                                 NOT FOR PUBLICATION WITHOUT THE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-0751-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

EDMOND S. BELL, II, a/k/a
REDOX BELL,

     Defendant-Appellant.
_______________________________

                   Submitted March 18, 2020 – Decided June 2, 2020

                   Before Judges Koblitz and Whipple.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Ocean County, Indictment Nos. 15-03-0534,
                   15-03-0619, and 16-08-1569.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Anderson David Harkov, Designated
                   Counsel, on the brief).

                   Bradley D. Billhimer, Ocean County Prosecutor,
                   attorney for respondent (Samuel J. Marzarella, Chief
                   Appellate Attorney, of counsel; Dina Rochelle
                   Khajezadeh, Assistant Prosecutor, on the brief).
PER CURIAM

      Defendant appeals from an August 1, 2018 order denying his petition for

post-conviction relief (PCR) without an evidentiary hearing.

      Defendant raises the following issue on appeal:

            POINT ONE

            THE FAILURE OF SENTENCING COUNSEL TO
            ARGUE THAT DEFENDANT SHOULD HAVE
            RECEIVED GAP-TIME CREDIT PURSUANT TO
            N.J.S.A. 2C:44-5b(2), DEPRIVED DEFENDANT OF
            HIS    CONSTITUTIONAL RIGHT TO          THE
            EFFECTIVE ASSISTANCE OF COUNSEL AND
            THUS THE PCR COURT ERRED WHEN IT FAILED
            TO GRANT DEFENDANT'S PETITION FOR POST
            CONVICTION RELIEF.

      We affirm for the reasons Judge Guy P. Ryan expressed in his thorough

written opinion and add the following comments.

      In order to establish a prima facie claim of ineffective assistance of

counsel, a defendant must satisfy the two-prong test established in Strickland v.

Washington, 466 U.S. 668 (1984). The defendant must show that (1) counsel

"made errors so serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment" of the United States

Constitution; and (2) the defect in performance prejudiced his or her rights to a

fair trial such that there exists "a reasonable probability that, but for counsel's


                                                                           A-0751-18T4
                                        2
unprofessional errors, the result of proceeding would have been different." Id.

at 687, 694; State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the standard in

Strickland).

      In the context of a guilty plea, our Supreme Court has explained that to

prove ineffective assistance of counsel a defendant must demonstrate "(i)

counsel's assistance was not 'within the range of competence demanded of

attorneys in criminal cases'; and (ii) 'that there is a reasonable probability that,

but for counsel's errors, [the defendant] would not have pled guilty and would

have insisted on going to trial.'" State v. Nuñez- Valdéz, 200 N.J. 129, 139

(2009) (alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457

(1994)).

      To assess whether defendant's counsel performed deficiently by failing to

argue he should have received gap-time credit we must first determine whether

defendant was entitled to such credit. N.J.S.A. 2C:44-5(b) governs gap-time

credit and "awards a defendant who is given two separate sentences on two

different dates credit toward the second sentence for the time spent in custody

since he or she began serving the first sentence." State v. Hernandez, 208 N.J.

24, 38 (2011). A defendant is entitled to gap-time credit when "(1) the defendant

has been sentenced previously to a term of imprisonment; (2) the defendant is


                                                                            A-0751-18T4
                                         3
sentenced subsequently to another term; and (3) both offenses occurred prior to

the imposition of the first sentence." State v. Franklin, 175 N.J. 456, 462 (2003).

When those elements are met, the sentencing court is obligated to award gap-

time credits. Ibid.

      Having conducted a careful review of the record, we conclude the law

does not support defendant's argument concerning gap-time credit. Gap-time

credit does not apply to the time between re-incarceration on a parole detainer

and imposition of a separate sentence for a crime committed while on parole.

Id. at 471. He was still "in custody" when he committed the new offense and

was therefore disqualified from receiving gap-time credit. N.J.S.A. 2C:44-

5(b)(3).

      Judge Ryan correctly applied these principles. The record fully supports

his findings and conclusions that defendant did not establish a prima facie case

of ineffective assistance of counsel. Accordingly, an evidentiary hearing was

not necessary or warranted as defendant was not entitled to any additional jail

or gap-time credits.

      Affirmed.




                                                                           A-0751-18T4
                                        4
