On appeal from the Superior Court of New Jersey, Law Division, Essex County, Ind. No. 96-10-3312.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Weissbard and Lihotz.
Defendant Carlo Smart appeals from the sentence imposed following his December 13, 1996, guilty plea to the charge of first-degree possession of a controlled dangerous drug (CDS) with intent to distribute. N.J.S.A. 2C:35-5b(1). The plea agreement recommended a ten-year period of incarceration and the dismissal of the second charge of the indictment. Sentencing was scheduled; however, defendant failed to appear.
Thereafter, defendant was arrested and held on federal charges beginning on July 27, 2001. After defendant's conviction on the federal offenses, he remained incarcerated in a federal correctional institution until the completion of his federal sentence on August 17, 2004.
While in federal prison, defendant filed a motion to dismiss the State indictment. The motion was denied as defendant's guilt had been adjudicated; however, defendant was advised of his right, pursuant to Rule 3:21-4, to provide a written request to be sentenced in abstentia. On September 7, 2004, defendant was sentenced in abstentia. As recommended in the plea agreement, the sentence was for a ten-year prison term, along with applicable fines, assessments, and a twenty-four month period of suspension of his driving privileges.
On appeal, defendant presents a single argument for our consideration:
UNDER THE UNIQUE FACTS OF THIS CASE, THE DEFENDANT WAS DEPRIVED OF GAP[-]TIME CREDITS TO WHICH HE WAS ENTITLED AND IS THEREFORE SERVING AN ILLEGAL SENTENCE. IN THE ALTERNATIVE, FUNDAMENTAL FAIRNESS DICTATES THAT DEFENDANT BE AWARDED RELIEF.
Defendant argues that had the state sentence been imposed earlier, as he had requested by correspondence, he would have served his sentences concurrently, rather than consecutively. His request on appeal is proposed as a remedy for the loss of claimed "gap-time" credits, which would reduce his period of parole supervision.
Generally, N.J.S.A. 2C:44-5b(2) relates to a defendant who has been sentenced previously to a term of imprisonment, and who is sentenced again for a different offense committed prior to the imposition of the earlier sentence. In such a circumstance, "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." Richardson v. Nickolopoulos, 110 N.J. 241, 242 (1988). We have observed that the statute, derived largely from section 7.06(2)(b) of the Model Penal Code, was intended to "counteract any dilatory tactics of the prosecutor" in pursuing a conviction for another offense after a defendant has been sentenced on the previous offense, when an inmate is available for disposition on a New Jersey offense. State v. Hall, 206 N.J. Super. 547, 550 (App. Div. 1985).
The New Jersey Supreme Court has resolved the question of whether a defendant is entitled to gap-time credits for an out- of-state sentence. In State v. Carreker, 172 N.J. 100, 111 (2002), the Court concluded that out-of-state sentences are not included in the gap-time calculation. Defendant contends Carreker is inapposite because his case was not subject to the Interstate Agreement on Detainers, N.J.S.A. 2A:159A-1, which would otherwise safeguard defendants against dilatory tactics in pursuing New Jersey prosecutions when a defendant is serving an out-of-state sentence. See Carreker, supra, 172 N.J. at 114. The present case, however, does not involve prosecutorial "foot dragging" in presenting a prosecution. Defendant fled after entry of his plea agreement, failing to appear for his timely scheduled sentencing. "In the case of a defendant (like defendant here) who has fled the jurisdiction and is serving time in a foreign facility, the ...