State v. Perry, A-0465-11T4; Appellate Division; opinion by Alvarez, J.A.D.; decided and approved for publication May 10, 2013. Before Judges Alvarez, Waugh and St. John. On appeal from the Law Division, Warren County, Indictment No. 08-05-0208. DDS No. 14-2-9916 [11 pp.]

In November 2007, while on parole in Pennsylvania, defendant John Perry was arrested there on new charges and placed on parole-violation-pending (PVP) status.

In December, Warren County filed criminal complaints against him for car burglary and related charges and asked Pennsylvania to lodge a detainer against him pursuant to the Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A-1 to -15. The county also asked to be notified when he could be transported to New Jersey.

Perry indicated his interest in addressing his New Jersey charges. However, he was told that because of his PVP status, he was not eligible to be transferred out of state. He was told that he could be extradited under a governor’s warrant and executive agreement or a waiver of extradition. However, when New Jersey attempted to secure his presence in that manner, he refused to waive extradition.

Perry filed federal habeas corpus petitions in Pennsylvania and New Jersey and a Pennsylvania state habeas corpus petition in August 2009. A Pennsylvania judge dismissed the New Jersey detainer and directed the Pennsylvania authorities to release him. Warren County was not told of his release.

In April 2010, Perry was arrested in Pennsylvania on a fugitive-from-justice warrant issued on the Warren County indictment. In July, the Pennsylvania Department of Corrections cleared his PVP status, recommitting him to serve 12 months retroactive to April 2010. During that time he refused to sign IAD Form 1, which would have initiated his transfer to New Jersey. As a result, the Warren County Prosecutor’s Office sent a request for temporary custody under Form 5 of the IAD. An IAD pretransfer hearing was held and defendant was transferred to Warren County in November 2010.

In February 2011, defendant filed a motion to dismiss his charges on the basis that Warren County had failed to comply with the IAD. However, he eventually pleaded guilty and was sentenced. He was credited with 91 days that accrued from the completion of his Pennsylvania sentence to the time he was sentenced in New Jersey.

His sentence included $475 in restitution. At sentencing, trial counsel said the amount was very fair. Defendant did not object to the amount of restitution.

Held: Because the delay that resulted from Pennsylvania’s refusal to allow defendant to be transferred to face pending New Jersey charges until disposition of his Pennsylvania parole violation charge is not one of the enumerated instances requiring dismissal of the charges under the IAD, and no public policy purpose would be served by dismissing them, the trial court’s refusal to do so is affirmed.

The panel says that when a detainer is lodged, a defendant not brought to trial within 180 days is entitled to dismissal of his charges. However, Perry was in custody in a sending state on terms that did not allow him to take advantage of the IAD procedures.

Even where the failure of the sending state to comply with the IAD process is attributable to administrative negligence or oversight, that does not compel the dismissal of charges. No public interest or legislative intent is advanced, relative to the expeditious disposition of charges in a receiving state, by punishing a prosecuting authority in the receiving state for the collateral effects of the presumably lawful policy being implemented by a sending state. Thus, New Jersey should not be punished for the consequences of defendant’s status as a Pennsylvania parole violator.

Also, the 180-day statutory limit in 2A:159A-3 is inapplicable because Perry refused to waive extradition. The statute provides that any request for final disposition made by a prisoner is considered a waiver of extradition after the completion of his custodial sentence in the sending state. However, to make an effective request, the prisoner must substantially comply with the technical requirements of Article III. Also, where, as here, his failure to comply with technical requirements is caused by his own omissions, dismissal is improper.

Further, the court says no violation of the 120-day statutory limit occurred. The clock did not begin to run until Perry was transferred to Warren County. Although the 120 days would have ended in March 2011, the court granted several continuances, including one accommodating defendant. Defendant pleaded to his New Jersey charges within the prescribed time limits.

The panel says defendant was transferred under Article IV of the IAD because he had become a sentenced defendant once his PVP status ended. A hearing was conducted before he was transferred after which the Pennsylvania court ordered his temporary transfer to New Jersey. He was sent to New Jersey under Article IV of the IAD statute, not Article III. The 120 days began on the date of his arrival and ended four months later, at which time successive continuances were granted. Since he entered his plea before the final continuance expired, Article IV was not violated and he is not entitled to dismissal under that section of the statute either.

The panel rejects defendant’s claim that he is entitled to jail credit for the time he was serving his sentence on the Pennsylvania charges because he was in New Jersey awaiting disposition on his New Jersey charges, saying he is not entitled to New Jersey jail credit for time he was serving on the Pennsylvania parole-violation resentence.

It also rejects his claim that absent a finding as to his ability to pay restitution, the entry of a restitution order was improper, citing defense counsel’s statement regarding the restitution amount and defendant’s silence on the point.

For appellant — Joseph E. Krakora, Public Defender (Stephen W. Kirsch, Assistant Deputy Public Defender, on the brief). For respondent — Richard T. Burke, Warren County Prosecutor (Dit Mosco, Assistant Prosecutor, on the brief).