                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-1640-12T4

STATE OF NEW JERSEY,

     Plaintiff-Respondent,              APPROVED FOR PUBLICATION

                                             June 17, 2014
v.
                                          APPELLATE DIVISION
CHRISTOPH F. ADAMS, a/k/a
CHRISTOPH J. ADAMS, CHRISTOPH
ALBERT and CHRISTOPH ALLEN,

     Defendant-Appellant.
____________________________________

         Submitted January 29, 2014 – Decided June 17, 2014

         Before Judges Grall, Waugh and Accurso.

         On appeal from Superior Court of New
         Jersey, Law Division, Union County,
         Indictment No. 11-05-0606.

         Joseph E. Krakora, Public Defender, attorney
         for appellant (Michael B. Jones, Assistant
         Deputy Public Defender, of counsel and on
         the brief).

         Grace H. Park, Acting Union County
         Prosecutor, attorney for respondent (Sara B.
         Liebman, Special Deputy Attorney General/
         Acting Assistant Prosecutor, of counsel and
         on the brief).

     The opinion of the court was delivered by

GRALL, P.J.A.D.

     Defendant was arrested for a new crime while participating

in the Intensive Supervision Program (ISP) following
modification of a custodial sentence on a prior conviction to

permit that participation.   R. 3:21-10(b)(6).   The precise

question presented is whether defendant is entitled to jail

credits pursuant to Rule 3:21-8 against the sentence for the new

crime from the date of his arrest for that crime until the date

he was either sentenced by the judge for the new crime or

resentenced by the three-judge ISP panel for "fail[ure] to

perform satisfactorily following entry into" ISP, R. 3:21-10(e).

We conclude that a defendant in this circumstance is entitled to

jail credits for days in confinement from the date of arrest to

the date the first sentence is imposed.1




1
  The appeal was argued without briefs in conformity with Rule
2:9-11, but the panel transferred the case to a calendar for
disposition after full briefing. In the brief submitted on
defendant's behalf, the issues are stated as follows:

          POINT I
          MR. ADAMS IS ENTITLED TO THE TIME BETWEEN
          HIS ARREST AND THE REIMPOSITION OF HIS ISP
          SENTENCE AS A MATTER OF LAW. HERNANDEZ
          REQUIRES THAT CREDIT BE ALLOCATED FOR TIME
          SPENT IN CUSTODY AND MR. ADAMS HAS NOT BEEN
          CREDITED WITH ANY TIME FOR THAT PERIOD.

          POINT II
          MR. ADAMS IS ENTITLED TO THE TIME BETWEEN
          HIS ARREST AND THE REIMPOSITION OF HIS ISP
          SENTENCE BECAUSE IT WAS A TERM OF HIS PLEA
          AGREEMENT, AT LEAST AS HE REASONABLY
          UNDERSTOOD IT.




                                2                           A-1640-12T4
     Our decision is informed by State v. Hernandez, 208 N.J. 24

(2011), which addresses jail credits in a case involving

multiple charges, R. 3:21-8; N.J.S.A. 2C:44-5b.   And it is

informed by State v. DiAngelo, 434 N.J. Super. 443 (App. Div.

2014), which applies Hernandez in a case involving resentencing

for a violation of probation.

                                   I

     The essential facts are procedural.   In February 2010,

defendant Christoph Adams was convicted of second-degree

eluding, N.J.S.A. 2C:29-2b, and second-degree receipt of stolen

property, N.J.S.A. 2C:20-7, and in July 2010 he was sentenced to

concurrent four-year terms of imprisonment.2   Defendant's

subsequent motion to change that "custodial sentence to permit

[his] entry into [ISP]" was granted by the three-judge ISP panel

pursuant to Rule 3:21-10(b)(6).3

     While participating in ISP, on February 16, 2011, defendant

was arrested and subsequently indicted for crimes committed on

that date.   The indictment charged defendant with second-degree

aggravated assault, N.J.S.A. 2C:12-1b(1), and third-degree

2
  The judgment of conviction is not in the record on appeal, but
according to defendant's pre-sentence report (PSR), it was
imposed in July 2010.
3
  The order changing the sentence entered by the ISP panel is not
in the record on appeal. Defendant's PSR states that he entered
ISP on December 30, 2010.



                                   3                         A-1640-12T4
terroristic threats, N.J.S.A. 2C:12-3a-b.     Defendant was also

subject to pending accusations charging disorderly persons

offenses committed during the same incident — harassment by

offensive touching, N.J.S.A. 2C:33-4b, and criminal mischief,

N.J.S.A. 2C:17-3b(2).    Nothing in the record indicates that the

ISP panel reimposed defendant's custodial sentence the day after

his arrest.4   Quite obviously, defendant was not participating in

ISP following that arrest; he was held in jail in Union County,

where the new charges were pending.

       On November 28, 2011, defendant pled guilty to second-

degree aggravated assault in return for the State's agreement to

recommend a term of imprisonment within the range appropriate

for a third-degree crime — three years, subject to terms of

parole ineligibility and supervision required by the No Early

Release Act (NERA) for second-degree assault, N.J.S.A. 2C:43-

7.2.   The State further promised to dismiss the second count of

the indictment and the pending accusations.    In addition, the

State agreed to recommend that the three-year sentence run

4
  The pre-sentence report prepared for defendant's sentencing on
his conviction for second-degree aggravated assault states that
defendant was "charged with a Parole Violation" on February 17,
2011, but defendant was participating in ISP and the PSR does
not indicate that he was on parole for any other prior sentence.
The PSR also states that defendant "violated ISP within one and
a half months by committing" the aggravated assault on February
16, 2011.




                                 4                          A-1640-12T4
concurrent with any custodial sentence the ISP panel might

impose.

    The ISP panel acted first.       On January 13, 2012, 331 days

after defendant's arrest, the ISP panel resentenced him in

conformity with Rule 3:21-10(e).      On January 13, the ISP panel

entered an order stating that it "reimposed original sentence

and returned [defendant] as a violator." (capitalization

omitted).   The panel awarded defendant 48 days' "ISP TIME

CREDIT" — from December 30, 2010 to February 16, 2011, but it

did not award defendant ISP credit or jail credit for the 337

days between his arrest and its reimposition of the custodial

sentence.

    Sentencing on the aggravated assault conviction was

initially scheduled for February 17, 2012.     Because of a dispute

about jail credits, defendant was not sentenced until September

14, 2012.   Thus, defendant was sentenced on his new conviction

246 days after the ISP panel resentenced him and 210 days after

his initial sentencing date.

    The judge awarded defendant one day's jail credit for the

date of his arrest.   That credit is not in dispute.    On the

ground that defendant's pre-sentence confinement from February

17, 2011 forward was attributable to defendant's failure to

satisfactorily perform on ISP, the judge denied defendant jail




                                 5                           A-1640-12T4
credits for the 377 days he was confined from the day after his

arrest until the ISP panel resentenced him on January 13, 2012.

Nevertheless, considering the plea agreement for concurrency of

the sentences to be imposed by the ISP panel for the prior

convictions and by the judge for the aggravated assault

conviction, he awarded defendant 210 days' jail credit for the

delay in defendant's sentencing for aggravated assault from

February 17 to September 13, 2012.   In fact, the State agreed

that award of the 210 days' jail credit was consistent with the

plea agreement and does not challenge that award.

                              II

    In Hernandez, the Court so significantly clarified "the

manner in which jail credits, which are earned prior to the

imposition of the first custodial sentence, are to be awarded

with respect to multiple charges," that the Court determined the

decision should be applied "only prospectively to sentences

imposed as of" the day following issuance of its decision.     208

N.J. at 50-51 (recognizing that Hernandez "may be deemed

inconsistent with" prior interpretations of Rule 3:21-8).

Because Hernandez was decided on June 8, 2011, id. at 24, it

governs the jail credits awarded against defendant's sentence

for aggravated assault on September 14, 2012.




                               6                            A-1640-12T4
    Perhaps because the State framed its argument about credits

on the assumption that those credits could be awarded on either

but not both of the sentences, the judge did not consider

Hernandez.   After all, Hernandez does not mention pre-sentence

confinement pending a resentencing by the ISP panel for

"fail[ure] to perform satisfactorily following entry into" ISP,

R. 3:21-10(e).     The State's narrow focus is improper.

    Hernandez establishes general principles that are

applicable here.    As recently explained in DiAngelo, "[p]rior to

Hernandez, when a defendant in custody faced multiple charges,

[Rule 3:21-8] was interpreted to provide credit 'only for such

confinement as is attributable to the arrest or other detention

resulting from the particular offense.'     State v. Black, 153

N.J. 438, 456 (1998) (citations and internal quotation marks

omitted)."   DiAngelo, supra, 434 N.J. Super. at 452.      Thus, the

parties' effort to identify the sentence to which the jail

credits would apply was in line with those prior decisions.

    The quest to identify a single sentence to which jail

credits apply is inappropriate under Hernandez.     The Court made

it clear that "[w]hen a defendant is confined prior to

sentencing on multiple charges, the defendant is entitled to

'credits against all sentences "for any time served in custody

in jail . . . between arrest and the imposition of sentence" on




                                  7                           A-1640-12T4
each case.'"   State v. Rippy, 431 N.J. Super. 338, 348 (App.

Div. 2013) (quoting Hernandez, supra, 208 N.J. at 28 (quoting R.

3:21-8)) (emphasis in original), certif. denied, 217 N.J. 284

(2014).   Under that principle,

          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 of happenstance .
          . . such as whether bail on one or more of
          the prior charges has been revoked.

          [Id. at 348; see Hernandez, supra, 208 N.J.
          at 48-49.]

    Where a defendant is entitled to jail credits under Rule

3:21-8 as interpreted in Hernandez, they are "mandatory, not

discretionary."   Hernandez, supra, 208 N.J. at 37.   Jail credits

authorized by Rule 3:21-8 "were conceived as a matter of equal

protection or fundamental fairness and a means of avoiding the

double punishment that would result if no such credits" for pre-

sentence confinement were awarded.    Hernandez, supra, 208 N.J.

at 36.

    Because jail credits provide day-for-day credits for time

spent in custody between arrest and imposition of sentence, R.

3:21-8; Hernandez, supra, 208 N.J. at 28, discretionary grants

or denials of jail credits "can promote sentence disparity" and

contravene "the very equal protection [Rule 3:21-8] was designed



                                  8                        A-1640-12T4
to promote."   Id. at 49.   Thus, the Hernandez Court held, "there

is no room for discretion[ary]" decisions on jail credits.      Id.

at 48-49.

    In this case, defendant was facing conviction and

sentencing on a new charge and resentencing on prior convictions

for which his custodial sentence had been changed to permit his

participation in ISP pursuant to Rule 3:21-10(b)(6).    After that

change in sentence, defendant was not serving a custodial

sentence.   He was serving a sentence in the community subject to

intensive supervision and could do so only for as long as he

"perform[ed] satisfactorily."    R. 3:21-10(e); see State v. Clay,

230 N.J. Super. 509, 516-17 (App. Div. 1989) (discussing ISP

procedures for addressing violations and resentencing

procedures), aff'd o.b., 118 N.J. 251 (1990).

    On defendant's failure to meet that standard, "[t]he three-

judge [ISP] panel [had] the authority to resentence [him], in

accordance with applicable statutes . . . ."    R. 3:21-10(e); see

State v. Cannon, 128 N.J. 546, 554 (1992) (discussing ISP and

observing that all ISP participants who do not graduate are

returned to prison).   Thus, under the terms of Rule 3:21-

10(b)(6), (e), following his arrest and pending resentencing by

the ISP panel, defendant was not subject to or serving a

custodial sentence.    He was confined, without custodial




                                 9                           A-1640-12T4
sentence, pending resentencing on his 2010 convictions and

sentencing on his 2011 plea of guilty to aggravated assault.

During that period of confinement, he was not in the community

participating in ISP in conformity with his modified sentence,

and he was not "receiving day for day credit for time spent

under supervision of the program identical to the credit [he]

would be receiving if [he] had remained within the custody of

the Department of Corrections."    Clay, supra, 230 N.J. Super. at

520.

       Circumstances material to the jail credits changed

following the ISP panel's resentencing on January 13, 2012.

Thereafter, defendant was in custody and serving a custodial

sentence for his 2010 convictions.     In DiAngelo, a panel of this

court concluded that a defendant confined pending resentencing

on an allegation of violating the conditions of probation was

entitled to jail credits for confinement pending resentencing as

a consequence of the violation.    434 N.J. Super. at 462.   The

panel rejected the State's contention that a failed probationer

pending resentencing for violation of the conditions falls

outside Rule 3:21-8 because the failed probationer is simply

continuing service of a sentence imposed.     Instead, the panel

concluded that a resentencing following a violation of probation




                                  10                         A-1640-12T4
is a new custodial sentence, one replacing a violated

probationary sentence.   Id. at 454-57.

    We see no reason to reach a different conclusion here.       The

ISP pamphlet discussed in Clay set forth a resentencing

procedure and provides that proceedings on violations will

conform to statutes governing violations of probation,

specifically N.J.S.A. 2C:45-3 and N.J.S.A. 2C:45-4.     230 N.J.

Super. at 516-17.

    A failed probationer and a failed participant in ISP are

similarly situated pending resentencing.    Prior to failure to

comply with the conditions of the non-custodial sentence, both

were serving a sentence in the community subject to supervision,

albeit differing levels of supervision.    After their respective

failures to comply, they both faced resentencing that could lead

to a custodial sentence that can be imposed under the law.     R.

3:21-8; N.J.S.A. 2C:45-3b.   In contrast, they are not similarly

situated to a parolee who violates the conditions of his or her

release.   A parolee is released while compliant with parole

conditions for the uncompleted duration of a custodial sentence.

The parolee is subject to reincarceration for violation of a

condition, and upon revocation continues to serve the custodial

sentence from which he or she had been released.




                                11                          A-1640-12T4
    The State's reliance on State v. Black, 153 N.J. 438 (1998)

and State v. Carreker, 172 N.J. 100 (2002), is misplaced.     As

the Supreme Court stressed in Hernandez, the defendants seeking

jail credits in those cases were serving custodial sentences.

208 N.J. at 44-45.    Under Hernandez, a defendant who is serving

another custodial sentence is not entitled to relief under that

rule, because jail credits do not accrue while a defendant is

serving a sentence.     208 N.J. at 47.

    But this defendant was not serving a custodial sentence

when he committed, and was arrested for committing, aggravated

assault in 2011.   Although defendant had previously been serving

a custodial sentence on the 2010 charges, at the time of the

aggravated assault and his arrest for it in 2011, this

defendant's custodial sentence had been changed to permit his

participation in ISP.     R. 3:21-10(b)(6).

    Rule 3:21-8 requires an award of credits between arrest and

the imposition of a sentence.    Defendant simply was not serving

his custodial sentence on any conviction while confined prior to

the first of his 2012 sentencings — the January 13, 2012 ISP

panel resentencing.   Under Hernandez, the fact that defendant

was confined pending resentencing on his 2010 convictions did

not change the fact that he was also confined pending




                                  12                        A-1640-12T4
disposition and sentence on his 2011 guilty plea to aggravated

assault.

      For all of the foregoing reasons, defendant is entitled to

331 days' jail credit against his conviction for aggravated

assault from his arrest on February 16, 2011 to the day before

he was resentenced by the ISP panel, January 13, 2012.     Whether

or not defendant was "violated" or detained by authority of the

ISP is a matter of happenstance.      See Hernandez, supra, 208 N.J.

at 45-49.   He was confined during that period pending

resentencing on the 2010 conviction and pending sentencing on

the 2012 conviction.    As the judge awarded defendant one day's

credit for the date of his arrest, we remand for an award of an

additional 330 days' jail credit for the period from February

17, 2011 to January 13, 2012.

      Although the State does not raise the issue, it is

appropriate for this court to correct an award of jail credits

made contrary to law.    See Rippy, supra, 431 N.J. Super. at 347-

48.   As previously noted, Hernandez leaves no room for doubt

that after the first sentence on one of multiple pending charges

is imposed, jail credits no longer accrue.     208 N.J. at 47.    As

of the day following the issuance of Hernandez, June 9, 2011,

judges had no discretion to award or deny jail credits where

none are due under Rule 3:21-8 as interpreted by the Court in




                                 13                          A-1640-12T4
that case.   208 N.J. at 48-51.   Accordingly, the 210 days' jail

credit awarded defendant from February 17, 2012 to September 13,

2012 must be vacated.5

     Given our resolution of the jail credits awarded in this

case, defendant's remaining arguments have insufficient merit to

warrant any additional discussion.     R. 2:11-3(e)(2).   To the

extent that defendant argues that he understood the agreement to

provide credit for all pre-sentence confinement against his

sentence, we do not understand Hernandez to authorize a plea

agreement for jail credits that is contrary to law.       In any

event, because defendant did not move to vacate his guilty plea,

the question is not properly before us.

     Affirmed as modified and remanded for adjustment of jail

credits in conformity with this opinion.




5
  Defendant does not seek gap-time credits against his sentence
for aggravated assault, which includes a NERA parole
ineligibility term. As the Supreme Court noted in Hernandez,
gap-time credits awarded to a defendant on a sentence subject to
NERA parole ineligibility are likely to have no benefit. 208
N.J. at 38-41.



                                  14                          A-1640-12T4
