DOUGLAS BOOKER V. NEW JERSEY STATE PAROLE BOARD DARELLE NELSON V. NEW JERSEY STATE PAROLE BOARD NEEDHAM FITZPATRICK V. NEW JERSEY STATE PAROLE BOARD
Case Date: 06/21/1994
Docket No: SUPREMECOURTSYLLABUS
(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.
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).
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
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.
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.
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").
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.
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.
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 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.
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.
"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).
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
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.
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.
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).
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).
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.").
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.
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.
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