Ex parte Fitzpatrick

• Citation: 9 N.J.Super. 511,75 A.2d 636
• Parties: Ex parte FITZPATRICK.
• Decision Date: 14 September 1950
• Court: New Jersey County Court

Page 511

9 N.J.Super. 511

75 A.2d 636

Ex parte FITZPATRICK.

Mercer County Court Law Division New Jersey.

Sept. 14, 1950.

Martin P. Devlin, Jr., Trenton, for petitioner.

Theodore D. Parsons, Attorney General of New Jersey, Eugene T. Urbaniak, Deputy Attorney General, for the State.

HUGHES, J.C.C.

On the representation that he is illegally confined in the New Jersey State Prison, petitioner, Fitzpatrick, was granted a writ of habeas corpus under the authority of R.S. 2:82--1 et seq., N.J.S.A. In the petition for the writ, it was contended that petitioner had been classified as a 'third offender,' although he had never been indicted and tried as such under the statutes relating to such multiple offenders; that as a result of such classification by the administrative officers at the Prison, he was unlawfully deprived on his sentences of the commutation time for good behavior and performance of assigned labor, established by statute (R.S. 2:103--9, N.J.S.A.; R.S. 30:4--140, N.J.S.A.); and that upon the restoration of such commutation time, he would be entitled in law to immediate release.

By virtue of the provisions of P.L. 1950, C. 315, R.S. 2:103--9 et seq., N.J.S.A., the basic contention of the petitioner is now academic and by stipulations entered into at the hearing on the writ between the representative of the State and the petitioner, it is clear that there will be (or has already been) restored to the prisoner all such commutation time of which he heretofore was deprived and that, accordingly, such ground for relief is withdrawn.

The return to the writ predicates the detention of the prisoner from January 23, 1945 to the present, upon two consecutive sentences imposed upon him, the first, in Essex County on January 19, 1945, for a term of not less than 4, nor more than 7 years; the second, in Hudson County on October 19, 1945, for a term of not less than 3, nor more than 5 years, the sentence on the latter term stipulating that it should commence on the expiration of the former.

The prisoner gave evidence on the return of the writ as to his status and his contentions, the latter being clarified by sipulations entered of record under the supervision of the court. As a result thereof, it appears that although his complaint as to the deprivation of such commutation time is now withdrawn by reason of the corrective and retroactive effect of P.L. 1950, c. 315, supra, his claim to immediate release rests on another distinct and fundamental ground. This contention is that upon the expiration of the minimum of his first sentence (as reduced by the work time and commutation time for good behavior, to which he was entitled by virtue of R.S. 30:4--140, N.J.S.A.), he entered upon service of his second term; that he has served the minimum of his second term, as reduced by similar time credits, and that he is, therefore, entitled to immediate release. I think that in order to effect complete justice, and pursuant to the liberal amendment policy of the Rules of court, the petition should be deemed to be amended to include such additional ground.

The State answers in argument that petitioner was never paroled on either of his terms of imprisonment and that, accordingly, he must be considered to be serving the full maximum on his first term, I.e., 7 years, less the commutation and work credits to which he is entitled, conceded to be approximately 330 days for good behavior and 150 days for work assignments performed.

To this the petitioner rejoins by evidence that the administrative officials at the Prison 'lumped' his consecutive sentences that is to say, that they were recorded as a unit and that the administrative record of such was made to reflect a combined minima and maxima so that in total aggregate it determined such sentences to have a minimum of 7 years and a maximum of 12 years. He further contends that this action misled him into the belief that he was ineligible for parole until the expiration of his 'minimum,' I.e., the combined minima of such sentences; that, being thus lulled, he failed to apply for parole at the expiration of the minimum of his first sentence and that, accordingly, the court must now deem that sentence concluded on the expiration of the minimum thereof. The same general reasoning is applied (in necessary effect to his claim for immediate release) to the second sentence.

There was an admission of some ambiguity in the evidence that petitioner had in fact applied for parole to the old Court of Pardons and that such had been denied, although the date thereof was not shown. As I view the law, however, it seems to me unnecessary to determine this fact by taking additional evidence thereon.

The effect of the evidence and stipulations mentioned moulds a basic issue for resolution. If, as petitioner contends, his sentences concluded on the expiration of the respective minimum terms thereof, he is entitled to immediate release. If they were not so terminated, of course, his detention is not illegal, and this court would have no authority to order his release.

Preliminarily, as concerns the contention of the petitioner that the action of the Prison officials in combining the minima and maxima of his sentences for administrative purposes (relevant Inter alia to the determination of his eligibility date to apply for parole), it seems to me that he is quite right and that the combining of such sentences for such, or any other purposes, is illegal, unless specifically authorized by statute. It may be noted parenthetically that by P.L.1950, c. 292, R.S. 30:4--123.10, N.J.S.A., the combining, for purpose of determining parole eligibility, of consecutive sentences imposed at the same time by any court, is now authorized by law, this not applying, however, to the sentences of the petitioner which were imposed at different times and in separate courts, and prior to the effective date of such act.

The illegality of the unauthorized combining of sentences is made obvious by considering the effect thereof. Except by action of the old Court of Pardons, which was responsive to its own rules and regulations, a prisoner sentenced to State Prison generally became eligible for parole at the expiration of his minimum sentence. R.S. 30:4--106.1, et seq., N.J.S.A. The minimum sentence merely defines the period after which a convict is eligible for parole. If, by failure of application, or for any other reason, he does not secure a parole or pardon, he is not automatically released from prison until the expiration of the maximum term of his sentence, less the uniform commutation time credits to which the law entitles him. By combining the sentences as a matter of prison bookkeeping, the officials caused it to appear of record that at the expiration of his combined minimum terms on both sentences, he became eligible for parole consideration. This was, of course, improper, for it should rather have appeared that he should have been eligible for parole consideration at the expiration of the minimum of his first sentence. If paroled thereon, he would have commenced service of his second sentence, and for the balance of the first sentence maximum would have had the dual status of a parolee on his first sentence and a prisoner serving time on his second. The prison authorities certainly had no authority to grant automatic parole at the expiration of a minimum term. It has never been thought that any authority other than the custodians of the power of parole and pardon could take such action. Even the sentencing court, except to correct an illegal sentence, loses power over the sentence at the expiration of a fixed period for...