On appeal from the Final Decision of the New Jersey State Parole Board.
Antell,*fn1 Dreier and Skillman. The opinion of the court was delivered by Dreier, J.A.D.
In these three appeals from final determinations of the State Parole Board, each petitioner contends that he has been given improper gap-time credits, which are required by N.J.S.A. 2C:44-5b. Although each of these cases requires a different analysis, we consolidate them for the purpose of this opinion.
The dates each petitioner committed the offenses for which he was sentenced and the dates and term of each sentence are easy to state. We need not consider any facts relating to the underlying offenses or sentencing factors.
Petitioner Douglas Booker:
Crime 1: On October 6, 1989, Booker pleaded guilty pursuant to a plea agreement to two counts of aggravated sexual assault under separate Union County indictments.
Crime 2: On November 28, 1989, Booker pleaded guilty pursuant to a plea agreement to various counts of aggravated sexual assault and burglary contained in five Essex County indictments for crimes committed December 15, 1988.
Sentence 1: On February 9, 1990, Booker was sentenced to concurrent twenty-year terms of imprisonment with a ten-year period of parole ineligibility in the Adult Diagnostic and Treatment Center (Avenel) pursuant to a plea agreement on the two Union County aggravated sexual assault charges (Crime 1).
Sentence 2: On May 25, 1990, Booker was sentenced by a different Judge to an aggregate sentence of fifty years with a twenty-five year period of parole ineligibility pursuant to a plea agreement on the five Essex County indictments (Crime 2). The
Judge refused to sentence Booker to Avenel. The Judge ordered this sentence to be served concurrently with the Union County sentence.
Booker appealed the Essex County sentence. In a September 16, 1991 order, we affirmed the sentence, A-6400-89T4, but remanded the matter for calculation of a gap time credit for the period between the impositions of sentence in Union and Essex Counties. On January 24, 1992, the Essex County Judge awarded Booker 106 days of gap time credit.
Booker then wrote to the New Jersey State Parole Board to inquire whether the 106 days of gap time credit would affect his parole eligibility. The Board replied in a February 28, 1992 letter that the 106 days of gap time credit would not affect computation of Booker's date of parole eligibility. Booker appealed.
Petitioner Needham Fitzpatrick:
Crime 1: On February 19, 1986, Ocean County Indictment 133-86 charged Fitzpatrick with three counts of first-degree armed robbery, two counts of second-degree possession of a weapon for an unlawful purpose, and two counts of second-degree possession of a weapon without a permit. Defendant originally entered a plea of not guilty, but later retracted that plea and entered a guilty plea to two of the armed robbery charges. The remaining charges were later dismissed.
Crime 2: On January 27, 1987, Fitzpatrick was indicted on seventeen counts in Monmouth County Indictment 127-87 for crimes committed in 1986. He entered a plea of not guilty on all counts. A jury subsequently convicted Fitzpatrick of fourteen of the counts and found him guilty of a lesser, included offense on a fifteenth charge. A mistrial was declared with regard to the two remaining counts.
Crime 3: On February 10, 1988, Ocean County Indictment 97-2-88 charged Fitzpatrick with five counts: aggravated sexual assault; kidnapping; making terroristic threats; armed robbery; and possession of a weapon for an unlawful purpose. The crimes
were committed in August 1986. On March 20, 1990, a jury found Fitzpatrick guilty of aggravated sexual assault; first degree kidnapping; terroristic threats; and armed robbery.
Sentence 1: On January 11, 1987 in Ocean County, the Judge sentenced Fitzpatrick to concurrent terms of fifteen years with five years of parole ineligibility on his guilty plea to two armed robbery charges (Crime 1).
Sentence 2: On September 11, 1987 in Monmouth County, the Judge sentenced defendant on the fifteen convictions (Crime 2). Fitzpatrick appealed his conviction and sentence. By an opinion dated October 16, 1989, we affirmed Fitzpatrick's conviction, but vacated the sentence and remanded for re-sentencing. On November 14, 1989, the Judge re-sentenced Fitzpatrick to an aggregate term of forty-five years with fifteen years of parole ineligibility. The Judge ordered this sentence to be served consecutively to Fitzpatrick's Ocean County sentence.
Sentence 3: On August 24, 1990 in Ocean County, the Judge sentenced defendant to an aggregate sentence of thirty years with fifteen years of parole ineligibility. The Judge ordered this sentence to run consecutively to any other sentences defendant was serving. Fitzpatrick appealed his conviction under Ocean County Indictment 97-2-88 (Crime 3/Sentence 3). In his appeal, A-869-90T4, Fitzpatrick asserted that the Judge erred in not awarding gap-time credit. Fitzpatrick did not there claim how such gap-time credit should be deducted from his parole ineligibility date. On February 5, 1992, we decided that Fitzpatrick was entitled to two years and 347 days of gap-time credit, but that this credit should not be applied at the front end against Fitzpatrick's period of parole ineligibility. The Judge amended Fitzpatrick's judgment of conviction accordingly on February 28, 1992 and signed the change of sentence on March 17, 1992.
On March 31, 1992, Fitzpatrick's attorney made an inquiry to the New Jersey State Parole Board to determine whether gap-time credit would be applied in the calculation of Fitzpatrick's
parole ineligibility. The Board replied with a negative answer on April 13, 1992. Fitzpatrick appealed.
Petitioner Darrelle Nelson:
Crime 1: Nelson was arrested in Bergen County on October 6, 1989. He ultimately pleaded guilty to one charge of possession of cocaine with intent to distribute and one count of hindering apprehension.
Crime 2: On April 12, 1990, while out on bail, Nelson was arrested again in Bergen County, and ultimately pleaded ...