On appeal from Superior Court of New Jersey, Law Division, Ocean County.
Petrella and Baime. The opinion of the court was delivered by Baime, J.A.D.
Defendant entered a retraxit plea of guilty to an indictment returned by the Ocean County grand jury charging him with third degree burglary (N.J.S.A. 2C:18-2). The indictment and the resulting conviction emanated from an incident which occurred on May 28, 1984, wherein defendant burglarized a restaurant and stole items totaling $1,168.39 in value. Pursuant to the plea agreement, the trial judge imposed an indeterminate term to run concurrently with a sentence then being served, and granted the State's motion to dismiss a related charge. Defendant was not given credit against the sentence imposed on the basis that any period of incarceration was wholly unrelated to his arrest and conviction for the burglary.
Although ambiguously phrased, defendant's sole argument on appeal is that the trial judge committed plain error by failing to grant credit for time spent in jail on other wholly unrelated charges. It is not altogether clear whether defendant is referring to periods of incarceration served pursuant to sentences imposed previously or time spent in jail pending disposition of other charges. In either case, we find that defendant's argument lacks merit.
The issue is presented within the context of a sparse and sketchy record which is permeated with error. On September 28, 1985, defendant was sentenced on a Middlesex County indictment to a probationary term of five years upon the condition that he participate in an in-patient drug treatment program. Defendant was not released from jail, however, because he faced charges in other counties. On January 17,
1986, defendant was sentenced to an aggregate custodial term of five years on two Essex County indictments (Ind. No. 3296-9-85 and Ind. No. 3297-9-85), charging him with two third degree crimes. This aggregate sentence was comprised of a three-year and a two-year term, the two to run consecutively. On July 18, 1986, defendant was sentenced to an indeterminate term on the Ocean County indictment, as noted above. As we have mentioned, the trial judge directed that this sentence, which is the subject of the present appeal, run concurrently with the custodial term then being served. The saga was completed on October 17, 1986, when defendant was sentenced on another Essex County indictment (Ind. No. 245-1-86) to an indeterminate term.
Against this factual backdrop, defendant contends that he should be given credit for the time he spent in jail between September 28, 1985, the date of the Middlesex County sentencing, and July 18, 1986, the date of the Ocean County sentencing. We interpret defendant's argument as contending that he should be given credit for the period of incarceration while awaiting disposition of the Essex County charges (Ind. No. 3296-9-85 and Ind. No. 3297-9-85), and the period of imprisonment which was imposed on those charges, up to the date of the Ocean County sentencing. The statutory predicate to defendant's assertion is N.J.S.A. 2C:44-5b(2). That section provides in pertinent part:
When a defendant who has previously been sentenced to imprisonment is subsequently sentenced to another term for an offense committed prior to the former sentence, other than an offense committed while in custody: Whether the court determines that the terms shall run concurrently or consecutively, the defendant shall be credited with time served in imprisonment on the prior sentence in determining the permissible aggregate length of the term or terms remaining to be served. . . .
Defendant contends that N.J.S.A. 2C:44-5b(2) was designed to counteract dilatory prosecution after an offender has been sentenced on one offense. He asserts that the effect of this
section is to treat all sentences as if they had occurred at the time the first sentence was imposed. It is argued that only by giving full credit against all concurrent sentences that full concurrency can be achieved and the dates of the successive sentences can be made irrelevant.*fn1
Before turning to the merits of the arguments advanced, we are compelled to digress and note that both the sentence under review and the sentences imposed on two of the three Essex County indictments (Ind. No. 3297-9-85 and Ind. No. 245-1-86) are illegal.*fn2 As noted previously, defendant received a two-year custodial term on Ind. No. 3297-9-85, which charged him with a third degree crime. Obviously, that sentence fell below the three to five year sentencing range provided by N.J.S.A. 2C:43-6a(3). So too, the indeterminate term imposed on the Ocean County indictment, which is the subject of this appeal, and that subsequently imposed in Essex County (Ind. No. 245-1-86), are illegal because defendant was sentenced previously to a state institution. In that respect, N.J.S.A. 2C:43-5 refers to N.J.S.A. 30:4-147, which provides that a defendant who has been sentenced to a state prison term cannot receive an indeterminate sentence. We are thus constrained to vacate the sentence imposed on the Ocean County indictment and those imposed on the Essex County indictments (Ind. No. 3297-9-85 and Ind. No. 245-1-86) and remand for resentencing. [221 NJSuper Page 578] Because the trial judges will inevitably be compelled to confront the issue presented by this appeal, we add the following brief comments. We note that N.J.S.A. 2C:44-5b(2) has received somewhat uneven treatment in several of our decisions. Compare State v. Richardson, 208 N.J. Super. 399, 410, 413-415 (App.Div.1986), certif. den. 105 N.J. 552 (1986) with State v. Hall, 206 N.J. Super. 547, 550 (App.Div.1985); State v. Hugley, 198 N.J. Super. 152, 158 (App.Div.1985). We also observe that our Supreme Court is presently reviewing the question. See McNamara v. Nickolopoulos, 108 N.J. 193 (1987) and Richardson v. Nickolopoulos, 108 N.J. 181 (1987). While defendant's argument is not without some support, Cannel, Title 2C, New Jersey Code of Criminal Justice (1987),*fn3 at 757, we find that his assertion is belied by the plain meaning of the statutory language. By its very terms, N.J.S.A. 2C:44-5b(2) states that a prior sentence must be credited against a later one " in determining the permissible aggregate ...