                                        SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

                       State v. Isiah T. McNeal (A-14-18) (081112)

Argued March 26, 2019 -- Decided May 2, 2019

PER CURIAM

       Defendant Isiah T. McNeal argues that the amount of jail credit he was told he
would receive was misrepresented and he should be permitted to move to withdraw his
guilty plea. Defendant entered into a plea agreement as a global resolution of the
numerous indictments returned against him. Defense counsel represented that defendant
was told he would be entitled to 2438 days’ jail credit. The State disputed that assertion.
The record shows that the plea court then thoroughly discussed the issue with defendant,
who affirmed that he was not entering the plea agreement assuming the 2438 days of jail
credit would be applied to the period of parole ineligibility he faced for an aggravated
assault charge. Defendant’s plea was accepted, and jail credits were assessed per time
accrued on each charge. Defendant argued that all of the 4727 days of jail credit should
be applied to the aggravated assault charge even though he had accrued only 1012 days
on that charge. On appeal, the Appellate Division held that, “[w]hile misrepresentations
regarding jail credit may upend a . . . plea, a review of the record in its entirety
contradicts defendant’s claim.” The Court granted certification. 235 N.J. 450 (2018).

HELD: Defendant was repeatedly and explicitly warned that the estimated 2438 days of
jail credit may not affect his period of parole ineligibility and that he should not enter the
plea agreement expecting as much. Defendant cannot now credibly argue that he relied
on a belief that all 2438 days would be applied to his term of parole ineligibility.

1. Incorrect calculation of jail credits may impact the voluntariness of a plea. Future
courts should take note of the effective steps taken by the plea court here. It was made
clear to defendant that the jail credits should not be presumed to apply to his parole
ineligibility period. That notion was clearly stated no less than three times, to which the
defendant affirmatively registered his understanding. (pp. 5-8)

       AFFIRMED.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in this opinion.


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       SUPREME COURT OF NEW JERSEY
             A-14 September Term 2018
                       081112


                 State of New Jersey,

                Plaintiff-Respondent,

                          v.

            Isiah T. McNeal, a/k/a Isiah
           T. McNeil, and Isaiah McNeal,

                Defendant-Appellant.

        On certification to the Superior Court,
                  Appellate Division.

      Argued                       Decided
   March 26, 2019                 May 2, 2019


Marcia Blum, Assistant Deputy Public Defender, argued
the cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Marcia Blum, on the brief).

Gretchen A. Pickering, Assistant Prosecutor, argued the
cause for respondent (Jeffrey H. Sutherland, Cape May
County Prosecutor, attorney; Gretchen A. Pickering, of
counsel and on the briefs).

Regina M. Oberholzer, Deputy Attorney General,
argued the cause for amicus curiae Attorney General
of New Jersey (Gurbir S. Grewal, Attorney General,
attorney; Regina M. Oberholzer, of counsel and on the
brief).


                          1
                                 PER CURIAM


      Defendant Isiah T. McNeal entered into a plea agreement as a global

resolution of the numerous indictments returned against him. To dispense with

an indictment for attempted murder, defendant agreed to plead guilty to

second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1). To

dispose of four other indictments, he agreed to plead guilty to third-degree

theft by unlawful taking, contrary to N.J.S.A. 2C:20-3(a); third-degree

conspiracy to manufacture or distribute a controlled dangerous substance,

contrary to N.J.S.A. 2C:35-5(a)(1); fourth-degree throwing bodily fluids at law

enforcement officers, contrary to N.J.S.A. 2C:12-13; and fourth-degree riot,

contrary to N.J.S.A. 2C:33-1(a). The plea agreement provided defendant

would be sentenced to an eight-year term of imprisonment subject to the No

Early Release Act’s eighty-five percent parole disqualifier, N.J.S.A. 2C:43-

7.2, for the aggravated assault charge, and a concurrent thirteen-year flat term

of imprisonment for the other four charges.

      At the first plea hearing, defendant repudiated the agreement, because of

an apparent misunderstanding about how the concurrent thirteen-year sentence

would affect his period of parole ineligibility. The record shows defendant




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thought the thirteen-year sentence would “override” the eight-year sentence

and, ostensibly, that he would not be subject to the parole disqualifier.

      Two days after abandoning the plea agreement, defendant entered into a

new plea agreement that was identical to the first, save for a two-year increase

in his sentence on the aggravated assault charge. At this second plea hearing,

defense counsel informed the court “that there was a number given to Mr.

McNeal specifically that he would be entitled to 2438 days’ jail credit.”

Defense counsel further stated that it had been represented to him and

defendant that defendant would be entitled to the 2438 days of jail credit.

      The State responded that, while defendant was entitled to whatever jail

credit the law provided, it did not make sense that he would get credit for six

years when he had been held in jail for less than three years. The State opined

that the number given to defendant may have been a miscalculation, and said it

would not agree that defendant would receive that amount of credit. The State

also noted that it believed defendant would have to serve the entire period of

parole ineligibility. As the following excerpts show, the court then thoroughly

discussed the issue with defendant, who affirmed that he was not entering the

plea agreement assuming the 2438 days of jail credit would be applied to the

period of parole ineligibility:

             The Court: So I cannot represent to you right now
             whether the jail credit, which is the jail credit that will
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-- that has been provided to me is that 2,438. I cannot
represent to you how that will affect you on this
sentence and, in particular, the parole ineligibility. Do
you understand that?

Defendant: Yeah.

The Court: You understand in other words that you’re
entering into this plea negotiation -- if I accept it --
understanding that nobody’s making you any promises
other than the fact that that is your jail credit. Even --
it’s going to actually be more by the time your sentence
-- your sentence it [sic] put through.

Defendant: Yes, I understand that.

The Court: Okay. So . . . any plea . . . negotiations that
you’re entering into should not be entered into by you
thinking that 2,438 days comes out to 6 years and
you’re -- that’s all going to go towards your parole
ineligibility. It may; I just can’t represent it to you, and
I don’t want you to accept this plea thinking that
anybody is telling you that it is going to be applied to
your parole ineligibility. Do you understand that?

Defendant: Yes.

....

The Court: Okay. So again, Mr. McNeal, you’re
entering into this guilty plea and you understand that
there’s no representation made as to how those credits
would be applied in particular to your sentence and/or
to your parole ineligibility; is that correct?

Defendant: Yes.


                             4
      Defendant’s plea was accepted, and at sentencing the presentence report

listed the accrued jail credit for each of the final charges separately, amounting

to a total of 4727 days. Defendant argued that all of the credit should be

applied to the aggravated assault charge even though he had accrued only 1012

days on that charge according to the presentence report. The court applied

3715 days of jail-time credit to the thirteen-year flat sentence, and 1012 days

of credit to the ten-year aggravated assault charge. Defendant did not object.

      Defendant appealed, alleging the amount of jail credit he was told he

would receive was misrepresented and he should be permitted to move to

withdraw his guilty plea. The Appellate Division rejected defendant’s

argument stating, “While misrepresentations regarding jail credit may upend a

. . . plea, a review of the record in its entirety contradicts defendant’s claim.”

We granted defendant’s petition for certification, 235 N.J. 450 (2018), and

now affirm.

                                         II.

      “A defendant has the right not to be ‘misinformed’ about a material

element of a plea agreement and to have his or her ‘reasonable expectations’

fulfilled.” State v. Bellamy, 178 N.J. 127, 134 (2003) (citing State v. Howard,

110 N.J. 113, 122 (1988); State v. Nichols, 71 N.J. 358, 361 (1976)).

“Generally, a defendant seeking to vacate a plea must show that he or she was


                                         5
misinformed of the terms of the agreement or that his or her reasonable

expectations were violated.” Id. at 134-35. “Defendant is also entitled to

withdraw a guilty plea if the court imposes a harsher sentence than that

contemplated by the plea agreement.” Id. at 135.

      Jail credits are a means for avoiding double punishment and

safeguarding equal protection and fundamental fairness. State v. Hernandez,

208 N.J. 24, 36 (2011). An incorrect calculation of a defendant’s jail credits

may impact the voluntariness of the guilty plea. See Sheil v. State Parole Bd.,

244 N.J. Super. 521, 528 (App. Div. 1990) (remanding for a hearing where

defendant reasonably may have expected his period of parole ineligibility could be

reduced by gap-time credits); State v. Alevras, 213 N.J. Super. 331, 338 (App.

Div. 1986) (“[I]n certain circumstances, a defendant’s misunderstanding of

credits may affect his understanding of the maximum exposure. Hence, a

guilty plea based on this misunderstanding may fail to satisfy the constitutional

requirement that a plea be voluntarily, intelligently and knowingly entered

. . . .”). In State v. C.H., we curbed double-counting by clarifying that jail

credits must be applied day-for-day to the front-end of the sentence, including

any period of parole ineligibility. 228 N.J. 111, 117, 121 (2017).




                                         6
                                       III.

      We agree with the Appellate Division, here, that defendant was

repeatedly and explicitly warned that the estimated 2438 days of jail credit

may not affect his period of parole ineligibility and that he should not enter the

plea agreement expecting as much.

      Taken as a whole and noting particularly the strong and clear message

sent from the judge at the end of the colloquy before accepting the plea, the

court curbed any effective misrepresentation that defendant claimed to exist in

this plea transcript. Future courts should take note of the effective steps taken

by the plea court here. It was made clear to defendant that the jail credits

should not be relied upon to assume his parole ineligibility period. That notion

was clearly stated no less than three times, to which the defendant

affirmatively registered his understanding. While there was one statement --

“[N]obody’s making you any promises other than the fact that that is your jail

credit” -- which could, out of context, be viewed as misleading, the statement

did not contradict the judge’s repeated and unequivocal point that the

defendant should not presume that the provided jail credit would apply to his

parole ineligibility period -- regardless of what that jail credit might be. And

the exchange ended with that clear message: “I don’t want you to accept this




                                        7
plea thinking that anybody is telling you that [the jail credits are] going to be

applied to your parole ineligibility.”

      Defendant affirmed his understanding and did not object later when the

presentence report segregated the credits between the charges or when the

court declined to apply the entire amount to the aggravated assault charge.

Defendant cannot now credibly argue that he relied on a belief that all 2438

days would be applied to his term of parole ineligibility. Any such reliance

despite the court’s clear admonition would have been unreasonable.

      Furthermore, defendant ultimately obtained 4727 days of jail credit

despite only spending a total of 1060 days in prison. As we explained in C.H.,

defendants are not entitled to more credit than the actual period of

incarceration served. Defendant enjoyed a substantial windfall on his thirteen-

year flat sentence due to the more-than-triple-counting of his actual prison

stay. If anything, defendant’s ultimate sentence was better than he reasonably

could have expected.

                                         IV.

      The judgment of the Appellate Division is affirmed.



      CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in this
opinion.


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