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Richardson v. Nickolopoulos

Decided: April 13, 1988.

DONALD RICHARDSON, APPELLANT,
v.
LOUIS NICKOLOPOULOS, CHAIRMAN OF THE NEW JERSEY STATE PAROLE BOARD, RESPONDENT



On certification to the Superior Court, Appellate Division.

For affirmance -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by O'Hern, J.

O'hern

Once again, we must reconcile anomalies and ambiguities that inhere in the Code of Criminal Justice (Code), N.J.S.A. 2C:1-1 to 98-4, occasioned by the Legislature's selective inclusion and omission of provisions of its conceptual source, the Model Penal Code (MPC).

This appeal concerns the meaning of N.J.S.A. 2C:44-5b(2), which governs sentencing at different times for multiple offenses. This provision requires that when a defendant who has been sentenced to imprisonment 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), the defendant shall be "credited" at the time of the second sentence for so much of the term of imprisonment as has been served on the prior sentence. This statutory credit is not to be confused with the usual credit for presentence time, referred to as "jail credits," which is required to be applied in reduction of sentences under Rule 3:21-8. The Attorney General refers to the 2C:44-5b(2) credit as "gap-time credit," since it applies to the gap between the sentences. We shall use that expression to distinguish such credit from the Rule 3:21-8 "jail credit," the usual credit for presentence time.

N.J.S.A. 2C:44-5b(2) is found in the chapter of the Code dealing with the authority of courts in sentencing for multiple offenses. The text in which it is found is:

a. Sentences of imprisonment for more than one offense.

When multiple sentences of imprisonment are imposed on a defendant for more than one offense, including an offense for which a previous suspended sentence or sentence of probation has been revoked, such multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence, except that:

(1) The aggregate of consecutive terms to a county institution shall not exceed 18 months; and

(2) Not more than one sentence for an extended term shall be imposed.

b. Sentences of imprisonment imposed at different times.

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:

(1) The multiple sentences imposed shall so far as possible conform to subsection a. of this section; and

(2) 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. [ N.J.S.A. 2C:44-5a, b.]

As we have observed on prior occasions, the New Jersey Code, during its course of legislative evolution, moved from a "rehabilitative" sentencing philosophy to a "just desert" sentencing philosophy. The ambiguity that we address here arises from the New Jersey Code's omission of a Model Penal Code provision that gives meaning to the "gap-time" credit when sentencing for multiple offenses on different occasions.

The original sentencing philosophy of the Model Penal Code (MPC) was that sentencing be for short and certain periods of time. See State v. Roth, 95 N.J. 334, 346-47 (1984). Hence, in dealing with sentencing for multiple offenses, the Model Penal Code established two basic principles. First, the decision whether to impose concurrent or consecutive sentences was granted to the sentencing court rather than to the Legislature. The second basic principle was "a limit on the cumulation of consecutive sentences. The occasional abuse that results in sentences built up to the level of 100 years or more illustrates the problem." Model Penal Code Commentary § 7.06 at 272 (footnote omitted).

To limit such cumulation, MPC § 7.06 restricts the sentencing authority of courts in two ways:

(1) by providing that when sentences for multiple offenses are imposed on one occasion, the maximum sentence to be imposed not exceed the "longest extended term authorized for the highest grade and degree of crime for which any of the sentences was imposed"; and

(2) by providing that when sentences for multiple offenses are imposed on different occasions,

(a) the overall outer limit again not exceed the extended term for the longest offense, and that

(b) credit be allowed on sentences for crimes committed prior to the first sentence for time served on the prior sentence.

The MPC Commentary explains these provisions as follows:

The paradigm [example] at which the subsection is aimed occurs when a defendant is tried, convicted and sentenced to imprisonment and subsequently is tried and convicted of a second offense committed prior to the imposition of the first sentence. In that event there is no basis for enlarging the limits on consecutive sentences that would otherwise be applicable had the two offenses been tried at the same time. The court is still free, therefore, to impose concurrent or consecutive sentences as the case may warrant, but is enjoined * * * to conform to the limits [of not exceeding the extended term for the most serious offense] so far as possible. Many recently enacted and proposed codes adopt a similar approach. [ Model Penal Code Commentary § 7.06 at 278 (footnote omitted).]

The Code Commentary refers to the adoption of N.J.S.A. 2C:44-5 as "similar to MPC," but there was a striking omission in the translation from the MPC to the New Jersey Code in that our Code has no limit on the aggregate of consecutive terms. (See Appendix.) We dealt with this omission in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), but only in the context of sentences for multiple offenses imposed on one occasion, exclusive of murder sentences; there we sought to establish guidelines for courts in the exercise of sentencing discretion.

What 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.

What meaning, then, should we ascribe to this provision in our Code? The question in this case has been phrased as whether the "gap-time" credit comes off the front or the end of the sentence. In fact, the defendant here seeks to have the time served on his prior sentence double-counted as though served as part of the judicial parole ineligibility bar expressly intended by the sentencing court to be consecutive to the prior

sentence. (See a bar chart of the sentence alternatives, infra at 249) Defendant's interpretation would, in some cases, wipe out any judicial or statutory parole bar on a sentence for a second offense. That interpretation is not supported by the legislative history of the provision; it conflicts with the plain language of the statute that requires that the time served on the later offense be "credited" to the "permissible aggregate length of the term or terms remaining to be served"; and it also conflicts with the sentencing goals of the Code.

We therefore affirm the judgment of the court below, which limited the effect of N.J.S.A. 2C:44-5b(2) to an overall restraint on the base term of the aggregated sentences.

I

Before addressing the facts of this case, a few observations are in order about the Code's overall legislative framework. The critical consequence of whether the "gap-time" credit is to be applied to the front or to the end of the sentence arises from the interrelationship of the Code of Criminal Justice, N.J.S.A. 2C:1-1 to 98-4, and the Parole Act of 1979, N.J.S.A. 30:4-123.45 to -123.69. We had occasion to review the interrelationship between the two acts in New Jersey State Parole Bd. v. Byrne, 93 N.J. 192 (1983), and In re Parole Application of Thomas Trantino, 89 N.J. 347 (1982).

Chronologically, the Code of Criminal Justice was passed first, L. 1978, c. 95 (effective Sept. 1, 1979), and the Parole Act second, L. 1979, c. 441 (effective May ...


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