On certification to the Superior Court, Appellate Division, whose opinion is reported 258 N.J. Super. 252 (1992).
O'hern, Wilentz, Clifford, Handler, Pollock, Garibaldi, Stein
The opinion of the court was delivered by
This case concerns the question whether another state's prison sentence, expressly intended to be concurrent with a prior uncompleted New Jersey sentence, is to be credited as time served against the uncompleted New Jersey sentence even though served in the foreign state. The New Jersey sentence had been interrupted when the offender escaped to a foreign state and committed a crime there that resulted in the offender's conviction and sentence in the foreign state. We hold that the determination whether New Jersey sentences are consecutive or concurrent is primarily a judicial function. Sentencing principles as well as principles of comity and fairness should guide the New Jersey sentencing court in determining whether the penal and rehabilitative purpose of its original sentence have been fulfilled by the imprisonment elsewhere. We reverse the judgment below, which would have required the Commissioner of Corrections (Commissioner) to credit administratively the time served elsewhere against the unexpired New Jersey term.
The case arises from the efforts of Lee Breeden to escape confinement for his crimes. For convenience, we will omit many of the details of the case that are more fully set forth in the reported opinion of the Appellate Division, 258 N.J. Super. 252 (1992).
We start with Breeden's 1984 sentence in New Jersey for assault. Breeden was serving that sentence by working at the New Jersey State Hospital at Marlboro when he escaped from New Jersey's custody. He was eventually arrested in California on a disorderly persons offense, and after serving a short period of custody he was released to be returned to New Jersey on its detainer. Breeden managed to escape while being extradited to New Jersey. Within months, California arrested him again on an armed-robbery charge and sentenced him to three-years imprisonment. The California court made that sentence "concurrent with any prior uncompleted sentences." While serving that term in California, Breeden requested to be returned to New Jersey to stand trial on his New Jersey escape charge. On June 10, 1986, he pled guilty in New Jersey to escape, and on July 17, 1986, he was sentenced to a four-year sentence. Defendant does not dispute that that sentence is consecutive to his original New Jersey sentence for assault.
After his August 12, 1986, return to California to complete the service of his three-year California sentence for armed robbery, Breeden asked the California Department of Corrections to transfer him to New Jersey to serve out the unexpired term of the New Jersey prison term concurrently with his California prison term. On October 29, 1986, the California Department of Corrections offered to make Breeden available to the New Jersey Department of Corrections (New Jersey DOC, DOC, or the Department) for the transfer. The letter informed the Department that pursuant to In re Stoliker, 49 Cal. 2d 75, 315 P.2d 12 (Cal. 1957), if custody were accepted by New Jersey, Breeden would receive credit on his California term for time he served in New Jersey. If he were released on his New Jersey term prior to the expiration of his California term, he would be returned to California. The letter also suggested that the New Jersey DOC could decline custody but credit him on the New Jersey sentence for time served in California on the California term.
The New Jersey DOC wrote back on November 12, 1986, that
this department must decline assumption of custody until Subject has completed his term of imprisonment in California.
It is the policy of this department that Subject cannot continue service of the unserved portion of his New Jersey sentence until such time as he has completed service of any duly imposed sentence.
Breeden filed a state habeas corpus petition in Superior Court of California, presumably seeking release from custody in that state. That court denied the request and noted that "California has no authority to order New Jersey to accept time credits earned on the California sentence to shorten petitioner's incarceration in New Jersey."
California paroled Breeden on June 28, 1987, at which time he was returned to New Jersey. Breeden requested that the New Jersey DOC give him credit for the time served in California, ...