On appeal from the New Jersey State Parole Board and from the Superior Court, Law Division, Mercer County, respectively.
Antell, O'Brien and Scalera*fn1, Judges. The opinion of the court was delivered by Scalera, J.A.D.
This appeal implicates the manner in which "jail time" and "gap-time" credits are to be calculated and credited to a defendant at sentencing.
On February 16, 1985, John Sheil committed an armed robbery of a Pizza Hut in Hamilton Township, Mercer County, New Jersey, contrary to N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6. Pursuant to a plea agreement he pleaded guilty to that charge on April 8, 1987. As part thereof the State agreed to dismiss the remainder of that particular indictment and to recommend that any custodial sentence not exceed 15 years with a maximum parole ineligibility of 7 1/2 years. Moreover, the sentence was to run concurrently with the prison terms he was then serving on convictions in other counties. It was agreed further that he was to receive "jail credit" for the time served on the other offenses as of April 8, 1987 because he actually would not be sentenced until after he testified at trial against his codefendant on that indictment. At the time, Sheil was already serving time on four other convictions, the most pertinent of which was one in Middlesex County on which he had been sentenced to a term of 15 years with a parole ineligibility period of 5 years on February 10, 1986.
Sheil was not actually sentenced on the Mercer County charge until February 5, 1988. He was given a 15 year custodial term with a minimum parole ineligibility period of 7 1/2 years to be served concurrently with the terms he was then serving. However, such concurrency was to start as of April 8, 1987 (the date of the plea agreement) but was not to be "coterminus" with such other terms. He was allowed what was termed as "jail credit" to start "April 8, 1987 to the date of receipt . . . to be credited on total aggregate sentence defendant must serve." Thereafter, on February 19, 1988 Sheil moved the sentencing judge to amend the Judgment of Conviction to further reflect credits due to him from February 10, 1986 (the date of the Middlesex County sentence) pursuant to N.J.S.A. 2C:44-5(b)(2). On March 23, 1988 the judge responded that only "jail credit" from April 8, 1987 would be allowed.
Defendant therefore appealed from what he conceived to be the denial of any gap-time credits under N.J.S.A. 2C:44-5(b)(2). That appeal was considered on the Excessive Sentence Oral Argument calendar on May 10, 1989, as a result of which we did not recognize the more basic problem of the legality of the original plea agreement. As a consequence, we remanded the matter to the trial judge for him to reconsider the sentence, but only in terms of time credits to be extended to Sheil "under N.J.S.A. 2C:44-5(b)(2)."
Upon remand in August, 1989 the sentencing judge ruled that Sheil was entitled to gap-time credit from February 10, 1986 to April 8, 1987 and that his parole ineligibility was to be further reduced, but only by one-half of the allowed gap-time credit. Thus, the Judgment of Conviction was amended to award gap-time credit for the period of February 10, 1986 to April 8, 1987 and the minimum parole eligibility was reduced by one-half of this period of time. The jail credit originally given for the period from April 8, 1987 to February 5, 1988 remained unchanged.
On October 23, 1989 the New Jersey State Parole Board informed Sheil that the time credits allowed by the sentencing judge from February 10, 1986 (date of first sentence in Middlesex County) to April 8, 1987 (date of guilty plea in Mercer County), and from April 8, 1987 to February 5, 1988 (date of second sentence in Mercer County) would be applied to reduce his maximum date. However, none of the credits would be applied in the calculation of his parole eligibility date.
Accordingly, Sheil filed these two appeals. One in which he contends that the State Parole Board erred in refusing to credit his parole eligibility date (A-1882) and another, captioned in the criminal matter, contending that the sentencing judge erred in calculating the appropriate credits due to him. (A-1935).*fn2
On appeal, Sheil posits the issues as follows:
I. The sentencing court erred in the manner in which it applied ...