APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6297-04T4
February 5, 2007
APPELLATE DIVISION
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES HEMPHILL,
Defendant-Appellant.
_____________________________________
February 5, 2007
Submitted: September 27, 2006 – Decided:
Before Judges Stern, A. A. Rodríguez and Collester.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County,
93-05-0373.
Yvonne Smith Segars, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy
Public Defender, of counsel and on the brief).
Thomas F. Kelaher, Prosecutor, attorney for respondent (Samuel Marzarella, Senior Assistant Prosecutor, of
counsel; William Kyle Meighan, Assistant Prosecutor, on the brief).
The opinion of the court was delivered by
A. A. RODRÍGUEZ, P.J.A.D.
One of the issues presented in this appeal is whether defendant, James Hemphill,
is entitled to receive credit for time spent in custody, on this charge,
in the United Kingdom. We hold that defendant is entitled to such credit
for this period.
In January 1994, defendant entered a negotiated plea of guilty to second degree endangering the welfare of a child (a thirteen-year-old girl), N.J.S.A. 2C:24-4a. He admitted at the plea hearing that for a two-year period he sexually abused the girl by touching her breasts. The State agreed to recommend that defendant be sentenced as a third degree offender and to dismiss related charges. Defendant remained on bail pending sentence. He then fled to Scotland prior to sentence. According to the State, he lived there under an assumed name for almost a decade. Eventually, defendant was arrested in Scotland on a warrant stemming from this charge.
Defendant alleges that he was held at the Edinburgh Prison in Scotland for about six months, until he was extradited to New Jersey. Then he was lodged in the Ocean County jail pending sentence.
In anticipation of sentence, Mark Frank, PhD, a clinical psychologist, examined defendant at the request of the Adult Diagnostic and Treatment Center (ADTC). Dr. Frank opined that defendant's conduct was compulsive and repetitive, therefore, it came within the purview of N.J.S.A. 2C:47-3. Defendant challenged the ADTC's conclusion and presented the report of his own expert, John J. Verdon, Jr., M.D., a psychiatrist. Dr. Verdon opined that defendant's conduct was not compulsive. Following a Horne See footnote 1 hearing, the judge concluded that defendant's conduct required that he be sentenced as a sex offender pursuant to N.J.S.A. 2C:47-3. The judge imposed a five-year term to be served at the ADTC and ordered defendant to comply with Megan's Law, N.J.S.A. 2C:7-1 to -19. The judge gave defendant a 197-day jail credit for time spent in custody in the Ocean County jail. Defendant asked for credit for time spent in custody in Scotland. The State objected. Without addressing the issue, the judge denied credits for custodial time spent in Scotland.
[At the direction of the court, the discussion of Section II, concerning the Horne hearing, has been omitted from the published version of the opinion.]
The second contention is that:
DEFENDANT IS ENTITLED TO ADDITIONAL JAIL CREDIT FOR TIME SPENT IN CUSTODY PENDING EXTRADITION.
We agree.
The pertinent rule states:
Credit for Confinement Pending Sentence
The 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.
[R. 3:21-8.]
The credit is only permissible for a period of incarceration attributable to the
crime for which the sentence is imposed. In re Hinsinger,
180 N.J. Super. 491, 499 (App. Div.), certif. denied, 88 N.J. 494 (1981). The credit is
given for time served between the date of arrest and the imposition of
sentence. State v. Garland,
226 N.J. Super. 356, 361 (App. Div.), certif. denied,
114 N.J. 288 (1988). When the rule applies, the credit is mandatory. State
v. Grate,
311 N.J. Super. 544, 548 & n.3, 549-50 (Law Div. 1997),
aff’d,
311 N.J. Super. 456, 458 (App. Div. 1998) (citation omitted). Where the
rule does not apply, the credit may nevertheless be awarded based on considerations
of fairness, justice and fair dealings. Ibid.
The credit is impermissible if the confinement is due to service of a
prior-imposed sentence or another charge. State v. Hugley,
198 N.J. Super. 152, 160
(App. Div. 1985) (citing State v. Council,
137 N.J. Super. 306, 308-09 (App.
Div. 1975)); State v. Lynk,
166 N.J. Super. 400 (Law Div. 1979). A
defendant is entitled to credit for time spent in another state's penal institution
as a result of a detainer filed by New Jersey authorities on the
matter resulting in the sentence. State v. Beatty,
128 N.J. Super. 488, 490-91
(App. Div. 1974). In Beatty, the court expressly rejected the argument that "R.
3:21-8 applies only to time spent in custody in New Jersey." Id. at
491. The court stated that, "R. 3:21-8 expresses the public policy of the
State and should be liberally construed." Ibid.
We see no reason why the rule should not apply when a defendant
is held in a foreign country on a New Jersey detainer with respect
to the matter resulting in the sentence. From all parties' perspectives, confinement in
another county, state or a foreign country fall within R. 3:21-8, as long
as defendant is not being held on other charges.
Accordingly, defendant is entitled to additional credit for time spent in custody in
Edinburgh Prison. Therefore, the sentence is affirmed. However, the matter is remanded to
the Law Division, Ocean County for the entry of an amended judgment of
conviction. The judge shall conduct a hearing to determine if, in fact, defendant
was confined in Scotland solely on this charge and for what period. The
judge shall then enter an amended judgment of conviction. The judge should give
a statement of reasons, including findings of fact and conclusions of law, with
respect to the subject of credits, where the issue is in dispute and
has an impact on the sentence. State v. Alevras,
213 N.J. Super. 331,
339 (App. Div. 1986).
Affirmed and remanded.
Footnote: 1
State v. Horne,
56 N.J. 372, 375 (1970).
A-