                             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                        NOT FOR PUBLICATION WITHOUT THE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.

                                   2                             A-3808-14T1
               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.



                                3                          A-3808-14T1
      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

                                  5                          A-3808-14T1
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.

                                    6                                A-3808-14T1
