DICKINSON R. DEBEVOISE, UNITED STATES DISTRICT JUDGE
This is a habeas corpus action by petitioner Francis Lorenzo, pursuant to 28 U.S.C. § 2254, seeking to compel the New Jersey State Parole Board to apply 39 days gap time
credit to reduce the portion of petitioner's term of imprisonment during which he was ineligible for parole.
Petitioner pleaded guilty to second degree armed robbery and on January 24, 1986 was sentenced by the New Jersey Superior Court in Somerset County to ten years imprisonment with a five year parole disqualifier. Petitioner subsequently pleaded guilty in Middlesex County to a first degree armed robbery that had been committed on the same day as the Somerset County robbery. On March 3, 1986, petitioner was sentenced in Middlesex County to fourteen years imprisonment with a seven year parole disqualifier. The guilty pleas were made pursuant to an agreement with the State that the maximum sentence imposed for either offense would be fourteen years with a seven year parole disqualifier and that the sentences would run concurrently.
In Somerset County the court awarded petitioner 181 days jail credit for the period he was incarcerated prior to his January 24 sentencing, pursuant to N.J.R. 3:21-8. In Middlesex County the court denied any credits to petitioner. Upon appeal from the denial of credits, the Appellate Division ordered the court to award petitioner 220 days credit on his 14 year term, 181 days of which were jail credit for the time served prior to imposition of the Somerset County sentence and 39 days of which were gap time credit for the time served between the January 24 and March 3 sentencing dates. On remand, the court awarded 220 days credit on the sentence, without distinguishing between the 181 day jail credit and the 39 day gap time credit, and without noting whether parole ineligibility term was to be reduced by either credit.
While the full 220 days credit was applied to petitioner's maximum 14 year sentence, the New Jersey State Parole Board reduced his seven year parole ineligible term only by the 181 day jail credit, and not by the 39 day gap time credit. Petitioner appealed the Parole Board's refusal to reduce his parole ineligible term by the 39 days gap time on several bases, including a claim that the action of the Parole Board violated the equal protection clause of the Fourteenth Amendment to the United States Constitution. The Appellate Division of the New Jersey Superior Court affirmed the Parole Board in a per curiam decision on November 25, 1987. Petitioner sought certification from the New Jersey Supreme Court on the same grounds presented in his Appellate Division brief. On April 12, 1988, certification was denied.
In order to understand petitioner's contentions it is necessary to examine certain of New Jersey's statutory and regulatory provisions governing aggregation of sentences imposed at different times and governing the establishment of parole eligibility dates when two or more sentences are imposed. New Jersey's law in this area is marked by "anomalies and ambiguities" resulting in part from "the Legislature's selective inclusion and omission of provisions of [the Criminal Code's] conceptual source, the Model Penal Code," Richardson v. Nickolopoulos, 110 N.J. 241, 540 A.2d 1246 (1988) (" Richardson II ") and resulting in part from the fact that judicial aggregation of sentences on the regulation of parole eligibility dates is governed by different statutes. State v. Richardson, 208 N.J. Super. 399, 506 A.2d 43 (App. Div. 1986), certif. denied, 105 N.J. 552, 523 A.2d 188 (1986) (" Richardson I ").
The critical statute in this case is N.J.S.A. 2C:44-5b(2) which governs sentencing at different times for multiple offenses. One of the problems the statute addressed was that which arose upon the imposition of concurrent sentences on different dates. For example, if two 5 year concurrent sentences were imposed on June 1, 1980, the defendant would receive, in effect, a 5 year term. However, if the very same sentences were imposed on different dates, one on June 1, 1980 and one on June 1, 1982 -- the defendant would receive a 7 year term. As the Court noted in Richardson I, "because the subsequent sentence was not imposed for two years after the former sentence, [defendant's] maximum sentence was extended by two years. The date of imposition of the subsequent sentence and the duration of that sentence determine whether the subsequent sentence was really concurrent as stated by the sentencing judge or whether it was concurrent in part and consecutive in part." 208 N.J. Super. at 410, 411.
Section 5b(2) addresses this situation by requiring 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 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 (the "gap time credit"). Thus in the example given above at the time of the June 1, 1982 sentence to a 5 year term, the defendant would be given credit for the 2 years already served on the June 1, 1980 sentence and his aggregate maximum term of imprisonment would be 5 years, exactly the same as if the two sentences had been imposed on the same date. The pertinent language of the statute is:
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:
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