STATE OF NEW JERSEY VS. DAVID M. CLARK(13-01-0090, BURLINGTON COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-3808-14T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID M. CLARK,

Defendant-Appellant.
____________________________________________________

Argued February 8, 2016 – Decided July 29, 2016
Remanded by Supreme Court May 19, 2017
Resubmitted July 5, 2017 – Decided July 13, 2017

Before Judges Messano, Simonelli and Carroll.

On appeal from the Superior Court of New
Jersey, Law Division, Burlington County,
Indictment No. 13-01-0090.

Joseph E. Krakora, Public Defender, attorney
for appellant (Brian P. Keenan, Assistant
Deputy Public Defender, of counsel and on the
brief).

Christopher S. Porrino, Attorney General,
attorney for respondent (Carol M. Henderson,
Assistant Attorney General, of counsel and on
the brief).

PER CURIAM
 After granting the State's petition for certification, and

the cross-petition for certification filed by defendant David M.

Clark, the Supreme Court remanded this matter to us for

reconsideration in light of its holding in State v. Joe, 228 N.J.

125 (2017). State v. Clark, ___ N.J. ___ (2017). We briefly

summarize the following facts as stated in our prior opinion:

Defendant . . . was charged in a series of
complaint-warrants issued by the New Jersey
State Police (NJSP) on August 5, 2011, with
sexual crimes committed against two juvenile
victims alleged to have occurred between 2004
and 2011. On October 27, 2011, federal law
enforcement authorities filed criminal
charges against defendant, he was arrested on
November 1, and consented to an order of pre-
trial detention on November 2, 2011. With
brief exceptions as set forth below, defendant
has remained in federal custody ever since.

On January 29, 2013, the Burlington
County grand jury returned Indictment No. 13-
01-0090 (the indictment), charging defendant
with fifty-three counts of various sexual
offenses which ostensibly included some of the
same conduct that was the subject of the
federal charges. On March 12, 2013, the Law
Division issued a bench warrant, which the
parties agree acted as a detainer. Over the
ensuing months, defendant appeared in the Law
Division through the issuance of writs that
were honored by the federal authorities.

On October 28, 2013, defendant waived his
right to indictment and pled guilty in federal
court to three counts of manufacturing child
pornography, 18 U.S.C.A. § 2251(a). On
November 12, 2013, defendant pled guilty in
the Law Division to three counts of the
indictment.

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 On April 14, 2014, the federal judge
sentenced defendant to a 360-month term of
imprisonment. On November 2, 2014, defendant
was remanded to the Burlington County Jail
pursuant to the Interstate Agreement on
Detainers (IAD), and the State acknowledges
that defendant remained in county custody
thereafter until his sentencing in the Law
Division on February 27, 2015.

In accordance with defendant's plea
agreement, at sentencing, the Law Division
judge imposed an aggregate thirty-year term
of imprisonment subject to the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2,
concurrent but not coterminous with
defendant's federal sentence. . . . [Defense
counsel] . . . argued that defendant was
entitled to jail credits from his original
sentencing date, February 14 "or shortly
thereafter," "due to the difficulty of getting
him over here from the federal prison."

The Law Division judge rejected the
arguments regarding jail . . . credits,
indicating defendant was not entitled to any
under current law.

[State v. Clark, No. A-3808-14 (App. Div. July
29, 2016) (slip op. at 2-4) (footnote
omitted), certif. granted and remanded, State
v. Clark, ___ N.J. ___ (2017).]

Defendant argued he was entitled to jail credits from November 1,

2011, when he was arrested by federal authorities until April 14,

2014, when he was sentenced in federal court, and the State

contended the trial judge correctly decided defendant was not

entitled to any jail credits. Id. at 4-5.

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 Relying on State v. Hernandez, 208 N.J. 24 (2011), and the

express language of Rule 3:21-8, we rejected defendant's argument

that he accrued jail credits on his New Jersey sentence from the

moment he was taken into federal custody. Id. at 12. However,

we agreed that defendant accrued jail credits after the State

issued a bench warrant that served as a detainer and allowed the

State to exercise temporary custody over defendant. Id. at 13.

We therefore reversed defendant's judgment of conviction and

remanded for the Law Division to enter an amended judgment giving

defendant the appropriate jail credits. Id. at 14.

In Joe, the defendant was arrested on March 19, 2010, and

subsequently indicted in August 2010. 228 N.J. at 127. A bench

warrant was issued on September 24, 2010, when he failed to appear

for arraignment. Ibid. On June 21, 2011, the defendant was

arrested for unrelated weapons charges in New York and remained

in custody through sentencing on or around February 13, 2012. Id.

at 127-28. The prosecutor's office lodged a detainer pursuant to

the Interstate Agreement on Detainers, N.J.S.A. 2A:159A-1 to -15

(IAD), on August 12, 2011, but did not obtain custody of the

defendant until some point in 2013. Id. at 128. On August 13,

2013, the defendant pleaded guilty to the New Jersey charges, and

the court denied the defendant's request for jail credits. Ibid.

4 A-3808-14T1
 On appeal, we reversed and granted the defendant jail credits

for the time between the filing of the New Jersey detainer, August

12, 2011, and the New York sentencing, February 13, 2012. Id. at

129. However, the Court disagreed, holding "if a defendant is

incarcerated out of state and the confinement is not due solely

to New Jersey charges, jail credit does not apply." Id. at 135

(emphasis added). The Court cited with approval our decision in

State v. Council, 137 N.J. Super. 306 (App. Div. 1975), where jail

credits were not awarded "to a defendant who was serving time in

federal prison for an unrelated offense," because "New Jersey's

detainer did not 'in any way lengthen[] his stay in [federal

prison].'" Joe, supra, 228 N.J. at 136 (alteration in original)

(quoting Council, supra, 137 N.J. Super. at 309). The Court

explained that "[b]y limiting jail credit to defendants who are

either detained out of state exclusively on New Jersey charges or

who are confined in New Jersey, our holding 'add[s] uniformity to

the administration of the criminal justice system.'" Id. at 138

(alteration in original) (quoting State v. Carreker, 172 N.J. 100,

116 (2002)).

The State argues Joe controls proper disposition of this

appeal. Defendant contends this case is distinguishable from Joe

because, unlike that case, which involved New Jersey charges that

were unrelated to the New York charges for which the defendant was

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in out-of-state custody, "the charges in this case and the federal

charges to which [defendant] pleaded guilty were based on conduct

against the same victims during the same timeframe." This

distinction is unpersuasive.

While not identical, the facts in Joe are similar enough,

leading us to conclude we must reverse our judgment and affirm the

original judgment of the Law Division. After Joe, a defendant

earns jail credits only if "detained out of state exclusively on

New Jersey charges or . . . confined in New Jersey." Ibid.

Defendant does not qualify under either criteria.1

We vacate our prior judgment and affirm the original judgment

of conviction entered by the trial court, which awarded defendant

no jail credits.

1
Defendant has not identified specific days when he appeared in
New Jersey courts prior to his federal sentencing on April 14,
2014, e.g., November 12, 2013, when he entered his guilty plea to
the state charges, nor has he specifically argued he was entitled
to jail credit for those limited days.

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