State v. Rippy, A-5129-10T3; Appellate Division; opinion by Grall, J.A.D.; decided and approved for publication June 21, 2013. Before Judges Grall, Simonelli and Accurso. On appeal from the Law Division, Middlesex County, Indictment Nos. 08-06-1065, 02-09-1179, 08-03-0493 and 08-06-1064. DDS No. 14-2-0383 [20 pp.]

The primary issues presented on this appeal and cross-appeal involve the award of jail credits on four indictments that were pending for several years.

Following reversal of defendant James Rippy's convictions on an indictment charging him with first-degree robbery and related offenses, he accepted a plea agreement resolving four indictments charging him with crimes committed in 2002 and 2003. Pursuant to that agreement, in February 2011 defendant pleaded guilty to two counts of first-degree robbery, one charged in Indictment 02-09-1179 and another charged in Indictment 08-06-1065 (superseding Indictment 03-03-0426); second-degree burglary, charged in Indictment 08-06-1064 (superseding Indictment 02-10-1342); and bail jumping, charged in Indictment 08-03-0493. All of these indictments were returned by the grand jurors for Middlesex County.

On May 20, 2011, the judge sentenced defendant to terms of imprisonment on each count to be served concurrently with one another. The judge imposed 20-year terms for each of the two first-degree robberies that are subject to periods of parole ineligibility and supervision mandated by the No Early Release Act (NERA), a 10-year term for second-degree burglary, and a four-year term for bail jumping.

This sentencing preceded the Supreme Court's decision in State v. Hernandez, but Hernandez applies because defendant and the state disputed the amount of jail credits at sentencing. Accepting defense counsel's argument that the award of jail credits is discretionary, the judge did not address either Rule 3:21-8, which governs jail credits, or N.J.S.A. 2C:44-5b, which governs gap-time credits. In several respects, the jail credits awarded deviate from those mandated by Rule 3:21-8, as interpreted in Hernandez. Some of the deviations are in defendant's favor and some are to his disadvantage.

Held: A defendant subject to multiple charges who has been sentenced on only one indictment is entitled to jail credits for a period of confinement that follows reversal of the convictions underlying the first sentence and precedes the first sentencing following the reversal. Jail credits for such confinement are due on all indictments pending at the time.

Because Hernandez applies, its holding and rationale permit the state to challenge an award of jail credits that is inconsistent with the Supreme Court's interpretation of Rule 3:21-8 or N.J.S.A. 2C:44-5b, governing gap-time credits.

Hernandez explains that when a defendant is confined prior to sentencing on multiple charges, the defendant is entitled to jail credits against all sentences for any time served in custody in jail between arrest and the imposition of sentence on each case. A defendant is entitled to jail credits on all cases for all days of confinement after his arrest in that case and prior to imposition of the first sentence, and that is so even if a subsequent period of confinement is on an arrest for a new charge and regardless of matters within the prosecutor's control — such as whether bail on one or more of the prior charges has been revoked. After the first sentencing, a defendant is entitled to gap-time credits when sentenced on the other pending charges if "(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."

Hernandez, unlike this case, did not involve a first sentence that was vacated because the underlying convictions were reversed on appeal. Here, the question is whether a defendant is entitled to jail credits for presentence confinement pending retrial that follows the reversal of his first sentence on the first of multiple indictments.

As the appellate panel understands the Hernandez court's description of the imposition of the first sentence as the cutoff date for the accrual of jail credits, the cutoff applies during the period the defendant is serving the first sentence, but it would not apply to a period of confinement that follows the reversal of the convictions for which the first sentence was imposed. There are several factors that lead to that conclusion.

First, a defendant who is serving a sentence on one charge is not entitled to jail credits for that time served on another pending charge. Thus, the cutoff of accrual of jail credits at that point is consistent with the longstanding interpretation of Rule 3:21-8.

Second, the deprivation of jail credits during the interval between reversal of a conviction and reconviction and sentencing, would lead to preconviction confinement during the hiatus between service of the sentence without any credits. That result would be contrary to the court's reasoning in Hernandez, because it would lead to the double punishment that Rule 3:21-8 was created to avoid.

Third, time spent in jail pending a new trial or plea following the reversal of the underlying convictions is time served in custody after arrest and prior to sentencing for a valid conviction on the pending charges. Thus, such time falls within the terms of Rule 3:21-8.

In effect, a defendant who is held in custody following reversal of a conviction is in custody pending disposition and sentencing on all charges that are then pending. Accordingly, the appellate panel rejects the state's claim that defendant was entitled to gap-time credits, not jail credits, for the period of confinement beginning on Dec. 14, 2010, with the reversal of the convictions supporting his first sentence, and ending on May 19, 2011, the day before defendant was first sentenced on a pending charge following the reversal of his convictions on Indictment 02-09-1179. He was entitled to jail credits for this period on all of the pending charges for which he had been arrested.

On each of the four indictments, defendant was entitled to jail credits for the period of postarrest and predisposition confinement prior to his sentencing on Indictment 02-09-1179.

A remand for resentencing is needed to correct the errors in the award of credits.

For appellant/cross-respondent — Joseph E. Krakora, Public Defender (Rochelle Watson, Assistant Deputy Public Defender, on the brief). For respondent/cross-appellant — Andrew C. Carey, Acting Middlesex County Prosecutor (Joie Piderit, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).