                        NOT FOR PUBLICATION WITHOUT THE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-0236-15T3
                                                  A-0984-15T3
                                                  A-1044-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

MICHAEL J. DIEDUARDO a/k/a MICHAEL
JOHN DIEDUARDO, ANTHONY DIEDUARDO,
JOHN TETELMAN,

     Defendant–Appellant.
_____________________________
STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

MICHAEL SHORTER a/k/a MICHAEL SHORTOR,
MICHAEL LAMONT SHORTER, MIKE WILLIAMS,

     Defendant-Appellant.
_______________________________
STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

CARMELO SOTO,

     Defendant-Appellant.
___________________________________
             Submitted May 23, 2017 – Decided June 20, 2017

             Before Judges Reisner and Rothstadt.

             On appeal from Superior Court of New Jersey,
             Law Division, Warren County, Indictment No.
             08-07-0265, Essex County, Indictment No. 11-
             08-0619, and Somerset County, Indictment No.
             14-06-0354.

             Joseph E. Krakora, Public Defender, attorney
             for appellants (Ruth E. Hunter, Designated
             Counsel, on the briefs).

             Christopher S. Porrino, Attorney General,
             attorney for respondents in A-0236-15 and A-
             1044-15 (Ian C. Kennedy, Deputy Attorney
             General, of counsel and on the briefs).

             Christopher S. Porrino, Attorney General,
             attorney for respondent in A-0984-15 (Carol
             M. Henderson, Deputy Attorney General, of
             counsel and on the brief).


PER CURIAM

      These three appeals, which we have consolidated for purposes

of   writing    one    opinion,   raise       issues   about   each   defendants'

entitlement to jail credits for time spent in out-of-state custody,

federal     custody,    or   while   on   probation      in    a   drug   treatment

program.1      The appeals were filed in reliance upon the Supreme

Court's opinion in State v. Hernandez, 208 N.J. 24, 36 (2011),



1
    All of the appeals were originally listed on our Excessive
Sentence Oral Argument calendar but then transferred to our plenary
calendar for full briefing.

                                          2                                 A-0236-15T3
which the Court subsequently modified and clarified in two later

cases.    See State v. C.H., 228 N.J. 111 (2017) and State v. Joe,

228 N.J. 125 (2017).     C.H. addressed jail credits in the context

of a court imposing consecutive sentences under two different

indictments, C.H., supra, 228 N.J. at 113, and Joe dealt with the

issues presented in these appeals, to wit, "whether incarceration

outside of New Jersey on out-of-state charges entitles a defendant

to jail credit pursuant to Rule 3:21-8."        Joe, supra, 228 N.J. at

126.     The Court concluded in Joe that incarceration that is not

based solely on New Jersey charges does not justify an award of

jail credits.     Id. at 135.   We therefore reach the same conclusion

as to defendants' claims in these appeals and affirm.           Also, we

affirm defendant Soto's sentence despite his arguments on appeal

that it was excessive.

       We summarize the facts relevant to defendants' contentions.

Defendant Michael Shorter pled guilty in 2011 to three counts of

an   indictment   that   charged   him   with   third-degree   controlled

dangerous substance (CDS) distribution offenses.        He was sentenced

in accordance with his plea agreement to "Drug Court," and he was

admitted into the program.         Had he not been admitted, he faced

five years in prison with a thirty-month parole disqualifier as

provided for in his plea agreement.         At sentencing, he received



                                     3                            A-0236-15T3
187 days jail credit for time spent in jail from the date of his

arrest to sentencing.

     Approximately    two    weeks     after    being    sentenced,      Shorter

entered   an   in-patient    drug    program,    but    nine    days   later    he

absconded.     In July 2013, Shorter was arrested and incarcerated

in North Carolina on unrelated charges and remained in custody in

that state through approximately the end of May 2015.                    He was

later   brought   before    the    court   in   New   Jersey,    where   he    was

sentenced to the five-year term subject to the thirty-month parole

disqualifier stated in his plea agreement.             He received additional

credit for time spent in jail in New Jersey awaiting sentencing.

     Shorter filed a motion for additional jail credits for time

served in North Carolina.         The court, citing Rule 3:21-8 and State

v. Hemphill, 391 N.J. Super. 67, 71 (App. Div.), certif. denied,

192 N.J. 68 (2007), denied the motion, reasoning that because

Shorter was in another jurisdiction on charges stemming from the

foreign jurisdiction, "credit toward the New Jersey charge does

not commence until the local charges are cleared."

     Defendant Carmelo Soto pled guilty in May 2015 to various

charges, including a weapons charge, relating to a burglary he

committed.     After pleading guilty, and while out on bail, he was

charged by federal authorities with committing a bank robbery and



                                       4                                 A-0236-15T3
placed in federal custody.2        The Law Division later sentenced Soto

on the burglary charge, in accordance with his plea agreement, to

five years with a forty-two month period of parole ineligibility.

The court awarded eighty days of jail credit for time spent in

state custody, but refused to allow jail credit for time spent in

federal custody.

     Defendant Michael Dieduardo pled guilty in May 2015 to a

third-degree    CDS    violation    he       committed   in     2008.   After       he

committed the offense, Dieduardo was imprisoned in New York for

approximately 259 days on charges arising in that state.                     He was

sentenced in New Jersey on August 14, 2015, on the CDS charge to

three years' probation with time served, concurrent to the period

of parole he was serving for his New York offenses.                     The court

refused   to   allow    jail   credit        for   any   time    Dieduardo     spent

incarcerated in New York.      The court stated, however, that because

Dieduardo was being sentenced to a probationary term, rather than

prison, the issue of jail credit was not determined, as its

application would abide his sentence to prison upon a violation

of probation, if any.

     On appeal, defendant Dieduardo argues:



2
    Soto was initially arrested and placed in county jail. His
charges were transferred to federal court, making him a federal
prisoner.

                                         5                                   A-0236-15T3
          DEFENDANT SHOULD HAVE RECEIVED JAIL CREDITS
          FOR THE TIME HE SPENT IN CUSTODY IN NEW YORK
          BETWEEN ARREST AND SENTENCING PURSUANT TO
          [HERNANDEZ, supra, 208 N.J. at 24].

     Defendant Shorter argues:

          POINT I

          DEFENDANT SHOULD HAVE RECEIVED JAIL CREDITS
          FOR THE TIME HE SPENT IN CUSTODY IN NORTH
          CAROLINA  BETWEEN   ARREST  AND  SENTENCING
          PURSUANT TO [HERNANDEZ, supra, 208 N.J. at
          24].

          POINT II

          DEFENDANT SHOULD HAVE RECEIVED JAIL CREDITS
          FROM 10/12/11 TO 10/21/11 FOR THE TIME HE
          SPENT IN A RESIDENTIAL TREATMENT PROGRAM
          PURSUANT TO N.J.S.A. 2C:35-14(f)(4).

     Defendant Soto argues:

          POINT I

          DEFENDANT SHOULD HAVE RECEIVED JAIL CREDITS
          FOR THE TIME HE SPENT IN FEDERAL CUSTODY
          BETWEEN ARREST AND SENTENCING PURSUANT TO
          [HERNANDEZ, supra, 208 N.J. at 24].

          POINT II

          DEFENDANT'S SENTENCE WAS EXCESSIVE.     U.S.
          Const. Amend. VI, XIV, N.J. Const. Art I, ¶¶
          1, 9, 10.

     "A challenge to an award or denial of jail credits, as

inconsistent with Rule 3:21-8, constitutes an appeal of a sentence

'not imposed in accordance with law.'"    State v. DiAngelo, 434

N.J. Super. 443, 451 (App. Div. 2014) (quoting State v. Rippy, 431


                                 6                         A-0236-15T3
N.J. Super. 338, 347 (App. Div. 2013), certif. denied, 217 N.J.

284 (2014)).     As such, we review the trial court's decision de

novo,     according   "no     special    deference    to     a    trial     judge's

'interpretation of the law and legal consequences that flow from

established facts[.]'"         Ibid. (alteration in original) (quoting

State v. McKeon, 385 N.J. Super. 559, 567 (App. Div. 2006)).

    Applying     this       standard,    we   first   turn       to    defendants'

arguments for jail credits for time spent in jurisdictions other

than New Jersey.        We conclude from our review that Dieduardo's

contention is not ripe for consideration3 because he may never

face imprisonment, which is when the issue of jail credit would

need to be addressed.         See R. 3:21-8; State v. Evers, 368 N.J.

Super. 159, 170-73 (App. Div. 2004) (stating jail credit is

applicable to the term of a custodial sentence and a sentence to

probation is not custodial).

    As to Soto's and Shorter's contentions, we find them to be

without    sufficient    merit   to     warrant   discussion      in    a   written

opinion.     R. 2:11-3(e)(2).         Suffice it to say, the Court made

clear in Joe "that defendants who are confined out of state on


3
   See Comm. to Recall Menendez v. Wells, 204 N.J. 79, 99 (2010);
see also Hamdan v. Rumsfeld, 548 U.S. 557, 720, 126 S. Ct. 2749,
2847, 165 L. Ed. 2d 723, 832 (2006) (alteration in original)
(citation omitted) (stating courts will not resolve claims that
are "contingent [upon] future events that may not occur as
anticipated, or indeed may not occur at all").

                                         7                                  A-0236-15T3
non-New Jersey charges are not entitled to jail credit for time

spent in pre-sentence custody." Joe, supra, 228 N.J. at 138. That

holding eviscerates defendants' arguments.

     We find equally without merit Shorter's contention that he

is entitled to jail credit for the time he spent in the drug

treatment program.     First, Shorter never raised the issue before

the sentencing court, and, therefore, it is not amenable to our

review.     See State v. Harris, 209 N.J. 431, 445 (2012) (stating

"[d]efendant may not present entirely new arguments" on appeal);

see also State v. Robinson, 200 N.J. 1, 20-22 (2009); Neider v.

Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).         Second, assuming

that, as Shorter alleges, he was sentenced to "Drug Court," under

"Track 1," N.J.S.A. 2C:35-14, rather than "Track 2," N.J.S.A.

2C:45-1, he still would not be entitled to jail credit for his

nine-day attendance at the in-patient program.                There was no

evidence that he "satisfactorily complied with the terms and

conditions of [Drug Court]," which is a condition to receiving

jail credit for time spent in the program.               N.J.S.A. 2C:35-

14(f)(4).

     Finally, we consider Soto's contention that his sentence was

excessive    because   "it   was   based   on   aggravating    factors   not

supported by the record."      The sentencing court found aggravating

factor three, N.J.S.A. 2C:44-1(a)(3) (likelihood that defendant

                                     8                              A-0236-15T3
will commit another offense), and factor nine, N.J.S.A. 2C:44-

1(a)(9) (need to deter defendant and others from violating the

law).   The court also found mitigating factor six, N.J.S.A. 2C:44-

1(b)(6) (defendant will compensate the victim of his conduct).

After making those findings, the court sentenced Soto in accordance

with his plea agreement.

     On appeal, Soto takes issue with the trial court rejecting

mitigating factor four4 because, according to Soto, "poverty is

clearly a substantial grounds tending to excuse conduct with

respect to the offense of burglary."   Accordingly, he argues "the

record supports a finding under N.J.S.A. 2C:43-6(b) that [he] be

sentenced a degree lower."   Soto further argues he "was eligible

for a waiver of the mandatory minimum parole ineligibility term

under the Graves Act waiver provision, N.J.S.A. 2C:43-6.2, as [he]

had no prior Graves Act offenses" and, therefore, the court should

reduce his parole ineligibility period.   We disagree.

     Our review of a trial court judge's sentence is limited.

"[T]rial judges are given wide discretion so long as the sentence

imposed is within the statutory framework."   State v. Dalziel, 182

N.J. 494, 500 (2005).   If a sentencing court provides the reasons



4
     Mitigating factor four provides, "There were substantial
grounds tending to excuse or justify the defendant's conduct,
though failing to establish a defense[.]" N.J.S.A. 2C:44-1(b)(4).

                                 9                          A-0236-15T3
for    its      sentence,   weighing      the   appropriate       aggravating     and

mitigating factors, see State v. Kruse, 105 N.J. 354, 363 (1987),

we will disturb its determination only if it represents a "clear

error of judgment that [] shocks the judicial conscience."                     State

v. Roth, 95 N.J. 334, 364 (1984).               In our review, we will presume

that "[a] sentence imposed pursuant to a plea agreement is . . .

reasonable because a defendant voluntarily '[waived] . . . his

right to a trial in return for the reduction or dismissal of

certain charges, recommendations as to sentence and the like.'"

State      v.   Fuentes,    217    N.J.   57,   70-71    (2014)    (alteration      in

original) (quoting State v. Davis, 175 N.J. Super. 130, 140 (App.

Div.), certif. denied, 85 N.J. 136 (1980)).

       Applying this deferential standard, we find Soto's arguments

to    be   without    merit   as    we    discern   no   abuse    of   the   court's

discretion or error in judgment in imposing the sentence called

for in Soto's plea agreement.             There is nothing about the sentence

that shocks our judicial conscience.

       Affirmed.




                                          10                                 A-0236-15T3
