By Peter Dujardin
Daily Press
HAMPTON — Joshua Paternoster-Cozart says he should be out playing with his kids right now rather than sitting in prison, asserting he’s already served all his time on various charges out of Hampton.
He contends he was supposed to be released in late March on a four-year sentence for forgery, shoplifting and bad checks, after accounting for good behavior and time served before sentencing.
But the Virginia Department of Corrections, meantime, has calculated his release date as Oct. 14.
The difference — about 196 days — is due to a disagreement over whether he should get credit for time spent in jail for drug violations and in a diversion program while in the Hampton Drug Court.
“Somewhere in these sentences, you’ve got to account for the dates,” Paternoster-Cozart, 29, of Hampton, said last month in an interview from the Indian Creek Correctional Center in Chesapeake. “Are they just lost in the abyss? I don’t think so.”
But after years of rejections and runarounds from various officials — at the Department of Corrections, the Hampton Drug Court, the Hampton Circuit Court and even his own lawyer — he now has an important person at least partially in his corner: A federal judge.
In a recent recommendation to the judge who will decide the case, U.S. Magistrate Judge Lawrence Leonard said the state is violating Paternoster-Cozart’s rights by not giving him credit for all the time he spent locked up.
“The undersigned finds that the Petitioner was denied pre-sentence credit for jail time served in violation of his constitutional rights,” Leonard wrote. The Norfolk-based judge said the state’s motion to dismiss should be denied and that Paternoster-Cozart should “be credited for 66 days that he served while awaiting sentencing.”
Leonard said the Virginia attorney general’s office, representing the director of the Department of Corrections, “not only wholly failed to address” Paternoster-Cozart’s argument, but “also failed to set forth any evidence to contradict the Petitioner’s evidence.”
“The silence is telling,” Leonard wrote in his 25-page report.
The judge didn’t buy Paternoster-Cozart’s entire argument, either. The 66 days the judge says should be credited is well short of the 196 days that Paternoster-Cozart wants. A 66-day reduction would bring Paternoster-Cozart’s release date to early August — not the March time frame he sought.
Still, after years of sleepless nights and unreturned letters, Paternoster-Cozart — who filed the petition without a lawyer — says he’s elated someone with some authority is in his corner.
He was hopeful when the envelope with the report was fairly thick, and he said he “enjoyed” reading it when he dug in. Then he told a prison grievance panel — which was about to reject his “emergency grievance” on the issue — that, “You might want to look at this.”
But federal magistrate judges’ reports in such cases are not final orders, except in cases in which neither side objects.
Leonard’s “report and recommendation” will now be turned over to U.S. District Judge Mark S. Davis. Davis, who has the power to accept or reject Leonard’s views, will make the final determination after hearing objections from each side.
Larry Traylor, a spokesman with the Department of Corrections, declined to comment given the pending litigation, referring calls to the attorney general’s office.
Virginia attorney general’s office spokesman Michael Kelly said the office plans to file an objection to Leonard’s report.
“The commonwealth’s response before the magistrate only addressed the procedural issues with the case and did not reach its substance,” Kelly said in a prepared statement. “The commonwealth has both substantive and procedural arguments that will be filed for the (district) judge’s consideration in an objection to the magistrate’s report and recommendation.”
Paternoster-Cozart, for his part, says he will object to the report on the basis that he should get credit for the other 130 days, too.
Paternoster-Cozart pleaded guilty in 2008 to several charges in Hampton — on three forgery counts, three bad check counts, and grand larceny. He was given 12 years — all suspended — on the forgery and uttering charges, and 10 years — with all but three months suspended — on the grand larceny.
But in January 2010, he pleaded guilty to shoplifting, which violated the terms of his probation on the 2008 charges. In July 2010, he entered a plea agreement to go into the drug court program, which is designed for non-violent offenders.
Under that agreement, Paternoster-Cozart was to get an entirely suspended sentence if he successfully made it through the drug court program. If he failed to get through the program, he was to get five years and eight months of active prison time.
But Paternoster-Cozart tested positive for cocaine during urine screens. Then he was sent to a diversion program in Chesapeake. But after being found with “synthetic marijuana,” Paternoster-Cozart was finally kicked out the diversion center and drug court program in August 2011.
In October 2011, Hampton Circuit Court Judge Christopher W. Hutton sentenced Paternoster-Cozart to four years to serve — with another eight years suspended — on the forgery and uttering counts. He was also sentenced to nine years and nine months, all suspended, on the grand larceny, and five years, all suspended, on the shoplifting.
Also in that sentencing order, Hutton wrote: “The defendant shall be given credit for time spent in confinement while awaiting trial” pursuant to state law.
Paternoster-Cozart said the 196 days for which he’s not getting credit includes 66 nights in jail on probation violations, mostly for testing positive for drug use in urine screens. Plus, he contends he deserves credit for the 130 days he spent at an alternative state facility in Chesapeake while still in the drug court program.
But when he filed a state habeas corpus petition in 2012, Hampton Circuit Court Judge Louis R. Lerner rejected it. In his ruling, Lerner cited an affidavit from Wendy Brown, a manager of court and legal services at the Department of Corrections.
In that affidavit, Brown says: “Per the Court’s instructions, Paternoster was not to receive any jail credit for the time period between July 10, 2010 through September 13, 2011.”
But it’s not clear who at “the Court” gave those “instructions” — no judge or other court official’s name was listed — or in what format.
After Lerner rejected his petition, Paternoster-Cozart filed in federal court. Among other things, he cited Durkin v. Davis, a 1976 U.S. 4th Circuit Court of Appeals decision that’s listed in the “case notes” section of Virginia law regarding sentencing credit.
According to those footnotes, that appeals court decision requires prisoners to get credit for both “pre-conviction” and “post-conviction” jail time — saying it’s rooted in the constitutional provision that “No state shall deprive any person of life, liberty, or property without due process of law.”
“When such credit is withdrawn, the sentence that a State prisoner must serve is automatically increased,” the case notes say. That’s “sourced in the United States Constitution, and is, therefore, absolute.”
In his report, Leonard also cited that case as having authority.
He added that not giving credit for the 66 days “directly violates” Hutton’s October 2011 sentencing order. “Again, the Respondent filed no evidence ... whatsoever that might explain why the Virginia Department of Corrections’ system contradicts the trial court’s sentencing order,” Leonard wrote.