On certification to the Superior Court, Appellate Division, whose opinion is reported at 265 N.J. Super. 191 (1993).
O'hern, Clifford, Handler, Pollock, Garibaldi, Stein
The opinion of the Court was delivered by O'HERN, J.
This appeal concerns the "gap-time credit" provision, found at N.J.S.A. 2C:44-5(b)(2) (hereinafter 5(b)(2)). That section governs sentencing at different times for multiple offenses. The provision requires that a defendant who has been sentenced to imprisonment and 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) be "credited" at the time of the second sentence for so much of the term of imprisonment as the defendant has served on the prior sentence.
In Richardson v. Nickolopoulos, 110 N.J. 241, 540 A.2d 1246 (1988) (Richardson II), we explained that the use of the expression "gap-time credit" was not to be confused with the usual credit for presentence time referred to as "jail credit." We explained that 5(b)(2) was a partial adaptation of a provision in the
Model Penal Code that establishes a "'limit on the cumulation of consecutive sentences.'" Id. at 243 (quoting Model Penal Code § 7.06 commentary at 272 (1962)). To limit such cumulation, when sentences for multiple offenses are imposed on different occasions, section 7.06 restricts the sentencing authority of courts by requiring them to apply to the later sentence a credit for time served between the two sentencing hearings if the later sentence is for a crime committed prior to the earlier sentence. We explained in Richardson II that "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." Id. at 244. The general purpose behind the provision is to avoid the manipulation of trial dates to the disadvantage of defendants and to put defendants in the same Position that they would have been "had the two offenses been tried at the same time." Model Penal Code, supra, § 7.06 commentary at 278.
Our Code does not limit the aggregate of consecutive terms imposed on separate occasions. We thus had to determine in Richardson II what meaning to ascribe to the 5(b)(2) provision when the imposition of the later sentence includes a judicially-imposed parole bar intended to be consecutive to the earlier sentence. Richardson had been sentenced to a five-year term of imprisonment with a two-and-one-half-year parole bar, to be served consecutive to an earlier three-year sentence. Richardson sought to have the two-and-one-half-year parole bar reduced by 336 days of gap time that he had already served on the three-year sentence at the time he received the five-year sentence. We declined to apply gap-time credit to the front end of the second sentence. Otherwise, the credit would reduce the parole bar that the sentencing court had imposed as punishment for the offense. Such an application of the credit would allow the prisoner a free crime because he or she would not serve time for the offense for which the court imposed the second sentence. Rather, we credit gap time to the back end of the sentence. In that way, we
effectuate the plain language of the statute, which requires time served on the later offense to be credited to the permissible aggregate length of the term or terms remaining to be served. At the same time, we left open in Richardson II the question of how defendants might benefit from our decision to credit gap time to the back end of the sentence.
We granted certification to review two issues posed in these appeals. 134 N.J. 486, 487 (1993). First, do gap-time credits, as a limit on the total possible sentence, correspondingly reduce the authority of a court to impose a judicial parole bar? Second, do gap-time credits proportionately advance a defendant's primary parole-eligibility date when neither a judicial nor a statutory parole bar has been imposed? We answer the questions "no" and "yes," respectively, as did the Appellate Division. Thus, we affirm the judgment of the Appellate Division. However, except for the prisoners currently before us and others already appealing the same issues, we will apply the principles of this decision prospectively in order to minimize administrative difficulties.
The cases of Booker and Fitzpatrick present essentially the first question, whether gap-time credits reduce the authority of a court to impose a parole bar; thus, whether we use Booker's or Fitzpatrick's case, our analysis and Conclusions remain the same. For ease of analysis, we refer only to the facts in Booker. The facts of Fitzpatrick's case are set out fully in the opinion below. 265 N.J. Super. 191, 194-95 (1993). We summarize the facts in Booker as follows. (We eliminate all references to concurrent terms that were imposed at the same sentencing hearing for the sake of simplicity.)
Sentence One for Crime Two (imposed 2/9/90): twenty years with ten-year judicial parole bar.
Sentence Two for Crime One (imposed 5/25/90): fifty years with twenty-five-year judicial parole bar, concurrent to Sentence One.
Specifically, Booker asks whether the gap-time credit of 106 days reduces his twenty-five-year parole bar.
First, Booker argues that Richardson II should not apply to him because his situation can be distinguished from that of Richardson on the basis that his sentences are concurrent, whereas Richardson's were consecutive. He contends that he should be Put back where he would have been "had the two offenses been tried at the same time." Model Penal Code, supra, § 7.06 commentary at 278. His twenty-five year parole bar, Booker says, should commence to run at the earlier date. That would, in effect, make the sentence retroactive and equate gap time with jail time, a result that we do not believe the Legislature intended. See N.J.S.A. 2C:44-5(e)(1) (providing that "when terms of imprisonment run concurrently, the shorter terms merge in and are satisfied by discharge of the longest term").
Second, Booker argues that at the very least the 106 days has "perforce" the effect of reducing the second sentence's parole bar by fifty-three days. He reasons that gap-time credits are a limit on the maximum term of imprisonment that a court can impose at sentencing. Thus, he contends that his second sentence itself has been reduced by 106 days. He argues that because he received the maximum possible judicial parole bar, i.e., one-half of his base term of fifty years, he therefore is entitled to have fifty percent of the 106 days (i.e., fifty-three days) subtracted from the second sentence's parole bar of twenty-five years.*fn1 That argument, while internally logical, is not supported by the language of the Code.
N.J.S.A. 2C:43-6, which authorizes the imposition of judicial parole bars, does not speak in terms of calculating the parole bar on the basis of the aggregate term that courts may impose.
Rather, the statute provides that when the aggravating factors substantially outweigh the mitigating factors, the court may "fix a minimum term [of parole ineligibility] not to exceed one-half of the term set pursuant to subsection a. * * * ." N.J.S.A. 2C:43-6(b). Subsection (a) establishes the base terms for imprisonment. For example, the base term for a crime of the first degree is between ten years and twenty years; the term for a second-degree crime is between five years and ten years. We are satisfied that the Legislature did not contemplate that the intended effect of 5(b)(2) would be to reduce the authority of courts to impose a ten-year parole bar on a first-degree offense such as aggravated sexual assault.
By way of analogy, we may consider jail credit. If a prisoner had served 365 days before the imposition of a twenty-year sentence for armed robbery, the one-year jail credit would not limit the potential judicial parole bar to nine-and-one-half years (i.e., fifty percent of nineteen years). The maximum possible parole bar would still be ten years (i.e., fifty percent of twenty years). (Of course, the prisoner would serve only nine years subsequent to sentencing before becoming eligible for parole.) In addition, to assume that the Legislature would expect courts to impose a reduced base term of, for example, nineteen years and 259 days, from which any parole bar would have to be calculated, is unrealistic. Judges do not impose sentences in such terms. The Legislature would not have intended such an administrative irregularity. Hence, we agree with the Appellate Division that "a period of parole disqualifier is an absolute term, against which there are to be no credits (other than jail credits)." 265 N.J. Super. at 207. Accordingly, we reject Booker's contention that his gap-time credit should reduce his parole bar.
The question of whether gap-time credits advance primary parole-eligibility dates is much closer. Respondent Darelle Nelson raised the issue. Nelson ...