellant/cross-respondent
(Samuel J. Marzarella, Chief Appellate
Attorney, of counsel; Shiraz I. Deen,
Assistant Prosecutor, on the briefs).
Joseph E. Krakora, Public Defender, attorney
for respondent/cross-appellant (Lauren S.
Michaels, Assistant Deputy Public Defender, of
counsel and on the brief).
PER CURIAM
The State of New Jersey appeals from that portion of a
September 6, 2017 order awarding defendant Rahgeam Jenkins 154
days of discretionary jail credit. Defendant cross-appeals from
the refusal of the prosecutor to join in his Rule 3:21-10(b)(3)
motion for reduction of sentence. We reverse the award of
additional discretionary jail credit and affirm the denial of the
remaining aspects of defendant's motion.
We derive the following facts and complex procedural history
from the record. On April 17, 1996, defendant robbed two employees
of an auto body shop in Point Pleasant (the first robbery). Police
found a fingerprint at the scene. On June 7, 1996, defendant was
arrested for a separate robbery he committed in Dover Township on
May 29, 1996 (the second robbery). Defendant admitted the gun the
police found was his. The gun had defendant's fingerprint on it.
On November 8, 1996, defendant pled guilty and was sentenced
for the second robbery. He received 155 days of jail credit for
the time he spent in jail from June 7, 1996 to November 8, 1996.
A grand jury returned an indictment in March 1997 charging
defendant with third-degree aggravated assault on a law
enforcement officer, N.J.S.A. 2C:12-1(b)(5), involving an incident
unrelated to the two robberies. Two months later, a grand jury
returned a direct indictment charging defendant with two counts
of first-degree armed robbery, N.J.S.A. 2C:15-1, for the first
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robbery. The delay in presenting the first robbery to the grand
jury was caused, at least in part, by the time it took to complete
the fingerprint analysis.
On March 26, 1998, following a jury trial, defendant was
found guilty of both counts of armed robbery for the first robbery.
The following day he pled guilty to the third-degree assault on a
law enforcement officer. In exchange for the plea, the State
agreed to recommend the sentence not exceed four years and be
concurrent with the sentence imposed on the robbery convictions.
On June 15, 1998, pursuant to N.J.S.A. 2C:43-6, defendant was
sentenced as a second-time Graves Act offender to concurrent terms
of sixty years subject to a twenty-year parole disqualifier on
each of the robbery convictions and a concurrent four-year term
on the assault conviction. Defendant did not receive any jail
credit or gap-time on the robbery counts. Defendant appealed his
conviction and sentence. We affirmed the conviction and sentence,
but remanded for calculation of gap-time credit. State v. Jenkins,
No. A-0329-98 (App. Div. Nov. 5, 1999). The Supreme Court denied
certification. State v. Jenkins, 163 N.J. 396 (2000). On remand,
defendant received 585 days of gap-time credit for the period from
November 8, 1996 to June 15, 1998, the day of his sentencing.
Defendant then filed a petition for post-conviction relief
(PCR), which was denied on July 30, 2001. Defendant appealed. We
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affirmed, finding defendant's contentions without merit. State
v. Jenkins, No. A-6761-00 (App. Div. Nov. 22, 2002). The Supreme
Court denied certification. State v. Jenkins, 177 N.J. 573 (2003).
Defendant filed a second PCR petition on October 8, 2003. We
affirmed the denial of the second PCR petition as procedurally
barred under Rule 3:22-5. State v. Jenkins, No. A-2115-03 (App.
Div. Oct. 29, 2004). The Supreme Court denied certification.
State v. Jenkins, 182 N.J. 628 (2005).
On December 16, 2004, defendant moved to correct an illegal
sentence. We affirmed the denial of the motion finding defendant's
reliance on State v. Franklin, 184 N.J. 516, 540 (2005), misplaced
since Franklin was given only pipeline retroactivity. State v.
Jenkins, No. A-3620-05 (App. Div. June 13, 2008) (slip op. at 2).
We also found that even if Franklin applied, defendant's argument
would fail. Id. at 3. The Supreme Court denied certification.
State v. Jenkins, 202 N.J. 348 (2010).
On September 16, 2010, defendant filed a petition for a writ
of habeas corpus in federal court. Of the fourteen claims made
by defendant, three pertained to his sentence. The petition was
denied for lack of merit by Judge Mary L. Cooper on June 11, 2014.
On September 19, 2016, defendant moved, again, to correct an
illegal sentence. In his pro se brief, defendant argued: (1) his
conviction was unconstitutional because the indictment lacked
4 A-0397-17T3
specificity and the verdict was rendered without the jury answering
an interrogatory; (2) the conviction violated the rule of lenity;
and (3) the trial court erred by failing to conduct a hearing
pursuant to N.J.S.A. 2C:44-6(e).1
Defendant was appointed counsel who submitted a supplemental
letter brief. Through counsel, defendant contended he was entitled
to discretionary jail credit from June 7, 1996 to November 7,
1996, the time defendant spent in jail pending the outcome of the
charges pertaining to the second robbery (Ind. No. 96-08-0743).
Defendant argued that if he had been charged with the first robbery
when it happened on April 17, 1996, or any time before June 7,
1996, he would have been entitled to jail credit for that time
period. However, because he was not charged with the first robbery
until May 13, 1997, after he had already been charged, pled guilty,
and sentenced for the second robbery, he did not receive any jail
credit on the first robbery from June 7, 1996 to November 7, 1996.
Relying on State v. Grate, 311 N.J. Super. 456, 458 (App.
Div. 1998), defendant argued that under principles of fundamental
fairness, he should receive discretionary jail credit for that
1
Defendant did not brief or argue these issues in his cross-
appeal. We deem them waived or abandoned. See Pressler &
Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2018)
(citing Gormley v. Wood El, 218 N.J. 72, 95 n.8 (2014); Dep't of
Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 505 n.2 (App.
Div. 2015)).
5 A-0397-17T3
time period. The prosecutor did not join in the motion. Over the
State's vehement objection, the motion judge awarded defendant 154
days discretionary jail credit.
In his oral decision, the motion judge noted defendant was
represented by an attorney at the trial level who was later
disbarred. The judge emphasized defendant was not charged with
the first robbery until approximately one year after it occurred
even though "the State possessed all of the requirements and all
of the facts" to charge and prosecute him for the first robbery.
During the time period in question defendant was incarcerated due
to the subsequent robbery arrest. The judge also noted defendant
"has made some very significant strides in redeeming himself and
becoming someone that can go out and lead a fruitful life" after
he is released. Considering the totality of the circumstances,
the motion judge awarded discretionary jail credits to defendant,
concluding it would be a manifest injustice for defendant not to
receive the jail credit for that time period.
The remainder of defendant's motion was denied. The judge
stayed the award of jail credit pending appeal. This appeal and
cross-appeal followed.
The State argues defendant was not entitled to any jail credit
on the first robbery. In his cross-appeal, defendant argues the
6 A-0397-17T3
prosecutor abused his discretion in refusing to join in defendant's
sentence reduction motion.
We listed the appeal originally on our Excessive Sentence
Oral Argument (ESOA) calendar. However, shortly before the
scheduled argument date, defense counsel requested the appeal be
transferred to the plenary calendar due to the complexity of the
issues raised in the cross-appeal and the corresponding need to
set forth the factual circumstances of the case. We transferred
the appeal to the plenary calendar and ordered the parties to
brief the issues.
Defendant contends the motion judge properly awarded
discretionary jail credits based on considerations of fairness,
justice, fair dealings, and the general equities of the situation,
citing numerous opinions recognizing discretionary jail credits.
We disagree.
Discretionary jail credits are not based on statute or court
rule. Rather, the award of such credits "'is at best
discretionary, based upon general equities of the situation, and
is not a matter of due process' or right." State v. Hill, 208
N.J. Super. 492, 495 (App. Div. 1986) (quoting State v. Marnin,
108 N.J. Super. 442, 445 (App. Div. 1970)); see also State v.
Hemphill, 391 N.J. Super. 67, 70 (App. Div. 2007) (holding that
even where jail credit is not mandated by Rule 3:21-8,
7 A-0397-17T3
discretionary jail credit "may nevertheless be awarded based on
considerations of fairness, justice and fair dealings").
Defendant acknowledges Rule 3:21-8 did not mandate the jail
credit he was awarded. Following the award of appropriate gap-
time credits, defendant's sentence was not in excess of or
otherwise not in accordance with the sentence authorized by law
or otherwise illegal. See State v. Murray, 162 N.J. 240, 246-247
(2000) (narrowly defining illegal sentences as "sentences that
exceed the penalties authorized by statue for a specific offense"
and sentences "not imposed in accordance with law").
The award of discretionary jail credits constitutes a change
in sentence. See Breeden v. N.J. Dep't of Corr., 132 N.J. 457,
470 (1993). Thus, a prisoner claiming such credits should apply
"to the sentencing court pursuant to the procedures set forth in
Rule 3:10 (governing reduction of, or change in, sentence)" for
resentencing. Ibid. Rule 3:21-10 permits a reduction or change
in sentence in limited circumstances subject to strict time
constraints. Subsection (a) contains a sixty-day time limitation
for filing and a seventy-five-day requirement for disposition of
applications to reduce or change a sentence:
(a) Time. Except as provided in
paragraph (b) hereof, a motion to reduce or
change a sentence shall be filed not later
than 60 days after the date of the judgment
of conviction. The court may reduce or change
8 A-0397-17T3
a sentence, either on motion or on its own
initiative, by order entered within 75 days
from the date of the judgment of conviction
and not thereafter.
[R. 3:21-10(a).]
The only exceptions to the above rule are enumerated in subsection
(b). Pertinent to this appeal is subsection (b)(3), which
provides:
(b) Exceptions. A motion may be filed
and an order may be entered at any time . . .
(3) changing a sentence for good cause shown
upon the joint application of the defendant
and prosecuting attorney . . . .
Motions to correct an illegal sentence may be filed at any
time. R. 3:21-10(b)(5); State v. Zuber, 227 N.J. 422, 437 (2017).
"An 'illegal sentence' is one 'not imposed in accordance with the
law.'" Zuber, 227 N.J. at 437 (quoting State v. Acevedo, 205 N.J.
40, 45 (2011)). Defendant does not claim his sentence was illegal.
Because defendant's sentence was not illegal, he was required to
file the motion "not later than [sixty] days after the date of the
judgment of conviction" unless the prosecutor joined in the motion.
R. 3:21-10(a) and (b). The prosecutor did not join in the motion.
Defendant argues his application should be considered timely
under subsection (b)(3), claiming the prosecutor abused his
discretion in refusing to join in his motion, contending the
9 A-0397-17T3
decision was arbitrary and capricious. We are unpersuaded by this
argument.
"[D]efendant may not just challenge the prosecutor's decision
in a conclusory manner; he must make a showing of arbitrariness
constituting an unconstitutional discrimination or denial of equal
protection constituting a 'manifest injustice.'" State v.
Alvarez, 246 N.J. Super. 137, 148 (App. Div. 1991). He has not
met that burden. Accordingly, he did not qualify for relief under
Rule 3:21-10(b)(3).
"Ordinarily, the time limitations of [Rule] 3:21-10(a) must
be strictly enforced," State v. E.R., 273 N.J. Super. 262, 266-67
(App. Div. 1994) (citations omitted), and "cannot be enlarged,"
State v. Tumminello, 70 N.J. 187, 192 n.1 (1976) (citing R. 1:3-
4(c)); see also Pressler & Verniero, cmt. 1 on R. 3:21-10(a) ("The
time period provided by the rule is non-relaxable pursuant to R.
1:3-4(c)." (citations omitted)).
Defendant filed his motion on September 16, 2016, more than
eighteen years after the date of the judgment of conviction, and
more than sixteen years after the judgment of conviction was
modified to award gap time. Defendant filed numerous other
applications during the intervening years. He has not offered any
explanation for this inordinate delay.
10 A-0397-17T3
Because the prosecutor did not join in the application and
defendant did not otherwise qualify for relief under subsection
(b), the motion was time-barred. Consequently, the motion judge
had "no authority under the rule to enter an order reducing or
changing the sentence." Tumminello, 70 N.J. 187, 192 n.1. Thus,
the motion court erred by awarding the discretionary jail credits.
We find insufficient merit in defendant's argument to warrant
further discussion. R. 2:11-3(e)(2).
In sum, we reverse the 154-day discretionary jail credit
award. The trial court shall enter an amended judgment of
conviction consistent with this opinion. We affirm the denial of
the remaining aspects of defendant's motion.
Reversed in part and affirmed in part.
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