(This syllabus is not part of the opinion of the Court. 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 Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued March 1, 1994 -- Decided June 21, 1994
O'HERN, J., writing for a majority of the Court.
These appeals concern "gap-time credits" that arise by statute when a defendant is sentenced at different
times for multiple crimes. In a prior case (Richardson v. Nickolopoulos) decided in 1988, the Court determined
that gap-time "credits" were actually a limitation on the maximum term of imprisonment that could be imposed
at sentencing, not a declaration that time served on a prior sentence was to be regarded as "time served" on the
current sentence. The Court also determined that gap-time credits were to be applied to the back end of the
sentence.
In the current appeals, the Court is presented with two issues:
1. Do gap-time credits, as a limit on the total possible sentence, correspondingly reduce the authority
of a court to impose a judicial parole-ineligibility term?
2. Do gap-time credits proportionately advance a defendant's primary parole-eligibility date when no
parole- ineligibility term has been imposed?
The appeals of Douglas Booker and Needham Fitzpatrick present the first question, the appeal of
Darelle Nelson the second. Booker, for example, had been sentenced on February 9, 1990, to twenty years in
prison with a ten-year parole ineligibility term. In May of 1990, he was sentenced to a concurrent fifty years in
prison with a twenty-five year parole ineligibility term for an offense that was committed prior to the matter on
which he was sentenced in February. Under the gap-time statute, Booker is entitled to "credits."
To address the second question, the Court looks to the Nelson case. Nelson was sentenced on May 11,
1990, to a four-term prison term with no parole bar. In December 1990, Nelson was sentenced to a five-year
term -- with no parole bar -- for an offense committed before the crime for which he had already been
sentenced. The two sentences were concurrent, not consecutive.
The Appellate Division held that gap-time credits could not be applied against a parole-ineligibility term
but that they could advance the first date on which a defendant could be eligible for parole when there is no
parole-ineligibility term. The Court granted the petitions for certification filed by Booker, Nelson, and
Fitzpatrick.
HELD: Gap-time credits cannot be used to reduce the authority of a court to impose a judicial parole-ineligibility term. In the absence of a judicial or statutory parole-ineligibility term, gap-time credits
proportionately advance a defendant's primary parole-eligibility date.
1. If the second parole-ineligibility term were to run from the date of the first sentence, that would make the
sentence retroactive and would equate gap-time credits with jail time, a result the Court does not believe the
Legislature intended. An analysis of the statute leads to the conclusion that the Legislature did not contemplate
reducing the authority of the courts to impose a judicial parole-ineligibility term. (pp. 6-8)
2. Although the question is close, the Court concludes that if the statute is to have any meaning, it must involve
some reduction of the cumulative period of time to be served in the absence of a parole-ineligibility term. Gap-time credits must be determined by the trial court at sentencing. (pp. 8-10)
3. The gap-time statute also applies to reduce the aggregate of consecutive sentences. (pp. 11-12)
4. The decision of the Court is to be applied prospectively, except for Booker, Nelson, and Fitzpatrick and cases
currently on appeal. (pp. 12-13)
5. The Court commends the gap-time statute to the Legislature for its consideration, noting that there are
internal inconsistencies and substantial difficulties in the application of the Act. (pp. 13-15)
The judgment of the Appellate Division is AFFIRMED.
JUSTICES CLIFFORD, HANDLER, POLLOCK, and GARIBALDI join in JUSTICE O'HERN's
opinion. JUSTICE STEIN has filed a separate opinion CONCURRING IN PART and DISSENTING IN PART.
CHIEF JUSTICE WILENTZ did not participate.
STEIN, J., Concurring in Part and Dissenting in Part, is of the view that applying gap-time credits to the back
end of a subsequently-imposed consecutive sentence produces a result that the Legislature would not have
intended -- a defendant sentenced at the same time to consecutive terms for two crimes will serve more time
than a defendant sentenced at separate times to consecutive terms for the same crimes. He also dissents from
the holding that gap-time credits should be used to reduce the length of consecutive sentences. He concurs in
the holding that parole-ineligibility terms should not be affected by gap-time credits.
SUPREME COURT OF NEW JERSEY
A-103/104/
105 September Term 1993
DOUGLAS BOOKER,
Appellant-Appellant,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent-Respondent.
-------------------------------------
DARELLE NELSON,
Appellant-Respondent,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent-Appellant.
-------------------------------------
NEEDHAM FITZPATRICK,
Appellant-Appellant,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent-Respondent.
-------------------------------------
Argued March 1, 1994 -- Decided June 21, 1994
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
265 N.J. Super. 191 (1993).
J. Michael Blake, Assistant Deputy Public
Defender, argued the cause for appellant
Douglas Booker and respondent Darelle Nelson
(Susan L. Reisner, Acting Public Defender,
attorney).
Jay L. Wilensky, Assistant Deputy Public
Defender, argued the cause for appellant
Needham Fitzpatrick (Susan L. Reisner, Acting
Public Defender, attorney).
Michael D. Carlin, Deputy Attorney General,
argued the cause for respondent and appellant
New Jersey State Parole Board (Deborah T.
Poritz, Attorney General of New Jersey,
attorney; Joseph L. Yannotti, Assistant
Attorney General, of counsel).
The opinion of the Court was delivered by
O'HERN, J.
This appeal concerns the "gap-time credit" provision, found
at N.J.S.A. 2C:44-5(b)(2) (hereinafter 5(b)(2)). That section
governs sentencing at different times for multiple offenses. The
provision requires that a defendant who has been sentenced to
imprisonment and is subsequently sentenced to another term for an
offense committed prior to the imposition of the former sentence
(other than an offense committed while in custody) be "credited"
at the time of the second sentence for so much of the term of
imprisonment as the defendant has served on the prior sentence.
In Richardson v. Nickolopoulos,
110 N.J. 241 (1988)
(Richardson II), we explained that the use of the expression
"gap-time credit" was not to be confused with the usual credit
for presentence time referred to as "jail credit." We explained
that 5(b)(2) was a partial adaptation of a provision in the Model
Penal Code that establishes a "`limit on the cumulation of
consecutive sentences.'" Id. at 243 (quoting Model Penal Code §
7.06 commentary at 272 (1962)). To limit such cumulation, when
sentences for multiple offenses are imposed on different
occasions, section 7.06 restricts the sentencing authority of
courts by requiring them to apply to the later sentence a credit
for time served between the two sentencing hearings if the later
sentence is for a crime committed prior to the earlier sentence.
We explained in Richardson II that "[w]hat the MPC had in mind,
then, in speaking of a `credit' was in fact a limit on the
maximum term of imprisonment that could be imposed on the
sentencing occasion, not a declaration that the time served on
the prior sentence be regarded as time served on the current
sentence." Id. at 244. The general purpose behind the provision
is to avoid the manipulation of trial dates to the disadvantage
of defendants and to put defendants in the same position that
they would have been "had the two offenses been tried at the same
time." Model Penal Code, supra, § 7.06 commentary at 278.
Our Code does not limit the aggregate of consecutive terms
imposed on separate occasions. We thus had to determine in
Richardson II what meaning to ascribe to the 5(b)(2) provision
when the imposition of the later sentence includes a judicially-imposed parole bar intended to be consecutive to the earlier
sentence. Richardson had been sentenced to a five-year term of
imprisonment with a two-and-one-half-year parole bar, to be
served consecutive to an earlier three-year sentence. Richardson
sought to have the two-and-one-half-year parole bar reduced by
336 days of gap time that he had already served on the three-year
sentence at the time he received the five-year sentence. We
declined to apply gap-time credit to the front end of the second
sentence. Otherwise, the credit would reduce the parole bar that
the sentencing court had imposed as punishment for the offense.
Such an application of the credit would allow the prisoner a free
crime because he or she would not serve time for the offense for
which the court imposed the second sentence. Rather, we credit
gap time to the back end of the sentence. In that way, we
effectuate the plain language of the statute, which requires time
served on the later offense to be credited to the permissible
aggregate length of the term or terms remaining to be served. At
the same time, we left open in Richardson II the question of how
defendants might benefit from our decision to credit gap time to
the back end of the sentence.
We granted certification to review two issues posed in these
appeals.
134 N.J. 486, 487 (1993). First, do gap-time credits,
as a limit on the total possible sentence, correspondingly reduce
the authority of a court to impose a judicial parole bar?
Second, do gap-time credits proportionately advance a defendant's
primary parole-eligibility date when neither a judicial nor a
statutory parole bar has been imposed? We answer the questions
"no" and "yes," respectively, as did the Appellate Division.
Thus, we affirm the judgment of the Appellate Division. However,
except for the prisoners currently before us and others already
appealing the same issues, we will apply the principles of this
decision prospectively in order to minimize administrative
difficulties.
The cases of Booker and Fitzpatrick present essentially the first question, whether gap-time credits reduce the authority of a court to impose a parole bar; thus, whether we use Booker's or Fitzpatrick's case, our analysis and conclusions remain the same. For ease of analysis, we refer only to the facts in Booker. The facts of Fitzpatrick's case are set out fully in the opinion below. 265 N.J. Super. 191, 194-95 (1993). We summarize the facts in Booker as follows. (We eliminate all references to concurrent terms that were imposed at the same sentencing hearing for the sake of simplicity.)
Sentence One for Crime Two (imposed 2/9/90): twenty years with ten-year judicial parole bar.
Sentence Two for Crime One (imposed 5/25/90): fifty years
with twenty- five-year
judicial
parole bar,
concurrent to
Sentence One.
Specifically, Booker asks whether the gap-time credit of 106 days
reduces his twenty-five-year parole bar.
First, Booker argues that Richardson II should not apply to
him because his situation can be distinguished from that of
Richardson on the basis that his sentences are concurrent,
whereas Richardson's were consecutive. He contends that he
should be put back where he would have been "had the two offenses
been tried at the same time." Model Penal Code, supra, § 7.06
commentary at 278. His twenty-five year parole bar, Booker says,
should commence to run at the earlier date. That would, in
effect, make the sentence retroactive and equate gap time with
jail time, a result that we do not believe the Legislature
intended. See N.J.S.A. 2C:44-5(e)(1) (providing that "[w]hen
terms of imprisonment run concurrently, the shorter terms merge
in and are satisfied by discharge of the longest term").
Second, Booker argues that at the very least the 106 days
has "perforce" the effect of reducing the second sentence's
parole bar by fifty-three days. He reasons that gap-time credits
are a limit on the maximum term of imprisonment that a court can
impose at sentencing. Thus, he contends that his second sentence
itself has been reduced by 106 days. He argues that because he
received the maximum possible judicial parole bar, i.e., one-half
of his base term of fifty years, he therefore is entitled to have
fifty percent of the 106 days (i.e., fifty-three days) subtracted
from the second sentence's parole bar of twenty-five years.See footnote 1
That argument, while internally logical, is not supported by the
language of the Code.
N.J.S.A. 2C:43-6, which authorizes the imposition of
judicial parole bars, does not speak in terms of calculating the
parole bar on the basis of the aggregate term that courts may
impose. Rather, the statute provides that when the aggravating
factors substantially outweigh the mitigating factors, the court
may "fix a minimum term [of parole ineligibility] not to exceed
one-half of the term set pursuant to subsection a. * * * ."
N.J.S.A. 2C:43-6(b). Subsection (a) establishes the base terms
for imprisonment. For example, the base term for a crime of the
first degree is between ten years and twenty years; the term for
a second-degree crime is between five years and ten years. We
are satisfied that the Legislature did not contemplate that the
intended effect of 5(b)(2) would be to reduce the authority of
courts to impose a ten-year parole bar on a first-degree offense
such as aggravated sexual assault.
By way of analogy, we may consider jail credit. If a
prisoner had served 365 days before the imposition of a twenty-year sentence for armed robbery, the one-year jail credit would
not limit the potential judicial parole bar to nine-and-one-half
years (i.e., fifty percent of nineteen years). The maximum
possible parole bar would still be ten years (i.e., fifty percent
of twenty years). (Of course, the prisoner would serve only nine
years subsequent to sentencing before becoming eligible for
parole.) In addition, to assume that the Legislature would
expect courts to impose a reduced base term of, for example,
nineteen years and 259 days, from which any parole bar would have
to be calculated, is unrealistic. Judges do not impose sentences
in such terms. The Legislature would not have intended such an
administrative irregularity. Hence, we agree with the Appellate
Division that "a period of parole disqualifier is an absolute
term, against which there are to be no credits (other than jail
credits)." 265 N.J. Super. at 207. Accordingly, we reject
Booker's contention that his gap-time credit should reduce his
parole bar.
The question of whether gap-time credits advance primary parole-eligibility dates is much closer. Respondent Darelle Nelson raised the issue. Nelson received the following sentences.
Sentence One for Crime Two (imposed 5/11/90): four-year sentence, no parole bar.
Sentence Two for Crime One (imposed 12/14/90): five-year sentence, no parole bar, concurrent with Sentence One.
Defendant Nelson argues that his gap-time credit of 218 days
should advance his primary parole-eligibility date.
In Richardson II, supra,
110 N.J. 241, the Attorney General
suggested hypothetically that although gap-time credits do not
effect a front-end reduction of the aggregate sentence (and
thereby reduce any judicial or statutory parole bar), they may
effect a back-end reduction of the aggregate sentence and thus
advance proportionately the primary parole-eligibility date,
which is a function of the aggregate sentence. Under that
interpretation, the effect of the provision is to reduce the
total sentence by the gap period, thus requiring the Parole Board
to calculate primary parole eligibility based on the new reduced
sentence, which would result in a shorter parole-ineligibility
period. Richardson had argued that unless we applied his gap-time credits to his parole bar, the statute would be meaningless.
The interpretation now adopted by defendant Nelson was suggested
merely as a means of responding to Richardson. Because the issue
was not properly before us in Richardson II, we did not resolve
it.
The Parole Board urges us not to accept Nelson's argument.
N.J.S.A. 30:4-123.51(a) (the Parole Act) provides, in part, the
following:
Each adult inmate sentenced to a term of
incarceration in a county penal institution,
or to a specific term of years at the State
Prison or the correctional institution for
women shall become primarily eligible for
parole after having served * * * one-third of
the sentence imposed where no mandatory
minimum term has been imposed less
commutation time for good behavior * * * and
credits for diligent application to work and
other institutional assignments * * *.
The Parole Board emphasizes the plain language of the statute, "one-third of the sentence imposed," and explains that it is only when the sentencing court itself reduces the sentence that parole eligibility is advanced. The Board reasons that the Legislature would have mentioned that gap-time credits reduce the one-third
period if that is what the Legislature had intended. We are
informed, however, that jail credits, although also not mentioned
in the Parole Act, do serve to advance primary parole-eligibility
dates. The question is close, but we believe that if we are to
give any meaning at all to the provision, it must involve some
reduction of the cumulative period of time to be served -- a
limit on the maximum term of imprisonment that can be imposed at
sentencing. The parole laws provide that prisoners will become
primarily eligible for parole when they have served one third of
their sentences. As with other types of sentencing credits, gap-time credits must be determined by the court at sentencing. The
Parole Board is not responsible for awarding such credits. We
could remand such matters to the trial courts for recalculation
of the sentences imposed, but we think that such a solution would
be unwieldy. Because the other administrative credits must be
calculated by the Parole Board (and because those credits may
change for misconduct), it makes sense that once credits have
been awarded by the sentencing court, "the Parole Board must
compute defendant's parole eligibility date on the basis of the
reduced aggregate sentence." 265 N.J. Super. at 208. We do not
anticipate the same administrative problems that would have
arisen in attempting to apply gap-time credits to alter judicial
parole bars. In essence, the prisoner receives for the gap time
a one-third credit on the actual time to be served before parole
eligibility commences.
A final question is whether gap-time credits affect the aggregate of consecutive sentences. For example, assume that Nelson's sentences had been consecutive rather than concurrent. Would the 72 days of credit (one-third of the 218 days of gap time) reduce the actual time to be served on the nine-year aggregate term? The opinion below suggests that in the case of consecutive sentences the credit does not advance primary parole-eligibility dates because the purposes of the credit are not implicated. Returning to the Model Penal Code, the purpose of gap-time credits is to put the defendant in the position in which he would have been "had the two offenses been tried at the same time." Model Penal Code, supra, § 7.06 commentary at 278. Whether Nelson receives five years consecutive to four or four years consecutive to five, so the argument goes, makes no difference. In either case the aggregate is the same, nine years, unlike the situation in which a delay in sentencing on an earlier five-year term to be served concurrent to a four-year term can result in more jail time. That argument, like Booker's argument, has logical appeal, but the plain language of the gap-time statute clearly states that the credits apply "[w]hether the court determines that the terms shall run concurrently or consecutively." N.J.S.A. 2C:44-5(b)(2) (emphasis added). Circumstances may arise in which the interplay of jail credits (given only for the offense for which the prisoner is serving time) and gap-time credits (given for other sentences being
served by the prisoner) could affect the total time to be served.
Furthermore, an across-the-board application of gap-time credits
to both concurrent and consecutive sentences achieves the
provision's purpose to deter delay (whether due to dilatory
tactics or simple unavailability of court or counsel). After
all, the prosecutor will not know in advance if the sentences are
to be consecutive or concurrent. Hence, we hold that the gap-time statute applies to reduce the aggregate of consecutive
sentences.
Our holding does not contradict the Attorney General's
Advice Letter AAA No. M85-6515 or the Administrative Office of
the Court's memorandum dated October 15, 1985, both of which
declare that the determination of gap-time credits is part of the
sentencing process to be conducted by the court. We foresee no
administrative difficulty in the Parole Board molding its
regulations to reflect that the "sentence imposed," N.J.S.A.
30:4-123.51(a), should be reduced by any gap-time credits that
the prisoner has been awarded.
Finally, we are aware of the problem that a retroactive
ruling would create. Retroactivity would force the Parole Board
to recalculate primary parole-eligibility dates in the many cases
in which gap-time credits have been awarded. The Parole Board
has undoubtedly set its internal procedures in place for that
very important final decision on parole. Given that 5(b)(2) has
been codified since 1979, applying this ruling prospectively,
except for cases now on appeal, can hardly be thought to raise an
ex post facto problem.
We are cognizant of the Act's internal inconsistencies as well as the substantial difficulties in applying the Act. "At the present time, gap-time credits remain `a riddle wrapped in a mystery inside an enigma.'" State v. Edwards, 263 N.J. Super. 256, 262 (App. Div. 1993). As counsel for appellant Booker puts it, "Although the Soviet Union has disintegrated, the question of `gap time' remains." We wish that we could write a computer program that would answer each gap-time question as it arises. We believe, however, that the Appellate Division's disposition achieves the main purpose of gap-time credits.
In summary, we hold that where a defendant is sentenced to a period of parole ineligibility, gap-time credit only reduces the aggregate term to be served after the defendant serves the mandatory period of incarceration. Where a defendant receives no mandatory period of incarceration, gap-time credit reduces the aggregate term and the Parole Board must compute defendant's parole eligibility date on the basis of the reduced aggregate sentence.
If gap-time credits do not affect prisoners' parole-eligibility dates, we would truly have what the Public Defender calls "bogus credits," a calculation without any effect. Subtracting 106 days from the back end of a fifty-year sentence does not confer any
considerable benefit on most offenders because those offenders
with long parole bars will have "maxed out" long before the
credit becomes relevant. On the other hand, in cases of
relatively short sentences involving a fairly substantial period
of gap time, as for example in Nelson's case, the credits serve a
valid legislative purpose.
Our concurring and dissenting member makes a persuasive
argument against our resolution of the issues. He is correct in
asserting that crediting gap time to the front end of concurrent
sentences would better achieve the goal of putting defendants in
the same position in which they would have been "had the two
offenses been tried at the same time." Model Penal Code, supra,
§ 7.06 commentary at 278. However, at the same time, that
interpretation would lead in many cases to the neutralization of
mandatory-minimum periods of parole ineligibility, a result that
we believe the Legislature never intended. Hence we adhere to
our holding in Richardson II, supra,
110 N.J. 241, that gap-time
credits apply to the back end of sentences. That holding applies
to consecutive sentences as well as concurrent sentences, as
indicated by the plain language of the statute. Application of
the credits to consecutive sentences comports with our basic
understanding that the credits are a "`limit on the cumulation of
consecutive sentences.`" Id. at 243 (quoting Model Penal Code,
supra, § 7.06 commentary at 272).
On a final note, candor requires us to reiterate Judge
Baime's recent observation about this "arcane subject":
"Perhaps it is time for us to admit defeat and tell the
Legislature in plain terms that we do not know what that body
intended when it enacted the gap time statute. With our respect,
we commend this matter to the Legislature for its consideration."
State v. Guaman,
271 N.J. Super. 130, 135 (App. Div. 1994).
The judgments of the Appellate Division are affirmed.
Justices Clifford, Handler, Pollock, and Garibaldi join in
this opinion. Justice Stein has filed a separate opinion
concurring in part and dissenting part. Chief Justice Wilentz
did not participate.
SUPREME COURT OF NEW JERSEY
A-103/104/
105 September Term 1993
DOUGLAS BOOKER,
Appellant-Appellant
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent-Respondent.
---------------------------------
DARELLE NELSON,
Appellant-Respondent,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent-Appellant.
---------------------------------
NEEDHAM FITZPATRICK,
Appellant-Appellant
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent-Respondent.
_________________________________
STEIN, J., concurring in part and dissenting in part.
The Court today struggles to construe a statute the purpose and meaning of which continue to confound judicial efforts to apply it. Although my interpretation differs from that of the Court, I join the majority's observation that legislative
clarification of the gap-time statute is essential to eliminate
the uncertainty that clouds its application. Ante at ___ (slip
op. at 14-15).
The Legislature extracted the gap-time provision from the Model Penal Code (MPC) section on consecutive and concurrent sentencing. See MPC § 7.06(2)(b) (1980). The MPC limited the aggregate of consecutive sentences that could be imposed for multiple offenses to the longest extended term that could be imposed for one offense. See id. § 7.06(1)(c). The purpose of the gap-time provision in the MPC was to enforce that sentencing limit in situations in which a defendant is sentenced at different times for crimes committed prior to imposition of the first sentence. See id. § 7.06 commentary at 277-79.
As explained in Richardson v. Nickolopoulos, 110 N.J. 241, 243-44 (1988), in enacting the Code of Criminal Justice (Code) the Legislature adopted the MPC gap-time provision but deleted the MPC sentencing limit. Thus, the Legislature appears to have enacted an enforcement provision without also adopting the provision that was intended to be enforced. "What meaning, then, should we ascribe to this provision in our Code?" Richardson, supra, 110 N.J. at 244.
In answering that question, the Court should not rely on the legislative history for guidance. A primary interpretive source is the commentary of the Criminal Law Revision Commission
(Commission) to its 1971 draft of the Code. See 2 New Jersey
Penal Code: Final Report of the Criminal Law Revision Commission
(1971). However, that commentary is not illuminating because the
Commission's 1971 draft included the MPC sentencing limit that
the Legislature later deleted from the Code. See 1 id. § 2C:44-5a(3). The Commission's commentary addresses the gap-time credit
in the context of that sentencing limit. See 2 id. at 336.
Furthermore, when the Senate deleted the sentencing limit
from the bill that ultimately became the Code, it did so without
explanation. Hence, we cannot easily understand the purpose
underlying the Senate's retention of the provision that enforced
the sentencing limit.
The Court identifies two issues that the three appeals before us present: (1) whether gap-time credits, by reducing an overall sentence, "correspondingly reduce a court's authority to impose a judicial parole bar," and (2) whether "gap-time credits proportionately advance a defendant's primary parole-eligibility date" when no mandatory minimum has been imposed. Ante at ___ (slip op. at 4). The majority answers the first question "no" and the second "yes," ante at ___ (slip op. at 4). It concludes that gap time should be credited to reduce an aggregate sentence only after a parole bar has been calculated, and that gap time should be credited to reduce an aggregate sentence prior to the calculation of a defendant's parole-eligibility date.
The issues could be restated more generally, however,
requiring us simply to decide (1) how gap-time credits apply to
concurrent sentences imposed at different times, and (2) how they
apply to consecutive sentences imposed at different times. The
answer to those broader questions is informed by attempting to
identify the purpose that the gap-time credit should serve in our
Code. As the Appellate Division observed in State v. Edwards,
263 N.J. Super. 256 (1993), "The majority view is that the
statute was designed to counteract the dilatory tactics of a
prosecutor in pursuing a conviction for an earlier offense after
a defendant had been sentenced on another crime." Id. at 260.
This Court similarly acknowledges that "[t]he general purpose
behind the provision is to avoid the manipulation of trial dates
to the disadvantage of defendants and to put defendants in the
same position that they would have been 'had the two offenses
been tried at the same time.'" Ante at ___ (slip op. at 3)
(quoting MPC, supra, § 7.06 commentary at 278); see ante at ___
(slip op. at 10) (same). To attain that end, gap-time credits
should be applied in a manner that adjusts the affected sentences
to what they would have been had they been imposed at the same
time.
With respect to concurrent sentences imposed at different
times, that goal is achieved by crediting gap time to the front
end of the subsequent concurrent sentence, thereby reducing the
parole-ineligibility portion of the subsequent sentence, whether
that segment is the result of a judicially-imposed parole bar or
the parole ineligibility calculated by the Parole Board. The
majority rejects that approach, determining that application of
gap-time credit to the front end of a subsequent concurrent
sentence "would, in effect * * * equate gap time with jail time."
Ante at ___ (slip op. at 5).
A contrasting view is that gap time accounts for the time
served between the imposition of the first sentence and the
imposition of subsequent sentences; jail credit applied pursuant
to Rule 3:21-8 accounts for the time served between arrest and
imposition of the first sentence. Arguably, the two concepts are
distinct and remain so even if gap time is used to synchronize
the running of concurrent sentences. See Edwards, supra, 263
N.J. Super. at 263 (discussing distinction between jail credit
and gap-time credit).
Furthermore, application of gap-time credit to the back end
of a subsequent concurrent sentence does not appear to accomplish
the goal of insuring that a defendant does not receive different
treatment for multiple offenses solely on account of being
sentenced at separate times. For example, respondent Nelson
received a four-year sentence with no parole bar on May 11, 1990,
and a five-year concurrent sentence with no parole bar 218 days
later on December 14, 1990. Had both sentences been imposed on
May 11, 1990, the date of Nelson's first sentencing, Nelson would
have been eligible for parole on January 8, 1992, after serving
608 days (one-third) of his five-year sentence, disregarding
good-behavior and work credits. See N.J.S.A. 30:4-123.51a.
Under the majority's approach, the Parole Board would credit
Nelson's 218 days of gap time against the back end of his five-year sentence, resulting in a sentence of 1608 days (1826 days
(five-year sentence) - 218 days = 1608 days). Leaving aside
good-behavior and work credits, the Board would then determine
Nelson's primary parole-eligibility date on that sentence by
calculating one-third of the reduced sentence of 1608 days, or
536 days. Nelson would be eligible for parole on June 2, 1992,
after serving 536 days from the date the second sentence was
imposed. N.J.A.C. 10A:71-3.2(e) (stating that parole-eligibility
term on subsequent concurrent sentence is calculated from date
subsequent sentence began).
In comparison, by crediting Nelson's gap time to the front
end of his subsequent concurrent sentence, Nelson's 218 days of
gap time would be credited directly against the 608 days (one-third of five years) he would have been required to serve on the
five-year second sentence. Thus, Nelson would be required to
serve only 390 days from the date the second sentence was
imposed, making Nelson's primary parole-eligibility date January
8, 1992 -- the same as it would have been had he been sentenced
for both convictions on May 11, 1990.
With respect to subsequently-imposed consecutive sentences,
the Appellate Division concluded that gap-time credits should not
reduce the length of an aggregate consecutive sentence.
265 N.J.
Super. 191, 200-01 (1993). See also State v. Lawlor,
222 N.J.
Super. 241, 245 (App. Div. 1988) ("If the judge imposes the
current term consecutively to the previous term, the time served
under the previous term will not be credited against the current
term."); Cannel, New Jersey Criminal Code Annotated, comment 4 on
N.J.S.A. 2C:44-5 (1992-93) ("If the later sentence is
consecutive, the credit has little effect since credit against
the aggregate sentence and credit against the first sentence
amount to the same thing.").
Admittedly, the gap-time provision appears to require the
application of gap-time credits to consecutive sentences, stating
that the time shall be credited "[w]hether the court determines
that the terms shall run concurrently or consecutively * * * ."
N.J.S.A. 2C:44-5b(2). Although we do not ordinarily interpret a
statute in a manner that renders language superfluous, we will
not follow a plain-meaning analysis when the result is contrary
to any reasonable view of the legislative intent. See Roig v.
Kelsey, ___ N.J. ___, ___ (1994) (slip op. at 21-23).
The majority's application of gap time to the back end of a
subsequently-imposed consecutive sentence produces a result that
the Legislature would not have intended: a defendant sentenced
at the same time to consecutive terms for two crimes will serve
more time than a defendant sentenced at separate times to
consecutive terms for the same crimes. To illustrate, assume a
defendant is sentenced on January 1, 1995, for two crimes, and
receives consecutive sentences of six years on each crime. The
defendant's aggregate sentence would be twelve years. Not
counting good-behavior and work credits, the defendant would be
eligible for parole on January 1, 1999, after serving four years:
one-third of each sentence (two years) served back-to-back. See
N.J.A.C. 10A:71-3.2(d). Furthermore, the defendant's entire
aggregate term would end on December 31, 2007.
An alternative assumption is that the same defendant
receives the same sentences for the same crimes but is sentenced
separately, with the second sentencing occurring one year after
the first. If the one year of gap time is applied to the back
end of the defendant's subsequently-imposed consecutive six-year
term prior to the calculation of the primary parole-eligibility
date, as the majority contemplates, the defendant's period of
parole ineligibility on the second sentence would be one-third of
five years, or approximately twenty months. Adding that period
to the two-year period required to be served on the first
sentence, the defendant's primary parole-eligibility date would
be September 1, 1998. Furthermore, the defendant's entire
aggregate term would end on December 31, 2006, one year sooner
than if the two sentences had been imposed simultaneously. Thus,
that defendant would serve less time if he were sentenced at
separate times for each crime than if he were sentenced for both
crimes at the same time.
The majority supports application of gap-time credits to
consecutive sentences on the basis that it "comports with our
basic understanding that the credits are a '"limit on the
cumulation of consecutive sentences."'" Ante at ___ (slip op. at
14) (quoting Richardson, supra, 110 N.J. at 243 (quoting MPC,
supra, § 7.06 commentary at 272)). However, the Legislature's
recent amendment of N.J.S.A. 2C:44-5a(2), see L. 1993, c. 223,
contradicts that assumption. That amendment states: "There
shall be no overall outer limit on the cumulation of consecutive
sentences for multiple offenses."
The most reasonable interpretation that I can ascribe to the gap-time provision in our Code is one that insures that a defendant's exposure for multiple offenses committed prior to the imposition of a sentence on those offenses will not be affected by the number and timing of the sentencing proceedings. That purpose is furthered by applying the gap-time credit to the front end of a subsequently-imposed concurrent sentence, and not crediting gap time to a subsequently-imposed consecutive sentence. Thus, appellant Booker's 106 days of gap time would be credited to the front end of his concurrent sentence, thereby reducing accordingly the twenty-five-year parole disqualifier imposed on that sentence; and respondent Nelson's 218 days of gap time would be credited to the front end of his concurrent five-year sentence, thereby reducing the length of time Nelson would be required to serve on that sentence; but appellant Fitzpatrick's two years and 347 days of gap time would not be credited to reduce the length of his subsequent consecutive sentences.
To the extent that the majority concludes that gap time should not be credited to reduce the length of a judicially-imposed parole bar on a consecutive sentence, I concur in the judgment. However, I dissent from the judgment to the extent that it reflects the majority's holding that gap time should be credited to reduce the length of consecutive sentences and that it should be applied to the back end of concurrent sentences.
Footnote: 1The argument appears rather insignificant in the context of Booker's sentence of fifty years, which is a long time to wait for a 106-day credit. However, this case is atypical. Booker's base term on Sentence Two is so great because he pleaded guilty to five multi-count indictments and agreed to the aggregate fifty-year term. Others with much shorter sentences could benefit substantially if we were to adopt Booker's position.