                                NOT FOR PUBLICATION WITHOUT THE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-3057-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOMAS K. ARRINGTON,
a/k/a JONAS ARRINGTON,
and JAY DEE,

     Defendant-Appellant.
_____________________________

                    Submitted September 23, 2019 – Decided November 20, 2019

                    Before Judges Ostrer and Susswein.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment Nos. 11-08-
                    1289 and 13-03-0348.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Michele Erica Friedman, Assistant Deputy
                    Public Defender, of counsel and on the brief).

                    Christopher L.C. Kuberiet, Acting Middlesex County
                    Prosecutor, attorney for respondent (Patrick F.
                    Galdieri, II, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the brief).
             Appellant filed a pro se supplemental brief.

PER CURIAM

      Defendant, Jomas Arrington, claims in this appeal that he was improperly

denied jail credits for the 1031 days he was incarcerated in the Middlesex

County Corrections Center awaiting trial on State charges while a federal

detainer was pending for a violation of his federal supervised release. The

question concerning these jail credits was not litigated before the trial court.

Rather, the judge, prosecutor, and defense counsel accepted a statement in the

Presentence Investigation Report (PSR) that, "[a]ccording to jail credit

guidelines[,] 1 the def[endant] is not entitled to jail credit because he was being

held by a 'foreign jurisdiction.'"

      It is not clear to us what guidelines the PSR was referring to, but the record

shows that defendant was not being held by a foreign jurisdiction. Rather, he

was being detained in a New Jersey jail facing New Jersey charges for which he

was unable to make bail. In accordance with prevailing case law and the



1
    Defendant has moved to expand the record in an effort to locate the
"guidelines" referred to in the PSR. Because we are deciding this appeal based
on our interpretation and application of the relevant Court Rule and case law,
there is no need for us to review the guidelines. Accordingly, defendant's motion
is moot in light of the court's disposition of the underlying appeal on the existing
record.
                                                                            A-3057-17T1
                                         2
unambiguous terms of the Court Rule that governs the award of jail credit, Rule

3:21-8, we hold that defendant is entitled to credit for the 1031 days he was

incarcerated in the Middlesex County Corrections Center while the federal

detainer was active.

                                      I.

      Defendant was arrested and placed in pretrial custody in the Middlesex

County Corrections Center on criminal drug charges on March 31, 2011. On

August 25, 2011, a Middlesex County grand jury returned a twenty-three count

indictment charging defendant with various drug-related crimes, including

Leader of Narcotics Trafficking Network, first-degree possession of heroin with

intent to distribute, and second-degree conspiracy to distribute narcotics. In

2013 a Middlesex County grand jury returned a separate indictment charging

defendant with conspiracy to tamper with a witness, hinder apprehension, and

obstruct the administration of law.

      On April 11, 2011, while defendant was in custody in the Middlesex

County Corrections Center awaiting resolution of the initial charges, the federal

government lodged a detainer pertaining to an alleged violation of federal




                                                                         A-3057-17T1
                                           3
"probation." 2 On January 31, 2014, a federal judge sentenced defendant to time

served, resolving the federal allegation, and lifted the federal detainer o n

February 5, 2014.

      On March 20, 2014, defendant pled guilty to the second-degree conspiracy

count charged in the 2011 Middlesex County indictment and to the third -degree

witness tampering count charged in the 2013 Middlesex County indictment. He

was sentenced on December 11, 2017, pursuant to the persistent offender statute,

N.J.S.A. 2C:44-3(a), to a twelve-year prison term during which he must serve 3

years, six months without the possibility of parole.       The sentencing court



2
   As noted at the outset of this opinion, the issue concerning the 1031 days of
jail credits at the center of this appeal was not fully litigated and the record
concerning the federal detainer is scant. The PSR used the term "probation" in
reference to the federal detainer. The State has moved to expand the record in
order to establish that defendant had been charged with violating federal
"supervised release," not "federal probation," and also that supervised release
under federal law is the functional equivalent of parole under New Jersey law
and practice. In the alternative, the State seeks to have this case remanded to
allow the trial court to address the proper characterization and impact of the
federal detainer.
       For reasons we explain later in this opinion, there is no need for us to
compare and contrast the characteristics of supervised release under federal law
with the characteristics of parole under New Jersey law. In the particular
circumstances of defendant's pretrial detention, the resolution of this appeal does
not depend on whether defendant's violation of federal supervised release is
tantamount to a violation of parole, but rather on whether defendant was
detained in New Jersey on state charges during the pendency of the federal
detainer.
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                                        4
awarded 493 days of jail credit. The 493 days of jail credit does not include the

time defendant spent in the Middlesex County Corrections Center between April

11, 2011, and February 5, 2014—the 1031 days during which the federal

detainer was active.

       Defendant on appeal contends that:

             POINT I

             MR. ARRINGTON IS ENTITLED TO 1[]031 DAYS
             OF ADDITIONAL JAIL CREDIT FOR HIS
             PRETRIAL CUSTODY IN THE MIDDLESEX
             COUNTY JAIL, IRRESPECTIVE OF THE FEDERAL
             DETAINER LODGED AGAINST HIM DURING
             THAT IN-STATE INCARCERATION.

                   A. MR. ARRINGTON REMAINED
                   INCARCERATED AT THE MIDDLESEX
                   COUNTY CORRECTIONAL FACILITY
                   THROUGHOUT THE TIMEFRAME IN
                   QUESTION.     HE    WAS   NOT
                   INCARCERATED IN A "FOREIGN
                   JURISDICTION" SIMPLY BECAUSE A
                   FEDERAL DETAINER WAS LODGED
                   AGAINST HIM WHILE HE WAS IN
                   CUSTODY AT THE COUNTY JAIL.

                   B. NEITHER STATE V. JOE [3] NOR
                   STATE V. HERNANDEZ [4] SUPPORT
                   DEPRIVING MR. ARRINGTON OF THE
                   JAIL CREDIT IN QUESTION.

3
    228 N.J. 125 (2017).
4
    208 N.J. 24 (2011).
                                                                         A-3057-17T1
                                       5
                   C.  MR.  ARRINGTON'S  CREDIT
                   SHOULD   NOT   DEPEND  UPON
                   HAPPENSTANCE.

                                       II.

      Rule 3:21-8 provides that, "[t]he defendant shall receive credit on the term

of a custodial sentence for any time served in custody in jail or in a state hospital

between arrest and the imposition of sentence." Such credit for pre-sentence

custody is commonly referred to as "jail credits." Richardson v. Nickolopoulos,

110 N.J. 241, 242 (1988).        When Rule 3:21-8 applies, these credits are

mandatory, not discretionary. Hernandez, 208 N.J. at 37. These credits have a

constitutional foundation, moreover, and "were conceived as a matter of equal

protection or fundamental fairness and as a means of avoiding the double

punishment that would result if no such credits were not granted." Id. at 36.

Furthermore, Rule 3:21-8 expresses the public policy of this State and should be

liberally construed. See State v. Beatty, 128 N.J. Super. 488, 491 (App. Div.

1974).

      The State argues that the federal detainer in this case was based on a

violation of the federal equivalent of parole, and that this situation is thus

governed by the New Jersey Supreme Court's decision in State v. Black, 153

N.J. 438 (1998).     In that case, the Supreme Court addressed whether the


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                                             6
defendant was entitled to jail credit against his sentence on an absconding

conviction for the full time he spent in custody between the date of his arrest

and sentencing on that charge. Id. at 455–56. The Court began its analysis by

explaining that Rule 3:21-8 has been interpreted to require credit "only for 'such

confinement as is attributable to the arrest or other detention resulting from the

particular offense.'" Id. at 456 (quoting State v. Allen, 155 N.J. Super. 582, 585

(App. Div. 1978)). Applying that foundational principle, the Court ultimately

held that "when a parolee is taken into custody on a parole warrant, the

confinement is attributable to the original offense on which the parole was

granted and not to any offense or offenses committed during the parolee's

release." Id. at 461.

      The problem with the State's reliance on Black is that the "attribution"

rationale at the heart of that decision has since been replaced. As recently

reaffirmed in Joe, 228 N.J. at 136, the Supreme Court in Hernandez "cast aside"

the traditional attribution line of reasoning relied on in Black, simplifying jail

credit analysis by relying instead on the plain language of Rule 3:21-8. The

Court in Joe explained

            In Hernandez, this Court departed from the traditional
            attribution analysis for determining the correct
            application of jail credit. We clarified that "defendants
            are entitled to precisely what the Rule provides: credits

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                                        7
             against all sentences for 'for any time served in custody
             in jail or in a state hospital between arrest and the
             imposition of sentence' on each case."

             [228 N.J. at 134–35 (quoting Hernandez, 208 N.J. at
             28).]

      In Joe, the defendant was incarcerated outside of New Jersey on out-of-

state charges. Id. at 126–29. The Court ultimately denied the defendant's

request for jail credits, holding that, "if a defendant is incarcerated out of state

and the confinement is not due solely to the New Jersey charge, jail credit does

not apply." Id. at 135. The Court at the end of its opinion amplified its rationale,

explaining 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 (emphasis added) (quoting State v. Carreker, 172

N.J. 100, 116 (2002), abrogated by Hernandez, 219 N.J. at 28). The underscored

language informs us that when a defendant is confined in New Jersey awaiting

disposition of New Jersey charges, he or she is entitled under Rule 3:21-8 to

credit for every day he spends in county jail, without regard to a federal or out -

of-state detainer.

      In our present case, defendant was not confined out of state, but rather in

the Middlesex County Corrections Center. During every day of his protracted

                                                                            A-3057-17T1
                                         8
pretrial confinement there, he was facing New Jersey charges and was,

throughout this extended period, unable to post bail on those charges. We hold

that under the simplified, literal interpretation of Rule 3:21-8 that was embraced

in Hernandez and Joe, defendant is entitled to jail credit for all of the time he

served in the Middlesex County Corrections Center while awaiting disposition

of the State charges. In light of our holding in this case, we are not addressing

the arguments raised by defendant in his supplemental pro se brief. We remand

this case to the sentencing court to award 1031 extra days of jail credit. We do

not retain jurisdiction.

      Reversed and remanded.




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