RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-5980-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
L.A.G.,
Defendant-Appellant.
_________________________
Submitted October 15, 2019 – Decided October 22, 2019
Before Judges Geiger and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 15-08-2405.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven J. Sloan, Designated Counsel, on the
brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Kevin Jay Hein, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant L.A.G. appeals from a Law Division order denying his petition
for post-conviction relief (PCR) without an evidentiary hearing. We affirm
substantially for the reasons expressed by Judge Samuel D. Natal in his
comprehensive written opinion.
Defendant is the father of a minor daughter, K.G. In April 2013, defendant
was sentenced to special Drug Court probation under Indictment No. 12-06-
1513. During the first year of his probationary term, K.G.'s mother learned that
K.G. had contracted a sexually transmitted disease. K.G. alleged she had been
sexually assaulted by defendant on two separate occasions in June or July 2013.
An investigation led to defendant being charged with the sexual assault.
A Camden County Grand Jury returned Indictment No. 15-08-2405,
charging defendant with two counts of first-degree aggravated sexual assault,
N.J.S.A. 2C:14-2(a)(2)(a) (counts one and seven); first-degree aggravated
sexual assault, N.J.S.A. 2C:14-2(a)(7) (count eight); second-degree sexual
assault, N.J.S.A. 2C:14-2(c)(1) (count two); two counts of third-degree
aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (counts three and five);
two counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b)
(counts four and six); second-degree endangering the welfare of a child, N.J.S.A.
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2C:24-4(a) (count nine); and third-degree tampering with witnesses, N.J.S.A.
2C:28-5(a)(1) (count ten).
Defendant was also charged with violation of probation (VOP) as a result
of the new charges. On February 4, 2014, defendant was sentenced on the VOP
to a four-year prison term subject to sixteen months of parole ineligibility. He
completed that sentence on May 25, 2015, but remained incarcerated on the
pending charges under Indictment No. 15-08-2405 (the sexual assault charges).
Defendant entered into a negotiated plea agreement on the sexual assault
charges on March 7, 2016. In exchange for defendant's guilty plea to second-
degree sexual assault (count two), the State agreed to recommend a five -year
prison term subject to an eighty-five percent period of parole ineligibility under
the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and dismiss the
remaining charges. The plea form stated defendant would receive "all lawful
jail credit from December 13, 2013." At the plea hearing, trial counsel stated:
With regard to jail credit, [Defendant] has been
in the Camden County Jail since December 13th of
2013. . . . [Defendant] was in Drug Court, and they
. . . violated him out of Drug Court and sent him to
prison.
So there was a brief period of time where he was
serving a prison sentence as a result of [a] Drug Court
violation, which I think was for this new charge really.
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And so, . . . there's going to be a gap in his jail credit
which we'll address at sentencing.
So, if the parties are amenable at sentencing, he
would get credit from that date. If not, then there's
going to be an issue with regard to that little gap when
he was away.
Trial counsel then addressed defendant's understanding of this issue, stating:
But I wanted to make clear before we . . . did anything
else, so that [defendant] understands on the record that.
And I explained to him that he wouldn't necessarily be
entitled to that credit even though . . . the detainer was
lodged, because he was serving a sentence for a period
of time. . . . I reviewed everything with him. He
understands it.
Following defendant's testimony at the plea hearing, the trial court accepted
defendant's guilty plea to count two.
The presentence report stated defendant was entitled to 393 days of jail
credit but no gap-time credit. At the sentencing hearing on April 29, 2016, trial
counsel stated that both he and defendant had reviewed the presentence report
and there were "no substantive modifications to be made." The amount of jail
credit was not discussed. Defendant chose not to allocute.
Defendant was sentenced on count two in accordance with the plea
agreement to a five-year NERA term, Parole Supervision for Life, registration
under Meghan's Law, compliance with the sex offender restraining order
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requirements of Nicole's Law, and appropriate fines and penalties. He was
awarded 393 days of jail credits for the periods from December 13, 2013 to
February 4, 2014 and May 26, 2015 to April 28, 2016. The other nine counts
were dismissed.
Defendant filed an untimely direct appeal from his sentence. We
dismissed the appeal "without prejudice to defendant's ability to move before
the trial court to correct an allegedly illegal sentence." Defendant then filed a
pro se PCR petition. Counsel was appointed to represent him.
In an amended PCR petition, defendant claimed trial counsel was
ineffective for failing to ensure defendant was awarded all of the jail credits that
were part of the negotiated plea agreement. Defendant claimed he was promised
jail credits for his time imprisoned on the VOP and was entitled to an additional
474 days of jail credit. This additional credit would result in a max-out date of
March 13, 2018 on the sexual assault conviction, rather than a max-out date of
July 1, 2019. He claimed the promised jail credit "was a significant factor in his
decision to accept the [S]tate's plea offer and if not for the award of jail credits
he would not have accepted the plea deal."
Defendant contended he was entitled to jail credits from February 5, 2014,
the date he was sent to prison on the VOP sentence, to May 26, 2015, the date
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he completed the VOP sentence. He requested an evidentiary hearing.
Defendant did not seek to vacate his plea or his conviction.
At oral argument before the PCR court, the State conceded defendant was
entitled to an award of gap-time credits for the days defendant served on his
VOP sentence. The PCR court issued a July 30, 2018 order and written opinion
denying PCR without an evidentiary hearing but awarding gap-time credits from
February 5, 2014 to May 25, 2015. The court found defendant was not entitled
to an evidentiary hearing because he had not established a prima facie case of
ineffective assistance of counsel. 1 The court noted trial counsel advised PCR
counsel that he had no recollection of defendant not receiving proper jail credits.
PCR counsel argued trial counsel should testify because "he possibly could
remember something." The court characterized this as "an attempt at fishing in
hope of a good result. Not a proper reason for an evidentiary hearing."
The court concluded that "[a]ll the facts necessary for the [c]ourt to make
its determination are contained in the [c]ourt record." The court labeled
defendant's claim that trial counsel promised him he would receive all jail credits
1
PCR counsel acknowledged that "everything's right in the transcript that
[defendant] needs to get his relief."
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from December 13, 2013, as "clearly mistaken or wishful thinking" and
"contrary" to the plea form and transcript of the plea hearing.
The court explained that a defendant receives jail credit for any time spent
in custody that is "directly attributable to the particular offense giving rise to the
initial incarceration" "between arrest and the imposition of sentence," citing
Rule 3:21-8. A defendant receives gap-time credit "when the defendant has been
sentenced to a term of imprisonment [and] is sentenced subsequently to another
term; and both offenses occurred prior to imposition of the first sentence," citing
N.J.S.A. 2C:44-5(b). Gap-time credits "are applied to the back end of the
sentence, but do not reduce a parole ineligibility term." The court "does not
have the discretion to convert [g]ap-[t]ime into jail credits," citing State v.
Hernandez, 208 N.J. 24, 50 (2011), overruled in part on other grounds, State v.
C.H., 228 N.J. 111, 123 (2017).
The PCR court concluded defendant received all of the jail credit he was
entitled to, but failed to receive gap-time credit from February 5, 2014 to May
25, 2015, which the State conceded. With that award of gap-time, defendant
suffered no prejudice.
The court rejected defendant's "bald" assertion that he would not have
accepted the plea offer if the award of the disputed jail credits was not made part
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of the deal. The court noted defendant was facing three counts of first-degree
aggravated sexual assault. "The [facts] of the case were particularly egregious.
. . . The probability of a conviction was great." Rejecting the plea offer would
have exposed defendant to a ten-to-twenty-year term of imprisonment upon
conviction for first-degree aggravated sexual assault. The court found defendant
"ha[d] not demonstrated that a decision to reject the plea would have been
rational under the circumstances." In addition, the court found defendant's
allegation, that the prosecutor had agreed to award him jail credit for the time
period he was serving his VOP sentence, was not credible.
The PCR court denied the petition, finding defendant failed "to
demonstrate that his [trial] counsel was deficient or that but for counsel's advice,
he would not have pled guilty and would have insisted to proceed to trial on t he
ten charges under the indictment." The court awarded gap-time credit from
February 5, 2014 to May 25, 2015. This appeal followed.
On appeal, defendant argues:
POINT I
DEFENDANT IS ENTITLED TO AN ADDITIONAL
474 DAYS OF JAIL CREDITS PURSUANT TO RULE
3:21-8.
POINT II
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THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING ON DEFENDANT'S
CLAIM HE WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL OR THIS COURT
MUST FIND THAT DEFENDANT RECEIVED
INEFFECTIVE ASSISTANCE OF COUNSEL
REGARDING THE ADDITIONAL 474 DAYS OF
JAIL CREDITS.
Based on our review of the record and the applicable legal principles, we
affirm substantially for the reasons stated by Judge Natal in his comprehensive
written opinion. We add the following comments.
We will affirm the PCR court if sufficient credible evidence in the record
supports the judge's findings. State v. Nash, 212 N.J. 518, 540 (2013).
However, we review a PCR court’s interpretation of the law de novo. State v.
Harris, 181 N.J. 391, 416 (2004). The defendant carries the burden to establish
the right to relief by a preponderance of credible evidence. State v. Echols, 199
N.J. 344, 357 (2009).
In order to prevail on a claim of ineffective assistance of counsel, a
defendant must meet a two-prong test. Strickland v. Washington, 466 U.S. 668
(1984); State v. Fritz, 105 N.J. 42, 58 (1987). First, the defendant must show
counsel "made errors so serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at
687. Second, the defendant must show the defect in performance prejudiced his
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or her rights to a fair trial such that there exists "reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding would have been
different." Id. at 694.
We apply a similar standard in the context of guilty pleas. To prove
ineffective assistance of counsel, the defendant must show "(i) counsel's
assistance was not 'within the range of competence demanded of attorneys in
criminal cases'; and (ii) 'that there is a reasonable probability that, but for
counsel's errors, [the defendant] would not have pled guilty and would have
insisted on going to trial.'" State v. Nuñez–Valdéz, 200 N.J. 129, 139 (2009)
(alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).
The award of gap-time and jail credits raises issues of law that we review
de novo. See State v. L.H., 206 N.J. 528, 543 (2011) (applying de novo standard
in gap-time credit case); Hernandez, 208 N.J. at 48–49 ("there is no room for
discretion in either granting or denying [jail] credits").
A defendant is entitled to jail credits "for any time served in custody . . .
between arrest and the imposition of sentence." R. 3:21-8(a). Jail credits "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 defendant was held in
custody for that offense prior to sentencing." Hernandez, 208 N.J. at 37.
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"[O]nce the first sentence is imposed, a defendant awaiting imposition of
another sentence accrues no more jail credit under Rule 3:21-8." Hernandez,
208 N.J. at 50.
Conversely, N.J.S.A. 2C:44-5(b) governs gap-time credit. Hernandez,
208 N.J. at 38. This statute "awards a defendant who is given two separate
sentences on two different dates credit toward the second sentence for the time
spent in custody since he or she began serving the first sentence." Ibid. A
defendant is entitled to gap-time credit when "(1) the defendant has been
sentenced previously to a term of imprisonment[;] (2) the defendant is sentenced
subsequently to another term[;] and (3) both offenses occurred prior to the
imposition of the first sentence." Ibid. (alterations in original) (quoting State v.
Franklin, 175 N.J. 456, 462 (2003)). "If the defendant meets those requirements,
the sentencing court is obligated to award gap-time credits." Ibid. "Unlike jail
credits, gap-time credits are applied to the 'back end' of a sentence." Ibid.
(quoting Booker v. N.J. State Parole Bd., 136 N.J. 257, 260 (1994)). Gap-time
credits do not affect a period of parole ineligibility but may otherwise affect the
actual date of parole eligibility. Booker, 136 N.J. at 263-65. Thus, gap-time
credit will not reduce the period of parole ineligibility imposed by NERA.
Hernandez, 208 N.J. at 41.
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Judge Natal correctly applied these principles. The record fully supports
his findings and conclusions. Defendant did not establish a prima facie case of
ineffective assistance of counsel. Accordingly, an evidentiary hearing was not
necessary or warranted. Defendant ultimately received all of the lawful jail
credits and gap-time credits he was entitled to, and no further relief is warranted.
Affirmed.
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STATE OF NEW JERSEY VS. L.A.G. (15-08-2405, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)
Combined Opinion