STATE OF NEW JERSEY VS. ROBERT RUCKERÂ (13-09-1176 AND 13-09-1178, MIDDLESEX COUNTY AND STATEWIDE) ( 2017 )


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                          APPROVAL OF THE APPELLATE DIVISION
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             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-3295-14T1
    
    STATE OF NEW JERSEY,
    
            Plaintiff-Respondent,
    
    v.
    
    ROBERT RUCKER,
    
            Defendant-Appellant.
    
    _________________________________
    
                  Submitted November 1, 2016 – Decided June 8, 2017
    
                  Before Judges Leone and Vernoia.
    
                  On appeal from Superior Court of New Jersey,
                  Law Division, Middlesex County, Indictment
                  Nos. 13-09-1176 and 13-09-1178.
    
                  Joseph E. Krakora, Public Defender, attorney
                  for appellant (Rochelle Watson, Assistant
                  Deputy Public Defender, of counsel and on the
                  briefs).
    
                  Andrew C. Carey, Middlesex County Prosecutor,
                  attorney for respondent (Brian D. Gillet,
                  Deputy First Assistant Prosecutor, of counsel
                  and on the brief).
    
    PER CURIAM
    
            Defendant     Robert    Rucker    appeals    from    his   judgments       of
    
    conviction dated October 15 and 17, 2014.                Defendant pled guilty
    to unlawfully possessing a .45 caliber Glock handgun and to
    
    possessing it despite having a Michigan felony conviction.                    He
    
    challenges the suppression ruling and aspects of his sentence.                We
    
    affirm his convictions, vacate his sentence in part, and remand.
    
                                           I.
    
           The following facts were found by the suppression court or
    
    where indicated were testified to at the suppression hearing.                 On
    
    July 8, 2013, Lieutenant Edgar Velasquez of the Piscataway Township
    
    Police was contacted by a homicide detective in the Detroit police
    
    department.      The   detective      informed   Velasquez      that   Detroit
    
    authorities    had   issued     an   arrest   warrant   for    defendant    for
    
    homicide, that he was a fugitive, and that he was believed to be
    
    in possession of a handgun which was the murder weapon.                     The
    
    detective     also   informed    Velasquez     defendant      was   "currently
    
    staying" in Piscataway in a Motel Six in Room 240 and that the
    
    length of stay was July 4 to July 18, 2013.1            The detective added
    
    defendant was believed to be with a woman.              The detective told
    
    Velasquez the room was registered under the name "Anna Cunnegan."2
    
    
    
    
    1
      Velasquez initially stated, and the court's opinion repeats,
    that the length of stay was to July 14, but he corrected it to
    July 18 after consulting his report.
    2
        This alleged name is spelled in various ways in the record.
    
                                           2                               A-3295-14T1
         Piscataway officers obtained a copy of the Detroit arrest
    
    warrant for defendant.    They also confirmed the Piscataway Motel
    
    Six's Room 240 was registered under the name "Anna Cunnegan"
    
    through July 18, 2013.   The suppression court found the Piscataway
    
    officers corroborated the "[h]otel, length of stay, name of person,
    
    [and] room."
    
         Piscataway used its SWAT team to execute the arrest warrant.3
    
    One part of the team listened through the door and heard a male
    
    voice.    According to Lieutenant Velasquez, the officers attempted
    
    to enter the room surreptitiously using a key card, but the door's
    
    security latch was engaged and the unsuccessful entry made noise.
    
    They used a ram to get through the door and employed a flash-bang
    
    device.    They found defendant and a woman, J.S.4   Defendant and
    
    J.S. were ordered to a prone position on the floor with their arms
    
    outstretched in front of them.
    
         Patrol officer Allen Barboiu entered the room with the second
    
    part of the SWAT team.   He saw a rolled-up air mattress within one
    
    to two feet of defendant's outstretched hands.   Barboiu testified
    
    defendant was not handcuffed, the mattress was within his grasp,
    
    
    
    3
      Velasquez testified "it was a high risk arrest warrant, because
    . . . it's a homicide suspect, with a weapon in his possession."
    4
     We use her initials because the indictment was dismissed against
    her after defendant pled guilty and was sentenced.
    
                                      3                         A-3295-14T1
    and "his head was actually lifted and he had his eyes on" the
    
    rolled-up air mattress. Because of defendant's focus and proximity
    
    to the rolled-up air mattress, Barboiu secured and unrolled it,
    
    uncovering a concealed handgun.         Barboiu testified he seized the
    
    handgun with a full magazine and another bullet.
    
           In Indictment Nos. 13-09-1176 and 13-09-1178, defendant was
    
    charged respectively with second-degree unlawful possession of a
    
    handgun, N.J.S.A. 2C:39-5(b), and second-degree certain persons
    
    not to have a firearm, N.J.S.A. 2C:39-7(b)(1).           The trial court
    
    denied "defendant's motion to suppress evidence seized from his
    
    room at Motel Six."     Defendant moved for reconsideration, and the
    
    court reaffirmed its denial of suppression.        Defendant pled guilty
    
    to the charged offenses in return for a recommendation of five
    
    years in prison with three years of parole ineligibility for
    
    unlawful possession and a consecutive five years in prison with
    
    five   years   of   parole   ineligibility   for   the   certain   persons
    
    offense.5   The court imposed the recommended sentence.
    
           Defendant appeals, arguing:
    
                POINT I - POLICE ENTRY INTO THE HOTEL ROOM
                REGISTERED TO ANNE CUNNIGAN WITH ONLY AN
                ARREST WARRANT FOR ROBERT RUCKER WAS UNLAWFUL.
    
                POINT II - A REMAND FOR RESENTENCING IS
                NECESSARY BECAUSE DEFENDANT WAS NOT AWARDED
    
    5
      Each of these sentences was the legal minimum for the offense.
    N.J.S.A. 2C:43-6(a)(2), (c) (2007); N.J.S.A. 2C:39-7(b)(1).
    
                                        4                              A-3295-14T1
                CREDITS TO WHICH HE IS ENTITLED UNDER STATE
                V. HERNANDEZ; AND THE TRIAL COURT FAILED TO
                PROVIDE REASONS FOR CONSECUTIVE SENTENCES.
    
                                          II.
    
         We first address the denial of suppression.              We must hew to
    
    our "deferential standard of review."           State v. Rockford, 
    213 N.J. 424
    , 440 (2013).       "'[A]n appellate court reviewing a motion to
    
    suppress must uphold the factual findings underlying the trial
    
    court's decision so long as those findings are supported by
    
    sufficient credible evidence in the record.'"               Ibid. (alteration
    
    in   original)   (citation     omitted).         "Those     findings   warrant
    
    particular deference when they are '"substantially influenced by
    
    [the trial court's] opportunity to hear and see the witnesses and
    
    to have the "feel" of the case, which a reviewing court cannot
    
    enjoy."'"     Ibid. (citation omitted).           "Thus, appellate courts
    
    should reverse only when the trial court's determination is 'so
    
    clearly     mistaken   "that    the        interests   of    justice    demand
    
    intervention and correction."'"            State v. Gamble, 
    218 N.J. 412
    ,
    
    425 (2014) (citation omitted).
    
                                          A.
    
         The suppression claim defendant raises on appeal was not
    
    raised in the trial court.      Before addressing that concern, it is
    
    helpful to review the law pertinent to that claim.
    
    
    
                                           5                               A-3295-14T1
         "[U]nder both the Fourth Amendment to the United States
    
    Constitution and Article I, Paragraph 7 of our State Constitution,
    
    searches    and   seizures   conducted   without   warrants    issued   upon
    
    probable    cause   are   presumptively    unreasonable   and    therefore
    
    invalid."    State v. Elders, 
    192 N.J. 224
    , 246 (2007).         "Under our
    
    constitutional jurisprudence, when it is practicable to do so, the
    
    police are generally required to secure a warrant before conducting
    
    a search of certain places, such as a hotel room."                State v.
    
    Hathaway, 
    222 N.J. 453
    , 468 (2015) (citations omitted).                 Here,
    
    defendant conceded the officers had a valid arrest warrant.
    
         "An arrest warrant 'implicitly carries with it the limited
    
    authority to enter a dwelling' where the suspect lives when there
    
    is reason to believe the suspect is inside."         State v. Brown, 
    205 N.J. 133
    , 145 (2011) (quoting Payton v. New York, 
    445 U.S. 573
    ,
    
    603, 
    100 S. Ct. 1371
    , 1388, 
    63 L. Ed. 2d 639
    , 661 (1980)); see,
    
    e.g., State v. Jones, 
    143 N.J. 4
    , 15 (1995) (holding the arrest
    
    warrant for Collier allowed the officers the authority to enter
    
    the apartment "in which Collier lived when there was reasonable
    
    grounds to believe he was there").           "Generally speaking, this
    
    principle extends to the target's hotel or motel room, since such
    
    an accommodation is akin to a temporary residence."           United States
    
    
    
    
                                        6                               A-3295-14T1
    v. Pelletier, 
    469 F.3d 194
    , 199 (1st Cir. 2006); see 3 LaFave,
    
    Search & Seizure § 6.1(b), at 381 (5th ed. 2012).6
    
         Nonetheless, "[t]o search for the subject of an arrest warrant
    
    in the home of a third party, the police must also obtain a search
    
    warrant . . . absent exigent circumstances or consent."      Brown,
    
    supra, 205 N.J. at 145 (citing Steagald v. United States, 
    451 U.S. 204
    , 216, 
    101 S. Ct. 1642
    , 1649-50, 
    68 L. Ed. 2d 38
    , 48 (1981)).
    
    "[A]bsent special circumstances, a police officer cannot search
    
    for the subject of an arrest warrant in a home where the subject
    
    is merely a visitor without first obtaining a search warrant."
    
    State v. Cleveland, 
    371 N.J. Super. 286
    , 294 (App. Div.), certif.
    
    denied, 
    182 N.J. 148
     (2004).
    
         To implement both precepts, we apply the standard that, "in
    
    the absence of consent or exigency, an arrest warrant is not
    
    lawfully executed in a dwelling unless the officers executing the
    
    warrant have objectively reasonable bases for believing that the
    
    person named in the warrant both resides in the dwelling and is
    
    within the dwelling at the time."    Id. at 299 (quoting State v.
    
    Miller, 
    342 N.J. Super. 474
    , 479 (App. Div. 2001)).     In Miller,
    
    supra, we affirmed suppression because the officers "did nothing
    
    to confirm independently the snippet of opinion they had received"
    
    
    6
      "Target" is used as a shorthand for the person named in the
    arrest warrant. See Pelletier, supra, 469 F.3d at 199.
    
                                    7                           A-3295-14T1
    that the target was living with a woman, who credibly denied he
    
    lived there.    342 N.J. Super. at 500; cf. State v. Craft, 425 N.J.
    
    Super. 546, 554 (App. Div. 2012) (finding "the trial court's
    
    reliance on Miller was misplaced" because a detective "knew the
    
    [target's] family resided at the address provided by [a police]
    
    intelligence officer").
    
         We have applied that standard to hotel rooms.        In Cleveland,
    
    supra,   a   confidential   informant   told   Officer   Montgomery   the
    
    "defendant was 'staying' with a woman" at a hotel and "the two
    
    were sleeping in room 304 at the time of the call."            371 N.J.
    
    Super. at 291.      "Yet, this informant also told Montgomery that
    
    Ebony Brown . . . was the 'legal tenant' of room 304, which
    
    presumably meant that she, rather than defendant, had rented the
    
    room. And, while Montgomery said that he knew defendant frequented
    
    the Inn, he had no specific information that defendant resided at
    
    the Inn."    Id. at 295.    We ruled Montgomery lacked "'objectively
    
    reasonable [] grounds to believe that defendant was actually
    
    residing in . . . room 304,'" rather than that he "was a visitor
    
    in Brown's room."    Ibid. (alteration in original).
    
         Nevertheless, an arrest warrant is sufficient to authorize
    
    entry if the police have a reasonable belief, "regardless of the
    
    name in which the motel room was registered, [that] the defendant
    
    — and only the defendant — was occupying it."        Pelletier, supra,
    
                                       8                             A-3295-14T1
    469    F.3d    at   200-01.      Similarly,     "[a]s    long   as    the   officers
    
    reasonably believed [the target] was a co-resident of the room,
    
    the entry into the room to arrest [him with an arrest warrant] was
    
    a reasonable one" even if it registered to someone other than the
    
    target.       United States v. Junkman, 
    160 F.3d 1191
    , 1194 (8th Cir.
    
    1998), cert. denied, 
    526 U.S. 1094
    , 
    119 S. Ct. 1511
    , 
    143 L. Ed. 2d
     663 (1999); see United States v. Jones, 
    696 F.2d 479
    , 486-87
    
    (7th Cir. 1982), cert. denied, 
    462 U.S. 1106
    , 
    103 S. Ct. 2453
    , 
    77 L. Ed. 2d 1333
     (1983); see also 3 LaFave, supra, § 6.1(b), at 379-
    
    80 & nn.100-01.
    
                                             B.
    
           On appeal, defendant claims a search warrant was required
    
    because the motel room was not his residence but the residence of
    
    a third party.        However, in his suppression motion brief, at the
    
    suppression hearing, in his reconsideration motion brief, and at
    
    the reconsideration hearing, defendant sought suppression on the
    
    ground that the unrolling of the air mattress was not a valid
    
    search    incident     to     arrest.7    The    trial    court      rejected    that
    
    argument, and defendant does not renew it on appeal.
    
    
    7
        Defendant raised only one point in his suppression brief:
    
                  THE SEARCH OF THE AIR MATTRESS WAS ILLEGAL AND
                  ANY EVIDENCE LOCATED THEREIN SHOULD BE
                  SUPPRESSED.
    
    
                                             9                                   A-3295-14T1
           Indeed, on reconsideration, in support of his challenge to
    
    the search of the air mattress, defendant argued "that he had
    
    established room 240 of the Motel 6 to be his residence," that
    
    "the subject hotel room was the defendant's residence on July 8,
    
    2013," and "that this was Mr. Rucker's residence."                 This argument
    
    was apparently based on defendant's own certification.8                        When
    
    defendant      pled   guilty,   he    signed   a     plea   form    specifically
    
    preserving the "[d]efense that the Hotel room was his residence."
    
           On appeal, defendant contends Room 240 was not his residence.
    
    He argues the officers unlawfully "entered Anne Cunnigan's hotel
    
    room – without a search warrant – to execute the arrest warrant
    
    against [him]."        However, defendant never argued to the trial
    
    court that a search warrant was required because Room 240 was not
    
    his residence.
    
           Defendant contends he raised that claim as part of a hearsay
    
    objection.     If defendant raised any claim at all in that context,
    
    it was an incorrect assertion that a search warrant was required
    
    to arrest a person in his own residence.
    
           While    addressing      a    hearsay   objection      by    defendant's
    
    suppression     counsel,     the     trial   court    asked   him    if   he   was
    
    
    In his reconsideration brief, he raised only a reworded version
    of that point.
    8
        Neither party has supplied us with the certification.
    
                                           10                                 A-3295-14T1
    challenging the entry into the room.             He responded he was, because
    
    the police "need a search warrant to arrest somebody they have an
    
    arrest   warrant    for,     in   their     house."      The   court      correctly
    
    responded: "That's not the law[.]" Suppression counsel then argued
    
    that officers with "an arrest warrant for somebody" had to get a
    
    search warrant to "search somebody's house" and that the same
    
    principle applied when "a person's dwelling place is a hotel room."
    
    The court correctly replied that "to arrest the person, they don't
    
    need it."    The court overruled the hearsay objection.
    
         Because defendant did not claim that Room 240 was not his
    
    residence and that a search warrant was therefore required, the
    
    trial court did not address such a claim.              The court did not make
    
    any finding on whether "Anna Cunnegan" was actually residing in
    
    the hotel room or whether that name was being used by defendant
    
    or J.S. to register the room in which one or both of them were
    
    staying.    Although the court's order denied defendant's motion to
    
    suppress the gun seized in "his room," the court did not make a
    
    factual finding that defendant was residing in Room 240.                         When
    
    defendant    asserted   on    reconsideration         that   the   room    was    his
    
    residence,    the   court     stated      that   "even   if    this    was     [his]
    
    'residence[,]' and I put residence in quotes, it still does not
    
    negate the validity of the arrest warrant which gave the police
    
    the authority to enter the room."
    
                                           11                                    A-3295-14T1
          The trial court also did not make any legal rulings on the
    
    unraised claim. In particular, the court did not determine whether
    
    the   officers    had   "an      objectively   reasonable    basis     both      for
    
    believing the residence to have been the home of the person named
    
    in the arrest warrant and that he was present in the home at the
    
    time the warrant was executed."             Miller, supra, 342 N.J. Super.
    
    at 497.
    
          We decline to consider this newly-raised claim.               Our Supreme
    
    Court held in analogous circumstances it was improper to address
    
    on appeal a suppression claim the defendant failed to raise in the
    
    trial court.     State v. Robinson, 
    200 N.J. 1
    , 22 (2009).                 Here, as
    
    in Robinson, "[b]ecause that issue never was raised before the
    
    trial court, because its factual antecedents never were subjected
    
    to the rigors of an adversary hearing, and because its legal
    
    propriety never was ruled on by the trial court, the issue was not
    
    properly   preserved       for     appellate   review."       Id.     at     18-19.
    
    Defendant's      failure      to   raise    the   claim     created        "factual
    
    shortcoming[s]," id. at 20, such as the absence of findings about
    
    "Anna Cunnegan" and where defendant was residing on July 8, 2013.
    
               Moreover, the failure to raise defendant's
               present claim during the motion to suppress
               denied the State the opportunity to confront
               the claim head-on; it denied the trial court
               the opportunity to evaluate the claim in an
               informed and deliberate manner; and it denied
               any reviewing court the benefit of a robust
    
                                           12                                   A-3295-14T1
                record within       which     the    claim       could    be
                considered.
    
                [Id. at 21.]
    
         Here, as in Robinson, "defendant never asserts that" his new
    
    claim   "creates   an   issue   of   trial      error    'clearly       capable       of
    
    producing   an   unjust    result'   that       must    be   addressed        'in   the
    
    interests of justice.'"       Robinson, supra, 200 N.J. at 21 (quoting
    
    R. 2:10-2). In any event, Rule 2:10-2 is "not intended to supplant
    
    the obvious need to create a complete record and to preserve issues
    
    for appeal."     Id. at 20.     "Given this record, an appellate court
    
    should stay its hand and forego grappling with an untimely raised
    
    issue." Id. at 21. Accordingly, it is "inappropriate to consider,
    
    for the first time on appeal, defendant's belated challenge to the
    
    manner in which the [arrest] warrant was executed."                     Id. at 22.
    
    Like Robinson, we uphold defendant's convictions.                    Ibid.9
    
                                         III.
    
         Defendant next challenges aspects of his sentence for the
    
    certain persons offense, namely the imposition of that sentence
    
    consecutively to the unlawful persons offense, and the quantity
    
    of jail credits awarded against that sentence.                  "[T]rial judges
    
    
    
    9
      Because we do not reach the merits of defendant's sole
    suppression claim on appeal, we need not address the State's
    alternative argument that entry into the motel room was justified
    by exigent circumstances.
    
                                         13                                        A-3295-14T1
    have discretion to decide if sentences should run concurrently or
    
    consecutively," State v. Miller, 
    205 N.J. 109
    , 128 (2011), and
    
    their decisions are reviewed for "abuse of discretion," State v.
    
    Spivey, 
    179 N.J. 229
    , 245 (2004).     Regarding the awarding of jail
    
    credits, our review is "de novo."       State v. DiAngelo, 434 N.J.
    
    Super. 443, 451 (App. Div. 2014).     Moreover, "[a] sentence imposed
    
    pursuant to a plea agreement is presumed to be reasonable."     State
    
    v. Fuentes, 
    217 N.J. 57
    , 70-71 (2014).
    
                                     A.
    
         Defendant argues the trial court failed to consider the
    
    standards for imposing a consecutive sentence set forth in State
    
    v. Yarbough, 
    100 N.J. 627
     (1985), cert. denied, 
    475 U.S. 1014
    , 
    106 S. Ct. 1193
    , 
    89 L. Ed. 2d 308
     (1986).        In Yarbough, after
    
    acknowledging "there can be no free crimes in a system for which
    
    the punishment shall fit the crime," our Supreme Court ruled the
    
    factors "to be considered by the sentencing court should include"
    
    whether:
    
               (a)   the crimes and their objectives were
                     predominantly independent of each other;
    
               (b)   the crimes involved separate acts      of
                     violence or threats of violence;
    
               (c)   the crimes were committed at different
                     times or separate places, rather than
                     being committed so closely in time and
                     place as to indicate a single period of
                     aberrant behavior;
    
                                     14                           A-3295-14T1
               (d)   any of the    crimes   involved   multiple
                     victims;
    
               (e)   the convictions for which the sentences
                     are to be imposed are numerous.
    
               [Id. at 643-44.]
    
    The Yarbough Court added: "[T]he reasons for imposing either a
    
    consecutive or concurrent sentence should be separately stated in
    
    the sentencing decision."     Id. at 643.
    
         At sentencing, the trial court did not mention Yarbough or
    
    its factors, but simply stated the certain persons "sentence shall
    
    be consecutive to the [unlawful possession] sentence."        The court
    
    discussed the aggravating and mitigating factors, but that alone
    
    would not ordinarily satisfy Yarbough.      See State v. Eisenman, 
    153 N.J. 462
    , 479 (1998).    In the judgment of conviction, the court
    
    added "[t]his was a negotiated plea this Court is willing to
    
    accept."   However, "the terms of a plea bargain do not control the
    
    inherent sentencing authority of the court" or satisfy the court's
    
    duty to "engage[] in its own analysis of the principles stated in
    
    Yarbough."   State v. Friedman, 
    209 N.J. 102
    , 123 (2012).
    
         "To be sure, sentences can be upheld where the sentencing
    
    transcript makes it possible to 'readily deduce' the judge's
    
    reasoning," but only "when the record is clear enough to avoid
    
    doubt as to the facts and principles the court considered and how
    
    
                                     15                             A-3295-14T1
    it meant to apply them." Miller, supra, 205 N.J. at 129-30. Thus,
    
    we have affirmed where "[n]o explicit assessment of the Yarbough
    
    factors   was   made   in   support   of   imposition   of   a   consecutive
    
    sentence, but the reasons are self evident."            State v. Soto, 
    385 N.J. Super. 247
    , 257 (App. Div.), certif. denied, 
    188 N.J. 491
    
    (2006).   In Soto, we affirmed because there "were separate crimes
    
    committed on separate occasions and the plea agreement itself
    
    called for consecutive sentences."         Ibid.; see State v. Jang, 
    359 N.J. Super. 85
    , 97-98 (App. Div.) (affirming because there "were
    
    individual crimes with two separate victims"), certif. denied, 
    177 N.J. 492
     (2003).
    
         Here, the plea agreement called for consecutive sentences,
    
    but it is not as obvious what Yarbough factor(s) were relied upon
    
    to impose them.    The prosecutor argued the State agreed to a plea
    
    agreement for consecutive sentences because unlawful possession
    
    and certain persons offenses "are two distinct offenses," because
    
    of "the legislative intent behind the two different offenses," and
    
    because of "the case law."10      However, there is no indication the
    
    trial court adopted that rationale.
    
    
    10
      A certain persons conviction does "not merge with the weapons
    possession conviction," State v. Lopez, 
    417 N.J. Super. 34
    , 37 n.2
    (App. Div.), certif. denied, 
    205 N.J. 520
     (2011), because they are
    "two distinct possessory crimes" and "[t]he Legislature could not
    have intended that a convicted felon who possesses or carries an
    
    
                                          16                             A-3295-14T1
         Thus, "the record does not reveal that the trial court
    
    expressly or implicitly considered [Yarbough's] guiding legal
    
    principles governing its discretion" and "does not reflect a direct
    
    or indirect discussion of the basis for imposing consecutive
    
    sentences."   Miller, supra, 205 N.J. at 129-30.     Moreover, "the
    
    record also supported Yarbough factors that might favor concurrent
    
    sentences."   Id. at 129.    As in Miller, "[b]ecause we cannot
    
    sufficiently discern the trial court's reasoning, we remand for
    
    resentencing" to determine whether, applying the Yarbough factors,
    
    the certain persons sentence should be concurrent or consecutive.
    
    Id. at 130.   "We offer no view on the outcome of that hearing
    
    because the decision to impose consecutive or concurrent sentences
    
    rests in the first instance with the trial court."    Ibid.
    
                                    B.
    
         Defendant next contends he was entitled to additional jail
    
    credits against his certain persons sentence. Rule 3:21-8 provides
    
    "[t]he defendant shall receive credit on the term of a custodial
    
    
    
    
    operable gun . . . be treated the same as a defendant who is not
    such a felon," State v. Wright, 
    155 N.J. Super. 549
    , 553-55 (App.
    Div. 1978) (addressing predecessor statutes). Nonetheless, "there
    is no statutory mandate that the court impose a consecutive
    sentence for a certain persons conviction," Lopez, supra, 417 N.J.
    Super. at 37 n.2, so a certain person sentence "may either be
    concurrent with, or consecutive to, that for the [unlawful
    possession] conviction," Wright, supra, 155 N.J. Super. at 555.
    
                                   17                             A-3295-14T1
    sentence for any time served in custody in jail . . . between
    
    arrest and the imposition of sentence."
    
          On   the    unlawful       possession       indictment,         the   trial     court
    
    awarded jail credit of 464 days, representing the period from his
    
    July 8, 2013 arrest to his October 14, 2014 sentencing.                             On the
    
    certain    persons    indictment,        the      court   awarded       defendant       jail
    
    credit of 400 days, representing the period from the September 10,
    
    2013 filing date of the certain persons indictment to his October
    
    14, 2014 sentencing.
    
          Defendant claims that under State v. Hernandez, 
    208 N.J. 24
    
    (2011), he should have received 464 days jail credit on the certain
    
    persons     indictment      as    well       as   on     the    unlawful     possession
    
    indictment, asserting he "was arrested on both offenses on July
    
    8, 2013."     The State disagrees, arguing defendant was not charged
    
    with the certain persons offense until that indictment issued on
    
    September 10, 2013.
    
          Under      Hernandez,      the    timing      of    the       indictment   is      not
    
    dispositive.       There, our Supreme Court addressed the unrelated
    
    cases of two defendants.                Id. at 28.             The Court's decision
    
    regarding defendant Rose is more pertinent here.                        Like defendant
    
    here, Rose was the subject of two indictments in the same county,
    
    and   he   pled    guilty     and      was    sentenced        on    both   indictments
    
    simultaneously.       Id. at 31-32.           He sought jail credits against a
    
                                                 18                                     A-3295-14T1
    consecutive sentence on the drug indictment for time spent in
    
    custody after his first arrest on theft charges, but before the
    
    drug indictment issued. Id. at 32-33, 35. The trial court awarded
    
    jail credits for the period of his theft arrest to the sentencing
    
    solely against the sentence under the theft indictment, not against
    
    the consecutive sentence under the drug indictment that contained
    
    a parole ineligibility period.      Id. at 33.
    
         The Supreme Court "granted certification to consider the
    
    proper interpretation and application of Rule 3:21-8, the rule
    
    governing the award of jail credits, to cases involving defendants
    
    sentenced to imprisonment on multiple indictments."            Id. at 28.
    
    The Court noted "[i]f multiple charges are embodied in a single
    
    indictment and two or more counts are disposed of, the total amount
    
    of jail credits reduces the aggregate custodial sentence imposed."
    
    Id. at 47-48.    The Court rejected the proposition that the credits
    
    should be different "if they are embodied in separate indictments."
    
    Id. at 48.      "The issue of credits simply cannot turn on such
    
    happenstance."    Ibid.
    
         Thus, under Hernandez, courts must "apply jail credit in a
    
    manner   that   prevents   the   real   time   served   from   turning    on
    
    'happenstance,' such as whether the same charges are included in
    
    one indictment or spread over multiple indictments."             State v.
    
    Joe, 
    228 N.J. 125
    , 131 (2017).           Moreover, "as interpreted by
    
                                       19                              A-3295-14T1
    Hernandez, Rule 3:21-8 requires that a defendant receive jail
    
    credit even though the charges are not directly responsible for
    
    his or her incarceration."           State v. Rawls, 
    219 N.J. 185
    , 194
    
    (2014).
    
         The   State   tries     to   analogize     to     DiAngelo,     supra,   which
    
    concerned "a custodial term for a violation of probation (VOP)."
    
    434 N.J. Super. at 446.            There, "[w]e reject[ed] defendant's
    
    assertion credit against the VOP sentence begins upon her arrest
    
    on new charges."         Id. at 461.     We held "[t]he more appropriate
    
    date for credit against the VOP sentence is the date the VOP
    
    statement of charges issued."          Id. at 462.        The State argues the
    
    certain persons indictment should be treated like a VOP statement
    
    of charges. However, nothing in DiAngelo indicates that its ruling
    
    or rationale extends beyond the issues posed by a VOP.                 See, e.g.,
    
    id. at 458-59 ("We confine our review to a defendant who is in
    
    custody after commission of another criminal offense while on
    
    probation, and against whom a summons for a VOP has been issued
    
    rather than an arrest warrant").              We decline to extend DiAngelo
    
    to alter the treatment of the issue of multiple indictments, which
    
    the Supreme Court addressed in Hernandez.
    
         Nonetheless, we do not grant defendant's request to increase
    
    the jail credits on his certain persons sentence because our
    
    Supreme    Court   has    recently     made    clear    that   the    appropriate
    
                                           20                                 A-3295-14T1
    treatment of jail credits depends on whether the sentences are
    
    consecutive or concurrent.     State v. C.H., 
    228 N.J. 111
     (2017).
    
    In C.H., the Court "consider[ed] whether a defendant who is
    
    simultaneously sentenced to consecutive sentences on two separate
    
    indictments is entitled to the application of jail credit against
    
    both indictments pursuant to Rule 3:21-8."          Id. at 113.   The Court
    
    recognized "some language in Hernandez may have caused confusion
    
    about whether jail credits can reduce sentences on each charge of
    
    a consecutive sentence."    Id. at 121.      The Court ruled "[n]either
    
    the   disposition   of    Hernandez    nor    the     overarching    policy
    
    considerations in that opinion warrant the application of [such]
    
    double jail credit."     Id. at 113.
    
          To avoid double credit, the Court held in C.H.:
    
              Hernandez is modified as follows: double
              credit should not be awarded where a defendant
              is sentenced to consecutive sentences under
              separate indictments and receives the optimal
              benefits of jail credit for time spent in pre-
              sentence custody.       To the extent that
              Hernandez has been read differently with
              respect to consecutive sentences we do not
              follow that approach.
    
              [Id. at 123.]
    
    The Court instructed: "The appropriate course of action is to view
    
    the separate sentences together and apply jail credit to the front
    
    end of the aggregate sentence.         This application maximizes the
    
    
    
                                     21                                 A-3295-14T1
    benefits of jail credit for defendants without awarding double
    
    time."   Id. at 121-22.
    
         Accordingly, on remand the trial court should determine the
    
    appropriate   allocation      of   jail   credits   at   the    same   time    it
    
    determines    whether   the    sentences     should      be    consecutive     or
    
    concurrent.   If the court imposes a consecutive sentence, then all
    
    464 days of jail credits should be allocated against the unlawful
    
    possession sentence.11     If the sentences are concurrent, the 464
    
    days of jail credits should be applied once against the concurrent
    
    sentence for both offenses.
    
         We vacate the portions of the certain persons judgment of
    
    conviction imposing that sentence consecutively and awarding 400
    
    days of jail credit.       We remand for a determination whether the
    
    certain persons sentence should be concurrent or consecutive and
    
    subject to the 464 days of jail credits.                  We do not retain
    
    jurisdiction.   We affirm in all other respects.
    
         Affirmed in part, vacated in part, and remanded.
    
    
    
    
    11
      That will "maximize the benefits to the defendant by applying
    jail credit to the front end of the imprisonment term," namely the
    unlawful possession sentence. C.H., supra, 228 N.J. at 123. The
    464 days of jail credits would be used up during the three-year
    period of parole ineligibility on the unlawful possession
    sentence, and any award of jail credits against the consecutive
    certain persons sentence would result in improper double credit.
    
                                         22                                 A-3295-14T1