STATE OF NEW JERSEY VS. RYAN MCERLEAN

We glean the following facts and procedural history from

the record. On February 9, 2005, defendant was arrested in

Ocean County on charges of kidnapping, robbery, burglary, theft,

and weapons offenses arising out of an October 31, 2004 incident

in Lakewood. Defendant was remanded to the Ocean County Jail

where he remained until March 29, 2005, when he posted bail and

was released from custody.

On February 21, 2006, defendant was indicted by an Ocean

County Grand Jury for first-degree kidnapping, N.J.S.A. 2C:13

1(b) (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count

two); two counts of second-degree burglary, N.J.S.A. 2C:18-2

(counts three and four); three counts of third-degree theft,

N.J.S.A. 2C:20-3 (counts five, six, and eight); third-degree

unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count

seven); and fourth-degree possession of a weapon by a convicted

person, N.J.S.A. 2C:39-7(a) (count nine). On the same day,

defendant was arrested on unrelated charges in Atlantic County

and remanded to the Atlantic County Jail.

On February 22, 2006, the Ocean County Superior Court

transmitted an Ocean County Court Warrant to the Atlantic County

Jail requiring that defendant be brought before the Ocean County

Court in connection with the charges in the indictment.

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Defendant, however, remained in custody in the Atlantic County

Jail for a total of 272 days until November 30, 2006, when he

was released after his acquittal on the Atlantic County charge.

Upon defendant's release from the Atlantic County Jail he

was transferred pursuant to the Ocean County warrant to the

Ocean County Jail. During his incarceration in the Ocean County

Jail, defendant served a ten-day sentence between January 17,

2007 and January 26, 2007, on an unrelated motor vehicle

violation.

On February 7, 2008, defendant pled guilty in Ocean County

to first-degree robbery under count two of the indictment

pursuant to a negotiated plea agreement. On April 4, 2008,

defendant was sentenced to a fourteen-year custodial term

subject to the requirements of the No Early Release Act,

N.J.S.A. 2C:43-7.2. Defendant was awarded 530 days of jail

credit, but was not given jail credit for the 272 days he was

incarcerated in the Atlantic County Jail.1

Defendant filed a pro se notice of appeal challenging his

sentence, and was assigned counsel. On December 29, 2009, we

issued an order affirming defendant's sentence. State v.

McErlean, A-4052-07 (App. Div. Dec. 29, 2009). Defendant's

1 Defendant was also not awarded jail credit for the ten days he was incarcerated in the Ocean County Jail for his sentence on the motor vehicle charges.

A-1045-14T2 4

petition for certification was denied. State v. McErlean, 201

N.J. 446 (2010).

On August 16, 2012, defendant filed a pro se PCR petition

claiming that his plea counsel was ineffective by failing to

adequately investigate the case, file motions to dismiss the

indictment and to suppress evidence, and request that defendant

be awarded an additional 272 days of jail credit for the time he

was incarcerated in the Atlantic County Jail. Defendant further

alleged that counsel misled him regarding the penal consequences

of the plea and pressured him into pleading guilty.

The court granted defendant's request for an evidentiary

hearing. The court heard testimony on September 27, 2013, and

at the continuation of the hearing on November 15, 2013,

defendant withdrew all of his claims with the exception of his

contention that his attorney was ineffective by failing to

request that he be awarded 272 days of jail credit at

sentencing. The court permitted the submission of additional

briefs on defendant's remaining claim.

The court subsequently issued a detailed written opinion

and entered an order denying defendant's petition. The court

rejected defendant's argument that he was entitled to jail

credit for the time he was incarcerated in Atlantic County,

finding that at the time defendant was sentenced Rule 3:21-8 did

A-1045-14T2 5

not require the award of jail credit on defendant's Ocean County

sentence for the time he spent in the Atlantic County jail on

unrelated charges. State v. Hill, 208 N.J. Super. 492, 494-95

(App. Div.), certif. denied, 104 N.J. 412 (1986). The court

also found defendant was not entitled to the jail credit under

State v. Hernandez, 208 N.J. 24 (2011), because the decision had

prospective application only. This appeal followed.

On appeal, defendant's counsel makes the following

argument:

POINT I:

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR RESENTENCING BECAUSE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT UNDER THE NEW JERSEY CODE OF CRIMINAL JUSTICE TO BE GIVEN CREDIT FOR TIME SERVED WAS VIOLATED.

In defendant's pro se supplemental brief, he argues:

POINT I:

IN COMPLIANCE WITH STATE V. HERNANDEZ, 208 N.J. 24 (2011) AND ITS PROGENY, APPELLANT IS ENTITLED TO ADDITIONAL JAIL CREDIT PURSUANT TO R. 3:21-8, FROM FEBRUARY 21, 2006[,] TO NOVEMBER 30, 2006.

POINT II:

IN THE INTEREST OF JUSTICE APPELLANT REQUEST[S] THAT THE APPELLATE DIVISION EXERCISE AND RETAIN ORIGINAL JURISDICTION AND AMEND HIS JUDGMENT OF CONVICTION TO REFLECT ADDITIONAL JAIL CREDIT TOTALLING 283 DAYS.

A-1045-14T2 6

II.

In defendant's PCR petition, he asserted that his plea

counsel was ineffective by failing to request that the court

award an additional 272 days of jail credit. Defendant's claim

is considered under the two-part test established by the Supreme

Court of the United States in Strickland v. Washington, 466 U.S.

668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984),

and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42,

58 (1987).

Under Strickland, a defendant first must show that his

attorney's handling of the matter "fell below an objective

standard of reasonableness." Strickland, supra, 466 U.S. at 688,

104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant also must

show that there exists a "reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different." Id. at 694, 104 S. Ct. at 2068, 80

L. Ed. 2d at 698.

We review the legal conclusions of a PCR court de novo.

State v. Harris, 181 N.J. 391, 419 (2004) (citing Manalapan

Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378

(1995)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L.

Ed. 2d 898 (2005). The de novo standard of review applies to

mixed questions of fact and law. Harris, supra, 181 N.J. at

A-1045-14T2 7

420. Where an evidentiary hearing has not been held, it is

within our authority "to conduct a de novo review of both the

factual findings and legal conclusions of the PCR court."2 Id.

at 421. We apply that standard here.

The PCR court did not analyze defendant's claim under the

Strickland standard, but its findings support its rejection of

defendant's petition. Defendant did not demonstrate that his

plea counsel's performance was deficient or that he suffered

prejudice as required under the Strickland standard because, as

the PCR court correctly concluded, defendant was not entitled to

the claimed jail credit under the law applicable at the time of

sentencing.

Rule 3:21-8 provides that a "defendant shall receive credit

on the term of a custodial sentence for any time served in

custody in jail . . . between arrest and the imposition of

sentence." At the time of defendant's sentencing, the Rule

required the award of jail credit "only [for] such confinement

as [was] attributable to the arrest or other detention resulting

from the particular offense" to which the sentence applied.

2 Although the PCR court commenced an evidentiary hearing, it was on issues unrelated to defendant's claim that his counsel failed to request jail credit at sentencing. There was no evidentiary hearing related to defendant's claim concerning the award of jail credit, nor was there a need for a hearing because the facts relevant to defendant's jail credit claim are not disputed.

A-1045-14T2 8

State v. Council, 137 N.J. Super. 306, 308 (App. Div. 1975),

certif. denied, 77 N.J. 472 (1978); see also In re Hinsinger,

180 N.J. Super. 491, 499 (App. Div.) ("R. 3:21-8 only applies to

confinement directly attributable to the particular offense

giving rise to the initial incarceration."), certif. denied, 88

N.J. 494 (1981).

At the time of his sentencing, defendant was not entitled

to jail credit for the time spent in custody on the unrelated

Atlantic County charge for which he was acquitted, even though

he was also detained pursuant to the Ocean County warrant during

his period of incarceration in the Atlantic County Jail. As we

explained in Hill, while "unfortunate," it was "not uncommon for

a defendant to be incarcerated on charges for which he [was]

later acquitted or which [were] subsequently dismissed . . . .

Nevertheless, we perceive[d] great mischief flowing from a rule

which would accord such individuals credit against custodial

sentences on wholly unrelated charges." Hill, supra, 208 N.J.

Super. at 495.

Such incarceration, "'unlike money on deposit in the bank

or a credit card, [could] not be drawn on or credited against

penalties imposed' for other criminal activities." Ibid.

(quoting State v. Marnin, 108 N.J. Super. 442, 445 (App. Div.),

certif. denied, 55 N.J. 598 (1970)). In those circumstances,

A-1045-14T2 9

the granting of jail credit was "'at best discretionary, based

upon the general equities of the situation, and [was] not a

matter of due process' or right."3 Ibid. (quoting Marnin, supra,

108 N.J. Super. at 445).

We are satisfied that defendant failed to demonstrate that

his counsel's performance was deficient under the first prong of

the Strickland standard. The reasonableness of defendant's plea

counsel's performance must be "viewed as of the time of

counsel's conduct." State v. Castagna, 187 N.J. 293, 314 (2006)

(quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066,

80 L. Ed. 2d at 694). As noted, defendant was not entitled to

the 272 days of jail credit at the time his sentence was imposed

and his plea counsel's performance was not deficient by failing

to make a meritless request of the court. See State v. O'Neal,

190 N.J. 601, 619 (2007) (holding "[i]t is not ineffective

assistance of counsel for defense counsel not to file a

meritless motion"); State v. Worlock, 117 N.J. 596, 625 (1990)

("The failure to raise unsuccessful legal arguments does not

constitute ineffective assistance of counsel.").

3 Defendant did not argue or establish that it would have been an abuse of the sentencing court's discretion to reject a request for the 272 days of jail credit. We therefore do not consider the issue other than to note that it was defendant's burden to establish each prong of the Strickland standard. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

A-1045-14T2 10

Defendant also failed to establish that he suffered

prejudice under the second prong of the Strickland standard

because even if his counsel requested the jail credit, the

result of the sentencing proceeding would not have changed.

Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L.

Ed. 2d at 698. Again, a request for the 272 days of jail credit

would have been properly rejected by the sentencing court

because defendant was not entitled to it. Defendant therefore

did not demonstrate there is a reasonable probability that but

for his counsel's failure to request the jail credit, the jail

credit awarded would have been different.

A petitioner must establish both prongs of the Strickland

standard in order to obtain a reversal of the challenged

conviction. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at

2064, 80 L. Ed. 2d at 693; State v. Nash, 212 N.J. 518, 542

(2013); Fritz, supra, 105 N.J. at 52. A failure to satisfy

either prong of the Strickland standard requires the denial of a

petition for PCR. Strickland, supra, 466 U.S. at 700, 104 S. Ct.

at 2071, 80 L. Ed. 2d at 702. Because defendant failed to

satisfy both prongs of the Strickland standard, the court

properly denied his PCR petition.

We reject defendant's contention that our Supreme Court's

decision in State v. Hernandez, 208 N.J. 24 (2011), requires a

A-1045-14T2 11

different result. The Court in Hernandez held that "a defendant

in jail pending trial in one county subject to a detainer on

charges in another county must [now] receive jail credits under

Rule 3:21-8 for that time on both charges" for the time spent in

custody. Id. at 49 (emphasis added). Because the Court's

holding represented a departure from existing precedent, the

Court determined that it would apply prospectively to sentences

imposed after the decision and to "those matters still on direct

appeal in which the amount of jail credits was actually

questioned or challenged by defendant at sentencing." Id. at 51.

Defendant was sentenced prior to the Court's decision in

Hernandez, did not have a direct appeal pending when the

decision was issued, and never challenged the jail credit award

at the time of sentencing. Ibid. The Court's holding in

Hernandez therefore is inapplicable where, as here, a defendant

was sentenced prior to the issuance of the Court's decision.

We are also not persuaded by defendant's argument that

because the Hernandez decision did not arise from the precise

factual situation extant here, he should receive the jail credit

as a matter of equity and due process because the sentence

should "shock the judicial conscience." The law applicable at

the time of defendant's sentencing did not require the award of

jail credit under the circumstances presented here, but

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permitted an award of the jail credit as a matter of discretion

and not due process. Hill, supra, 208 N.J. Super. at 495. We

discern no basis in the record supporting defendant's argument

that the plea court's imposition of a sentence in accordance

with the applicable legal principles at the time constituted an

abuse of discretion or should shock our judicial conscience.

We also note that defendant's claim concerning the jail

credit is barred under Rule 3:22-4. It could have reasonably

been raised on the direct appeal of his sentence and he made no

showing that it falls within any of the exceptions in the Rule.

See Nash, supra, 212 N.J. at 546 ("A petitioner is generally

barred from presenting a claim on PCR that could have been

raised . . . on direct appeal" unless the claim is within the

exceptions under Rule 3:22-4.).

Defendant's remaining arguments are without sufficient

merit to warrant discussion in a written opinion. R. 2:11

3(e)(2).

Affirmed.