Booker v. New Jersey State Parole Board

STEIN, J.,

concurring in part and dissenting in part.

The Court today struggles to construe a statute the purpose and meaning of which continue to confound judicial efforts to apply it. Although my interpretation differs from that of the Court, I join the majority’s observation that legislative clarification of the gap-time statute is essential to eliminate the uncertainty that clouds its application. Ante at 268, 642 A.2d at 989.

*269I

The Legislature extracted the gap-time provision from the Model Penal Code (MPC) section on consecutive and concurrent sentencing. See MPC § 7.06(2)(b) (1980). The MPC limited the aggregate of consecutive sentences that could be imposed for multiple offenses to the longest extended term that could be imposed for one offense. See id. § 7.06(l)(c). The purpose of the gap-time provision in the MPC was to enforce that sentencing limit in situations in which a defendant is sentenced at different times for crimes committed prior to imposition of the first sentence. See id. § 7.06 commentary at 277-79.

As explained in Richardson v. Nickolopoulos, 110 N.J. 241, 243-44, 540 A.2d 1246 (1988), in enacting the Code of Criminal Justice (Code) the Legislature adopted the MPC gap-time provision but deleted the MPC sentencing limit. Thus, the Legislature appears to have enacted an enforcement provision without also adopting the provision that was intended to be enforced. “What meaning, then, should we ascribe to this provision in our Code?” Richardson, supra, 110 N.J. at 244, 540 A.2d 1246.

In answering that question, the Court should not rely on the legislative history for guidance. A primary interpretive source is the commentary of the Criminal Law Revision Commission (Commission) to its 1971 draft of the Code. See 2 New Jersey Penal Code: Final Report of the Criminal Law Revision Commission (1971). However, that commentary is not illuminating because the Commission’s 1971 draft included the MPC sentencing limit that the Legislature later deleted from the Code. See 1 id § 2C:44-5a(3). The Commission’s commentary addresses the gap-time credit in the context of that sentencing limit. See 2 id at 336.

Furthermore, when the Senate deleted the sentencing limit from the bill that ultimately became the Code, it did so without explanation. Hence, we cannot easily understand the purpose underlying the Senate’s retention of the provision that enforced the sentencing limit.

*270II

The Court identifies two issues that the three appeals before us present: (1) whether gap-time credits, by reducing an overall sentence, “correspondingly reduce a court’s authority to impose a judicial parole bar,” and (2) whether “gap-time credits proportionately advance a defendant’s primaiy parole-eligibility date” when no mandatory minimum has been imposed. Ante at 261, 642 A.2d at 986. The majority answers the first question “no” and the second “yes,” ante at 261, 642 A.2d at 986. It concludes that gap time should be credited to reduce an aggregate sentence only after a parole bar has been calculated, and that gap time should be credited to reduce an aggregate sentence prior to the calculation of a defendant’s parole-eligibility date.

The issues could be restated more generally, however, requiring us simply to decide (1) how gap-time credits apply to concurrent sentences imposed at different times, and (2) how they apply to consecutive sentences imposed at different times. The answer to those broader questions is informed by attempting to identify the purpose that the gap-time credit should serve in our Code. As the Appellate Division observed in State v. Edwards, 263 N.J.Super. 256, 622 A.2d 919 (1993), “The majority view is that the statute was designed to counteract the dilatory tactics of a prosecutor in pursuing a conviction for an earlier offense after a defendant had been sentenced on another crime.” Id at 260, 622 A.2d 919. This Court similarly acknowledges that “[t]he 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.’ ” Ante at 260, 642 A.2d at 985 (quoting MPC, supra, § 7.06 commentary at 278); see ante at 265-66, 642 A.2d at 988 (same). To attain that end, gap-time credits should be applied in a manner that adjusts the affected sentences to what they would have been had they been imposed at the same time.

With respect to concurrent sentences imposed at different times, that goal is achieved by crediting gap time to the front end *271of the subsequent concurrent sentence, thereby reducing the parole-ineligibility portion of the subsequent sentence, whether that segment is the result of a judicially-imposed parole bar or the parole ineligibility calculated by the Parole Board. The majority rejects that approach, determining that application of gap-time credit to the front end of a subsequent concurrent sentence “would, in effect * * * equate gap time with jail time.” Ante at 262, 642 A.2d at 986.

A contrasting view is that gap time accounts for the time served between the imposition of the first sentence and the imposition of subsequent sentences; jail credit applied pursuant to Rule 3:21-8 accounts for the time served between arrest and imposition of the first sentence. Arguably, the two concepts are distinct and remain so even if gap time is used to synchronize the running of concurrent sentences. See Edwards, supra, 263 N.J.Super. at 263, 622 A.2d 919 (discussing distinction between jail credit and gap-time credit).

Furthermore, application of gap-time credit to the back end of a subsequent concurrent sentence does not appear to accomplish the goal of insuring that a defendant does not receive different treatment for multiple offenses solely on account of being sentenced at separate times. For example, respondent Nelson received a four-year sentence with no parole bar on May 11, 1990, and a five-year concurrent sentence with no parole bar 218 days later on December 14,1990. Had both sentences been imposed on May 11, 1990, the date of Nelson’s first sentencing, Nelson would have been eligible for parole on January 8,1992, after serving 608 days (one-third) of his five-year sentence, disregarding good-behavior and work credits. See N.J.S.A 30:4-123.51a.

Under the majority’s approach, the Parole Board would credit Nelson’s 218 days of gap time against the back end of Yds five-year sentence, resulting in a sentence of 1608 days (1826 days (five-year sentence) - 218 days = 1608 days). Leaving aside good-behavior and work credits, the Board would then determine Nelson’s primary parole-eligibility date on that sentence by calculating one-*272third of the reduced sentence of 1608 days, or 536 days. Nelson would be eligible for parole on June 2,1992, after serving 536 days from the date the second sentence was imposed. N.J.A.C. 10A:71-3.2(e) (stating that parole-eligibility term on subsequent concurrent sentence is calculated from date subsequent sentence began).

In comparison, by crediting Nelson’s gap time to the front end of his subsequent concurrent sentence, Nelson’s 218 days of gap time would be credited directly against the 608 days (one-third of five years) he would have been required to serve on the five-year second sentence. Thus, Nelson would be required to serve only 390 days from the date the second sentence was imposed, making Nelson’s primary parole-eligibility date January 8, 1992—the same as it would have been had he been sentenced for both convictions on May 11, 1990.

With respect to subsequently-imposed consecutive sentences, the Appellate Division concluded that gap-time credits should not reduce the length of an aggregate consecutive sentence. 265 N.J.Super. 191, 200-01, 625 A.2d 1153 (1993). See also State v. Lawlor, 222 N.J.Super. 241, 245, 536 A.2d 766 (App.Div.1988) (“If the judge imposes the current term consecutively to the previous term, the time served under the previous term will not be credited against the current term.”); Cannel, New Jersey Criminal Code Annotated, comment 4 on N.J.S.A 2C:44-5 (1992-93) (“If the later sentence is consecutive, the .credit has little effect since credit against the aggregate sentence and credit against the first sentence amount to the same thing.”).

Admittedly, the gap-time provision appears to require the application of gap-time credits to consecutive sentences, stating that the time shall be credited “(wjhether the court determines that the terms shall run concurrently or consecutively * * N.J.S.A 2C:44-5b(2). Although we do not ordinarily interpret a statute in a manner that renders language superfluous, we will not follow a plain-meaning analysis when the result is contrary to any reason*273able view of the legislative intent. See Roig v. Kelsey, 135 N.J. 500, 514-516, 641 A.2d 248 (1994).

The majority’s application of gap time to the back end of a subsequently-imposed consecutive sentence produces a result that the Legislature would not have intended: a defendant sentenced at the same time to consecutive terms for two crimes will serve more time than a defendant sentenced at separate times to consecutive terms for the same crimes. To illustrate, assume a defendant is sentenced on January 1, 1995, for two crimes, and receives consecutive sentences of six years on each crime. The defendant’s aggregate sentence would be twelve years. Not counting good-behavior and work credits, the defendant would be eligible for parole on January 1, 1999, after serving four years: one-third of each sentence (two years) served back-to-back. See N.J.AC. 10A:71-3.2(d). Furthermore, the defendant’s entire aggregate term would end on December 31, 2007.

An alternative assumption is that the same defendant receives the same sentences for the same crimes but is sentenced separately, with the second sentencing occurring one year after the first. If the one year of gap time is applied to the back end of the defendant’s subsequently-imposed consecutive six-year term prior to the calculation of the primary parole-eligibility date, as the majority contemplates, the defendant’s period of parole ineligibility on the second sentence would be one-third of five years, or approximately twenty months. Adding that period to the two-year period required to be served on the first sentence, the defendant’s primary parole-eligibility date would be September 1, 1998. Furthermore, the defendant’s entire aggregate term would end on December 31, 2006, one year sooner than if the two sentences had been imposed simultaneously. Thus, that defendant would serve less time if he were sentenced at separate times for each crime than if he were sentenced for both crimes at the same time.

The majority supports application of gap-time credits to consecutive sentences on the basis that it “comports with our basic *274understanding that the credits are a ‘ “limit on the cumulation of consecutive sentences.” ’ ” Ante at 268 (quoting Richardson, supra, 110 N.J. at 243, 540 A.2d 1246 (quoting MPC, supra, § 7.06 commentary at 272)). However, the Legislature’s recent amendment of N.J.S.A. 2C:44-5a(2), see L.1993, c. 223, contradicts that assumption. That amendment states: “There shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses.”

Ill

The most reasonable interpretation that I can ascribe to the gap-time provision in our Code is one that insures that a defendant’s exposure for multiple offenses committed prior to the imposition of a sentence on those offenses will not be affected by the number and timing of the sentencing proceedings. That purpose is furthered by applying the gap-time credit to the front end of a subsequently-imposed concurrent sentence, and not crediting gap time to a subsequently-imposed consecutive sentence. Thus, appellant Booker’s 106 days of gap time would be credited to the front end of his concurrent sentence, thereby reducing accordingly the twenty-five-year parole disqualifier imposed on that sentence; and respondent Nelson’s 218 days of gap time would be credited to the front end of his concurrent five-year sentence, thereby reducing the length of time Nelson would be required to serve on that sentence; but appellant Fitzpatrick’s two years and 347 days of gap time would not be credited to reduce the length of his subsequent consecutive sentences.

To the extent that the majority concludes that gap time should not be credited to reduce the length of a judicially-imposed parole bar on a consecutive sentence, I concur in the judgment. However, I dissent from the judgment to the extent that it reflects the majority’s holding that gap time should be credited to reduce the length of consecutive sentences and that it should be applied to the back end of concurrent sentences.

*275For affirmance—Justices CLIFFORD, HANDLER, POLLOCK, O’HERN and GARIBALDI—5.

Concurring in part; dissenting in part—Justice Stein—1.