By Peter Dujardin
Daily Press
HAMPTON — When defendants take part in local “drug court” programs, they can be sent off to jail for nights at a time should they test positive for drugs.
But if those violations ultimately lead them to get kicked out of the program, should they get credit for that jail time when they’re ultimately sent off to prison?
Paul F. DeLosh, director of judicial services for the Executive Secretary’s Office at the Virginia Supreme Court — whose office oversees the drug court programs statewide — says no.
“There’s no credit for sanction time,” DeLosh said.
But to hear Joshua Paternoster-Cozart say it, not getting credit for such time is patently illegal — and he’s taking the state to federal court over the issue. Under federal case law, he argues, the jail time must be credited toward a particular sentence.
“Any time you’re being held in relation to your sentence, you get credit for time so served,” he said in a recent interview from the Indian Creek Correctional Center in Chesapeake.
Paternoster-Cozart, 29, of Hampton, says he should have been out of prison in March on a four-year sentence — even as the state prison system lists his release date as Oct. 14. The 196-day difference includes 66 days spent jailed on drug court violations and 130 days at a correctional diversion center in Stafford.
“It’s not like I’m asking for credit for time I spent on the street,” Paternoster-Cozart says. “I’m asking for credit for time I spent in jail, away from home … I committed the crimes I committed, I suffered the punishment for the crime, but now I’m being overly punished compared to what the sentence was. I’ve done my time, and I should be home.”
The forthcoming federal court ruling could go beyond Paternoster-Cozart’s case. If a federal judge rules that such time must be credited, it could have repercussions on drug court participants around the state.
“I know I’m not the only person who is denied this credit,” Paternoster-Cozart said. “But they just more or less accepted their fate, and I didn’t.”
Last month, U.S. Magistrate Judge Lawrence R. Leonard sided in part with Paternoster-Cozart’s argument.
The judge, pointing to one of the cases cited by the inmate, found the state of Virginia is violating Paternoster-Cozart’s constitutional rights by not granting him credit for the 66 days of jail time. But Leonard did not recommend credit for the 130 days at the diversion center.
Leonard’s report and recommendation will now go to a separate judge, U.S. District Judge Mark S. Davis, to make the final call.
No written policy
But in an objection last week to Leonard’s report, the Virginia attorney general’s office asserted that Leonard erred in concluding the jail sanction time should be credited.
“This period of incarceration — which is intended to function as a deterrent for any further violations of (drug court rules) — is separate from any suspended period of incarceration the participant might have received for his underlying convictions,” Assistant Attorney General Kate E. Dwyre wrote.
The objection also cited a 2012 ruling from Hampton Circuit Judge Louis R. Lerner, in which Lerner dismissed Paternoster-Cozart’s petition and said the prison time “has been computed accurately and in accordance with Virginia law.”
Hampton Commonwealth’s Attorney Anton Bell, who was not the city’s top prosecutor when Paternoster-Cozart was in drug court, contends drug court participants are told up front that they don’t get credit for the sanction time.
Drug court isn’t supposed to be easy, its supporters say. “There is no confusion,” Bell said. “You’re dealing with someone who is trying not to serve the remainder of the time.”
The Daily Press asked DeLosh, of the Virginia Supreme Court’s executive secretary’s office, for the state law or written state policy that says defendants don’t get credit for drug court sanction time.
He said no such state law or written policy exists. Instead, he said, the rule is typically spelled out in the plea agreement, or in a separate written contract the person signs upon entering the drug court program.
But in Paternoster-Cozart’s case, the plea agreement did not say that drug court violation time would not be credited. Instead, it says that he may be jailed for up to 10 days at a time for such violations, and doesn’t address credit. There was also no separate contract.
“Nowhere in there does it stipulate that you don’t get credit for time served,” Paternoster-Cozart said. “Nowhere did I sign anything saying, ‘Hey, if you arrest me on a probation violation, I don’t get credit for that that time.’”
Former Hampton Public Defender Jim Gochenour, who represented Paternoster-Cozart at a 2010 plea agreement hearing, agrees with his former client that the credit should be granted. “A night in jail is a night in jail,” Gochenour said.
Gochenour said he has tried to get drug court sanction time credited for clients in the past, but has always been rebuffed by judges. If there’s no written “rule or policy or regulation,” he said, “then they ought to get credit for it.”
Bell, for his part, said that “as a result of the recent controversy,” he’s now putting language in all of his drug court plea agreements to spell out that sanction time won’t be credited. “That’s so that it’s clearly written in bold letters, so that there’s no chance for someone to be confused,” he said.
Case began in 2008
The uncredited time, Paternoster-Cozart says, is time away from his mother, his brother and his four children.
“It’s time that you can never give back to me,” he said. “If something was to happen to one of my kids or my mom on the outside, I was deprived of that time with them. Anything can happen. I’m missing my children’s birthdays, holidays and just time — school recitals, art projects, science fairs.”
The case has its roots in 2008, when Paternoster-Cozart was arrested on several charges in Hampton — three forgery counts, three bad check counts and a grand larceny.
Later in 2008, he was given 12 years in prison — all suspended — on the forgery and uttering charges, and 10 years — with all but three months suspended — on the grand larceny charge.
But in January 2010, he was arrested on a shoplifting charge, which violated the terms of his 2008 suspended sentences.
In July 2010, he entered a plea agreement to resolve the charges by going into the Hampton drug court program, designed for non-violent offenders with an incentive to stay out of jail.
Under that agreement, Paternoster-Cozart was to get a five-year suspended sentence if he made it through the program. If he didn’t, he was to get five years and eight months behind bars.
But as time went on, he tested positive for drugs during random urine screens. Then he was sent to a diversion program at a state correctional facility in Stafford. But after being found with “synthetic marijuana,” he was kicked out of the diversion center and drug court program after 130 days.
‘No credit for sanctions’
In October 2011, Hampton Circuit Court Judge Christopher W. Hutton sentenced Paternoster-Cozart to four years in prison. “The defendant shall be given credit for time spent in confinement while awaiting trial” pursuant to state law, Hutton added.
In its court filing last week, the state attorney general’s office contends that time in jail on drug court sanctions — which came after the guilty pleas but before the sentencing — was not “time awaiting trial.”
Paternoster-Cozart, for his part, asserts that under the federal cases, the post-conviction time must be credited, too. But in trying to get credit for the 196 days, Paternoster-Cozart says he’s gotten the runaround.
When he writes to the Circuit Court and the Hampton Drug Court, they tell him they have nothing to do with the calculation of prison time, and that he should talk to the Virginia Department of Corrections. But when he writes to the prison system, they refer him back to the court.
At one point, the Department of Corrections provided him a “legal update” that said, in part: “Per Hampton City Circuit Court he does not get any credit” for the time in drug court — without saying who at the court gave those instructions.
Larry Traylor, a Department of Corrections spokesman, told the Daily Press that the prison system stands by the time calculation, and that “information received directly from the Drug Court Program Coordinator for Hampton confirms” that he shouldn’t get the jail credit.
The Hampton drug court coordinator, Sherry Glasgow, told the Daily Press she “has nothing to do” with the prison system’s time calculations. But she also asserted that drug court participants don’t get credit for time in jail on drug court sanctions.
Letter from lawyer
For the past two years, Paternoster-Cozart has been pressing his case without a lawyer — ever since his most recent lawyer, James Phillips, told him to stop writing him.
In a final letter to his client in August 2012, Phillips told Paternoster-Cozart that he had spoken with Glasgow, who said Paternoster-Cozart wasn’t eligible to get credit for the sanction time.
“I have also spoken to a Hampton Circuit Court judge, who shall remain nameless,” Phillips added. “This judge believes that because your entry into the (Stafford) diversion program was a drug court sanction, you will not receive credit for time served.”
In the same letter, Phillips told his client he wanted to “remind” him that he got a significant break at sentencing. That is, instead of the five years and eight months spelled out in the 2010 plea agreement, Hutton sentenced him to four years.
In an interview, Paternoster-Cozart criticized that letter, contending Phillips “should be taking up my fight with me.”
He asserts that Phillips should have told him which judge he spoke with. Moreover, Paternoster-Cozart says a determination from an unnamed judge — “not even in writing” — is not a proper basis to deprive him of nearly seven months of liberty.
“I got a break, I admit that,” he said. “At the same time, ‘Hey, you cut me a break, but I still get credit for (the time spent locked up). I don’t lose this because you gave me that.’”
Paternoster-Cozart also asserts that four years was a stiff sentence. At the time of his sentencing, he said, state sentencing guidelines calculated his time at less than a year to serve.
“The judge sentenced me to four years, and with (good conduct) credits and whatnot, I’m serving above the four years,” Paternoster-Cozart said. “I’m essentially serving a four-and-a-half year sentence when four years was imposed.”