Breeden v. New Jersey Dept. of Corrections

• Decision Date: 21 June 1993
• Citation: 132 N.J. 457,625 A.2d 1125
• Parties: Lee BREEDEN, Appellant-Respondent, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent-Appellant.
• Court: New Jersey Supreme Court

Page 457

132 N.J. 457

625 A.2d 1125

Lee BREEDEN, Appellant-Respondent, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent-Appellant.

Supreme Court of New Jersey.

Argued March 2, 1993.

Decided June 21, 1993.

Madeleine W. Mansier, Deputy Atty. Gen., for appellant-respondent (Robert J. Del Tufo, Atty. Gen. of New Jersey, atty.; Joseph L. Yannotti, Asst. Atty. Gen., of counsel).

J. Michael Blake, Asst. Deputy Public Defender, for respondent-appellant (Zulima V. Farber, Public Defender, atty.).

The opinion of the Court was delivered by

O'HERN, J.

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.

I

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, 609 A.2d 483 (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 sentence(s)." 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 (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, but a Corrections official replied to Breeden:

Please be advised that without a court order from a New Jersey court directing this department to give you credit for time on your California sentence, you will only be entitled to that portion of your time spent out of state when you were held on our interest only.

The offer of custody from California stems from a California court decision, In re Stoliker and is binding on California only. New Jersey is under no legal obligation to accept an inmate under those circumstances. Nor is New Jersey under legal obligation to give you concurrency of sentence on a California commitment ordered by a California judge.

The policy of this department regarding the tolling of time due to an escape is in fact administrative policy and therefore administrative law, legally binding and effectuated unless or until New Jersey courts dictate otherwise. Should you wish to pursue this matter, the courts are the appropriate arena.

The letter noted that Breeden would be credited with the time in 1985 when he was held in California after serving time for the disorderly persons offense for return to New Jersey because at that time he was "held on New Jersey['s] interest only." The importance of the credit for the time served in California on the robbery charge is that it accelerates a prisoner's eligibility for parole under New Jersey law. Prisoners are eligible for parole after serving one-third of a sentence. N.J.S.A. 30:4-123.51.a.

Breeden appealed. After intermediate proceedings, the Appellate Division reversed the DOC's ruling and held that "principles of comity" impelled the Department "to honor the direction of a judge of another state that a sentence imposed in the foreign jurisdiction be served concurrent to a prison term previously set in New Jersey." 258 N.J.Super. at 254, 609 A.2d 483. The court further held:

The DOC can either accept the transfer of the prisoner to this state for service of his New Jersey sentence or grant time credit for the period served in the foreign jurisdiction. Either way, New Jersey has no interest in blithely ignoring the lawful orders of the judiciary of another jurisdiction. [Ibid.]

We granted the State's petition for certification, 130 N.J. 598, 617 A.2d 1220 (1992).

II

We recently reviewed, in State v. Robbins, 124 N.J. 282, 590 A.2d 1133 (1991), and In re Basto, 108 N.J. 480, 531 A.2d 355 (1987), the general principles that apply to the relations between states with respect to the custody of prisoners. Robbins addressed the role of comity in the decision by a governor of an asylum state to deliver custody of a prisoner to serve a sentence in another jurisdiction before his sentence in New Jersey had expired. We reviewed the purposes of the extradition clause of the United States Constitution, noting that it " 'served important national objectives of a newly developing country striving to foster national unity.' " Robbins supra, 124 N.J. at 286, 590 A.2d 1133 (quoting Michigan v. Doran, 439 U.S. 282, 288, 99 S.Ct. 530, 535, 58 L.Ed.2d 521, 527 (1978)). As implemented by the Federal Rendition Act, 18 U.S.C. §§ 3181-3195, governors of asylum states have "a mandatory duty to deliver up fugitives on proper demand." Id. 124 N.J. at 287, 590 A.2d 1133 (citing Kentucky v. Dennison, 65 U.S. (24 How.) 66, 16 L.Ed. 717 (1861), overruled by Puerto Rico v. Branstad, 483 U.S. 219, 107 S.Ct. 2802, 97 L.Ed.2d 187 (1987)). However, "rendition remains discretionary if the fugitive demanded is incarcerated in the asylum state for a violation of that state's laws." Ibid. (citing Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 371, 21 L.Ed. 287, 290 (1873)). "In that situation, the governor's duty to extradite does not mature until punishment in the asylum state has been completed." Id. 124 N.J. at 288, 590 A.2d 1133 (citing Nelson v. George, 399 U.S. 224, 229 n. 6, 90 S.Ct. 1963, 1966-67 n. 6, 26 L.Ed.2d 578, 583 n. 6 (1970)). The governor of the asylum state may, as a matter of comity, choose to extradite incarcerated prisoners, and a prisoner " 'may not complain if one sovereignty waives its strict right to exclusive custody of him for vindication of its laws in order that the other may also subject him to conviction of [the] crime against it.' " Ibid. (quoting Ponzi v. Fessenden, 258 U.S. 254, 260, 42 S.Ct. 309, 310, 66 L.Ed. 607, 611 (1922)). We held in Robbins:

"Inasmuch as it is impossible for a person to be in two places at the same time, where one owes penalties to two separate sovereigns, one sovereign must relinquish its claim and allow the other to exact its penalty first. * * * The order of punishment is a matter to be decided between the sovereigns--it is a matter of comity between them, and the decision arrived at is one over which the convict has no control." [Robbins, supra, 124 N.J. at 289, 590 A.2d 1133 (quoting State v. Williams, 92 N.J.Super. 560, 563, 224 A.2d 331 (App.Div.1966)).]

A prisoner in this situation " 'owe[s] a debt to two different sovereigns. Under our law these debts must be paid, and it is not up to the accused to determine in what order they should be paid.' " Ibid. (quoting ...