                        NOT FOR PUBLICATION WITHOUT THE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-0397-17T3

STATE OF NEW JERSEY,

        Plaintiff-Appellant/
        Cross-Respondent,

v.

RAHGEAM I. JENKINS,

     Defendant-Respondent/
     Cross-Appellant.
____________________________

              Submitted August 21, 2018 – Decided August 28, 2018

              Before Judges Messano and Geiger.

              On appeal from Superior Court of New Jersey,
              Law Division, Ocean County, Indictment No.
              97-05-0467.

              Joseph D. Coronato, Ocean County Prosecutor,
              attorney     for    appellant/cross-respondent
              (Samuel   J.   Marzarella,   Chief   Appellate
              Attorney,   of   counsel;   Shiraz  I.   Deen,
              Assistant Prosecutor, on the briefs).

              Joseph E. Krakora, Public Defender, attorney
              for respondent/cross-appellant (Lauren S.
              Michaels, Assistant Deputy Public Defender, of
              counsel and on the brief).

PER CURIAM
     The State of New Jersey appeals from that portion of a

September 6, 2017 order awarding defendant Rahgeam Jenkins 154

days of discretionary jail credit.           Defendant cross-appeals from

the refusal of the prosecutor to join in his Rule 3:21-10(b)(3)

motion   for   reduction   of    sentence.     We   reverse   the    award    of

additional discretionary jail credit and affirm the denial of the

remaining aspects of defendant's motion.

     We derive the following facts and complex procedural history

from the record. On April 17, 1996, defendant robbed two employees

of an auto body shop in Point Pleasant (the first robbery). Police

found a fingerprint at the scene.         On June 7, 1996, defendant was

arrested for a separate robbery he committed in Dover Township on

May 29, 1996 (the second robbery).         Defendant admitted the gun the

police found was his.      The gun had defendant's fingerprint on it.

     On November 8, 1996, defendant pled guilty and was sentenced

for the second robbery.         He received 155 days of jail credit for

the time he spent in jail from June 7, 1996 to November 8, 1996.

     A grand jury returned an indictment in March 1997 charging

defendant      with   third-degree    aggravated     assault    on     a     law

enforcement officer, N.J.S.A. 2C:12-1(b)(5), involving an incident

unrelated to the two robberies.           Two months later, a grand jury

returned a direct indictment charging defendant with two counts

of first-degree armed robbery, N.J.S.A. 2C:15-1, for the first

                                      2                               A-0397-17T3
robbery.   The delay in presenting the first robbery to the grand

jury was caused, at least in part, by the time it took to complete

the fingerprint analysis.

     On March 26, 1998, following a jury trial, defendant was

found guilty of both counts of armed robbery for the first robbery.

The following day he pled guilty to the third-degree assault on a

law enforcement officer.      In exchange for the plea, the State

agreed to recommend the sentence not exceed four years and be

concurrent with the sentence imposed on the robbery convictions.

     On June 15, 1998, pursuant to N.J.S.A. 2C:43-6, defendant was

sentenced as a second-time Graves Act offender to concurrent terms

of sixty years subject to a twenty-year parole disqualifier on

each of the robbery convictions and a concurrent four-year term

on the assault conviction.      Defendant did not receive any jail

credit or gap-time on the robbery counts.    Defendant appealed his

conviction and sentence.    We affirmed the conviction and sentence,

but remanded for calculation of gap-time credit. State v. Jenkins,

No. A-0329-98 (App. Div. Nov. 5, 1999).     The Supreme Court denied

certification.   State v. Jenkins, 163 N.J. 396 (2000).   On remand,

defendant received 585 days of gap-time credit for the period from

November 8, 1996 to June 15, 1998, the day of his sentencing.

     Defendant then filed a petition for post-conviction relief

(PCR), which was denied on July 30, 2001.    Defendant appealed.    We

                                  3                         A-0397-17T3
affirmed, finding defendant's contentions without merit.      State

v. Jenkins, No. A-6761-00 (App. Div. Nov. 22, 2002).   The Supreme

Court denied certification. State v. Jenkins, 177 N.J. 573 (2003).

     Defendant filed a second PCR petition on October 8, 2003.     We

affirmed the denial of the second PCR petition as procedurally

barred under Rule 3:22-5.    State v. Jenkins, No. A-2115-03 (App.

Div. Oct. 29, 2004).      The Supreme Court denied certification.

State v. Jenkins, 182 N.J. 628 (2005).

     On December 16, 2004, defendant moved to correct an illegal

sentence. We affirmed the denial of the motion finding defendant's

reliance on State v. Franklin, 184 N.J. 516, 540 (2005), misplaced

since Franklin was given only pipeline retroactivity.    State v.

Jenkins, No. A-3620-05 (App. Div. June 13, 2008) (slip op. at 2).

We also found that even if Franklin applied, defendant's argument

would fail.   Id. at 3.    The Supreme Court denied certification.

State v. Jenkins, 202 N.J. 348 (2010).

     On September 16, 2010, defendant filed a petition for a writ

of habeas corpus in federal court.    Of the fourteen claims made

by defendant, three pertained to his sentence.    The petition was

denied for lack of merit by Judge Mary L. Cooper on June 11, 2014.

     On September 19, 2016, defendant moved, again, to correct an

illegal sentence.   In his pro se brief, defendant argued: (1) his

conviction was unconstitutional because the indictment lacked

                                 4                         A-0397-17T3
specificity and the verdict was rendered without the jury answering

an interrogatory; (2) the conviction violated the rule of lenity;

and (3) the trial court erred by failing to conduct a hearing

pursuant to N.J.S.A. 2C:44-6(e).1

     Defendant was appointed counsel who submitted a supplemental

letter brief. Through counsel, defendant contended he was entitled

to discretionary jail credit from June 7, 1996 to November 7,

1996, the time defendant spent in jail pending the outcome of the

charges pertaining to the second robbery (Ind. No. 96-08-0743).

Defendant argued that if he had been charged with the first robbery

when it happened on April 17, 1996, or any time before June 7,

1996, he would have been entitled to jail credit for that time

period. However, because he was not charged with the first robbery

until May 13, 1997, after he had already been charged, pled guilty,

and sentenced for the second robbery, he did not receive any jail

credit on the first robbery from June 7, 1996 to November 7, 1996.

     Relying on State v. Grate, 311 N.J. Super. 456, 458 (App.

Div. 1998), defendant argued that under principles of fundamental

fairness, he should receive discretionary jail credit for that


1
   Defendant did not brief or argue these issues in his cross-
appeal.   We deem them waived or abandoned.      See Pressler &
Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2018)
(citing Gormley v. Wood El, 218 N.J. 72, 95 n.8 (2014); Dep't of
Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 505 n.2 (App.
Div. 2015)).

                                 5                         A-0397-17T3
time period.    The prosecutor did not join in the motion.    Over the

State's vehement objection, the motion judge awarded defendant 154

days discretionary jail credit.

     In his oral decision, the motion judge noted defendant was

represented by an attorney at the trial level who was later

disbarred.     The judge emphasized defendant was not charged with

the first robbery until approximately one year after it occurred

even though "the State possessed all of the requirements and all

of the facts" to charge and prosecute him for the first robbery.

During the time period in question defendant was incarcerated due

to the subsequent robbery arrest.     The judge also noted defendant

"has made some very significant strides in redeeming himself and

becoming someone that can go out and lead a fruitful life" after

he is released.     Considering the totality of the circumstances,

the motion judge awarded discretionary jail credits to defendant,

concluding it would be a manifest injustice for defendant not to

receive the jail credit for that time period.

     The remainder of defendant's motion was denied.         The judge

stayed the award of jail credit pending appeal.     This appeal and

cross-appeal followed.

     The State argues defendant was not entitled to any jail credit

on the first robbery.    In his cross-appeal, defendant argues the



                                  6                           A-0397-17T3
prosecutor abused his discretion in refusing to join in defendant's

sentence reduction motion.

       We listed the appeal originally on our Excessive Sentence

Oral    Argument   (ESOA)    calendar.        However,       shortly   before     the

scheduled argument date, defense counsel requested the appeal be

transferred to the plenary calendar due to the complexity of the

issues raised in the cross-appeal and the corresponding need to

set forth the factual circumstances of the case.                    We transferred

the appeal to the plenary calendar and ordered the parties to

brief the issues.

       Defendant   contends      the   motion        judge     properly      awarded

discretionary jail credits based on considerations of fairness,

justice, fair dealings, and the general equities of the situation,

citing numerous opinions recognizing discretionary jail credits.

We disagree.

       Discretionary jail credits are not based on statute or court

rule.      Rather,     the   award     of     such    credits       "'is    at   best

discretionary, based upon general equities of the situation, and

is not a matter of due process' or right."                   State v. Hill, 208

N.J. Super. 492, 495 (App. Div. 1986) (quoting State v. Marnin,

108 N.J. Super. 442, 445 (App. Div. 1970)); see also State v.

Hemphill, 391 N.J. Super. 67, 70 (App. Div. 2007) (holding that

even    where   jail    credit    is    not     mandated       by    Rule    3:21-8,

                                        7                                   A-0397-17T3
discretionary jail credit "may nevertheless be awarded based on

considerations of fairness, justice and fair dealings").

       Defendant acknowledges Rule 3:21-8 did not mandate the jail

credit he was awarded.          Following the award of appropriate gap-

time   credits,      defendant's   sentence   was   not   in   excess     of    or

otherwise not in accordance with the sentence authorized by law

or otherwise illegal.       See State v. Murray, 162 N.J. 240, 246-247

(2000) (narrowly defining illegal sentences as "sentences that

exceed the penalties authorized by statue for a specific offense"

and sentences "not imposed in accordance with law").

       The award of discretionary jail credits constitutes a change

in sentence.      See Breeden v. N.J. Dep't of Corr., 132 N.J. 457,

470 (1993).     Thus, a prisoner claiming such credits should apply

"to the sentencing court pursuant to the procedures set forth in

Rule 3:10 (governing reduction of, or change in, sentence)" for

resentencing.      Ibid.   Rule 3:21-10 permits a reduction or change

in   sentence   in    limited   circumstances   subject    to   strict       time

constraints.      Subsection (a) contains a sixty-day time limitation

for filing and a seventy-five-day requirement for disposition of

applications to reduce or change a sentence:

                 (a)   Time.    Except as provided in
            paragraph (b) hereof, a motion to reduce or
            change a sentence shall be filed not later
            than 60 days after the date of the judgment
            of conviction. The court may reduce or change

                                      8                                 A-0397-17T3
            a sentence, either on motion or on its own
            initiative, by order entered within 75 days
            from the date of the judgment of conviction
            and not thereafter.

            [R. 3:21-10(a).]

The only exceptions to the above rule are enumerated in subsection

(b).     Pertinent    to   this   appeal     is   subsection   (b)(3),   which

provides:

                 (b) Exceptions. A motion may be filed
            and an order may be entered at any time . . .
            (3) changing a sentence for good cause shown
            upon the joint application of the defendant
            and prosecuting attorney . . . .

       Motions to correct an illegal sentence may be filed at any

time.    R. 3:21-10(b)(5); State v. Zuber, 227 N.J. 422, 437 (2017).

"An 'illegal sentence' is one 'not imposed in accordance with the

law.'"    Zuber, 227 N.J. at 437 (quoting State v. Acevedo, 205 N.J.

40, 45 (2011)). Defendant does not claim his sentence was illegal.

Because defendant's sentence was not illegal, he was required to

file the motion "not later than [sixty] days after the date of the

judgment of conviction" unless the prosecutor joined in the motion.

R. 3:21-10(a) and (b).      The prosecutor did not join in the motion.

       Defendant argues his application should be considered timely

under    subsection   (b)(3),     claiming    the   prosecutor   abused    his

discretion in refusing to join in his motion, contending the




                                      9                              A-0397-17T3
decision was arbitrary and capricious.      We are unpersuaded by this

argument.

     "[D]efendant may not just challenge the prosecutor's decision

in a conclusory manner; he must make a showing of arbitrariness

constituting an unconstitutional discrimination or denial of equal

protection   constituting   a   'manifest   injustice.'"    State     v.

Alvarez, 246 N.J. Super. 137, 148 (App. Div. 1991).        He has not

met that burden.   Accordingly, he did not qualify for relief under

Rule 3:21-10(b)(3).

     "Ordinarily, the time limitations of [Rule] 3:21-10(a) must

be strictly enforced," State v. E.R., 273 N.J. Super. 262, 266-67

(App. Div. 1994) (citations omitted), and "cannot be enlarged,"

State v. Tumminello, 70 N.J. 187, 192 n.1 (1976) (citing R. 1:3-

4(c)); see also Pressler & Verniero, cmt. 1 on R. 3:21-10(a) ("The

time period provided by the rule is non-relaxable pursuant to R.

1:3-4(c)." (citations omitted)).

     Defendant filed his motion on September 16, 2016, more than

eighteen years after the date of the judgment of conviction, and

more than sixteen years after the judgment of conviction was

modified to award gap time.        Defendant filed numerous other

applications during the intervening years.      He has not offered any

explanation for this inordinate delay.



                                  10                          A-0397-17T3
     Because the prosecutor did not join in the application and

defendant did not otherwise qualify for relief under subsection

(b), the motion was time-barred.       Consequently, the motion judge

had "no authority under the rule to enter an order reducing or

changing the sentence."    Tumminello, 70 N.J. 187, 192 n.1.         Thus,

the motion court erred by awarding the discretionary jail credits.

We find insufficient merit in defendant's argument to warrant

further discussion.    R. 2:11-3(e)(2).

     In sum, we reverse the 154-day discretionary jail credit

award.   The   trial   court   shall   enter   an   amended   judgment    of

conviction consistent with this opinion.        We affirm the denial of

the remaining aspects of defendant's motion.

     Reversed in part and affirmed in part.




                                  11                              A-0397-17T3
