State v. Franklin

• Decision Date: 26 February 2003
• Citation: 815 A.2d 964,175 N.J. 456
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Ronald L. FRANKLIN, Defendant-Appellant.
• Court: New Jersey Supreme Court

815 A.2d 964

175 N.J. 456

STATE of New Jersey, Plaintiff-Respondent, v. Ronald L. FRANKLIN, Defendant-Appellant.

Supreme Court of New Jersey.

Argued October 8, 2002.

Decided February 26, 2003.

J. Michael Blake, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney).

Mark P. Stalford, Assistant Prosecutor, argued the cause for respondent (John A. Kaye, Monmouth County Prosecutor, attorney).

Bennett A. Barlyn, Deputy Attorney General, argued the cause for amicus curiae, Attorney General of New Jersey (Peter C. Harvey, Acting Attorney General, attorney).

The opinion of the Court was delivered by ALBIN, J.

This case requires us to resolve whether juveniles are entitled to the same rights as adults with respect to "gap-time" credit and, if so, whether gap-time applies to a period of imprisonment served after a parole revocation. The gap-time statute, N.J.S.A. 2C:44-5b(2), is found in the Code of Criminal Justice, but there is no equivalent provision in the Code of Juvenile Justice (Juvenile Code). A defendant who is sentenced to terms of imprisonment for two separate offenses imposed on different sentencing dates is entitled to gap-time credit for the period he serves from the date of the first sentence to the date of the second sentence where both offenses occurred before the first sentence. A defendant loses the potential benefit of a concurrent sentence every day the second sentence is deferred. The purpose of N.J.S.A. 2C:44-5b(2) is to ensure that a defendant's sentence is not lengthened because of delays in the prosecution of the offense underlying the second sentence.

We now hold that juveniles are entitled to the same equitable remedy as adults with respect to gap-time credit. We also conclude that gap-time credit applies to the period of imprisonment served on the first sentence after a parole revocation.

I.

Ronald L. Franklin committed three crimes within five days of each other. On July 16, 1992, Franklin was arrested in Asbury Park for possession of heroin, an act of delinquency which, if committed by an adult, would constitute third-degree possession of a controlled dangerous substance in violation of N.J.S.A. 2C:35-10a(1) (heroin offense). On July 22, 1992, he was arrested for two separate robberies he had committed one day earlier in Asbury Park, acts of delinquency which, if committed by an adult, would constitute second-degree robbery in violation of N.J.S.A. 2C:15-1 (robbery offenses). Franklin was seventeen years old at the time of all three offenses.

On August 14, 1992, Franklin entered a plea of guilty to the heroin offense at a delinquency proceeding in the Chancery Division, Family Part, and was sentenced to an indeterminate term of incarceration not to exceed two years. That term of incarceration was to be served at the New Jersey State Training School for Boys and Girls at Jamesburg.

On September 24, 1992, on motion by the prosecutor, the Family Part waived jurisdiction to the Law Division on the robbery offenses, permitting the prosecution of Franklin as though he were an adult. Eight months later, on May 20, 1993, Franklin was indicted by a grand jury for the robbery offenses.

On June 14, 1993, Franklin was placed on parole for the juvenile heroin offense. Unfortunately, he did not use his freedom wisely. On July 30, 1993, he was arrested for various offenses, including possession of a controlled dangerous substance, cocaine, with intent to distribute within 1000 feet of school property (distribution offense or distribution charge). His release on bail for the distribution offense was short-lived. On August 9, 1993, Franklin was again arrested and this time incarcerated for violating the conditions of his parole on the juvenile heroin offense, specifically, for failing to maintain employment and to refrain from possessing or using a controlled dangerous substance. At a hearing in November 1993, Franklin did not contest the parole violation. His parole was revoked, and a new parole eligibility date on the heroin offense was set for June 1, 1994.

On April 28, 1994, pursuant to a plea agreement with the State, Franklin pled guilty to the robbery charges and to the 1993 distribution charge. In exchange for the plea, the State recommended that Franklin receive seven-year concurrent prison terms on the robbery charges, to run concurrent to the time he was then serving on the heroin offense after revocation of his parole, and a five-year prison term with a two-year period of parole disqualification on the distribution charge, to run consecutive to the robbery sentences and concurrent to the heroin offense. On May 26, 1994, Franklin was released from prison on the juvenile heroin offense. On June 10, 1994, he was sentenced on the robbery and distribution charges in accordance with his agreement with the State. That part of Franklin's sentence made to run concurrent to the heroin offense was rendered a nullity because he had already served the full time on the heroin offense. Franklin filed a motion for post conviction relief seeking gap-time credit toward the robbery sentences for the time he served on the heroin offense before and after his parole revocation. The motion judge concluded that gap-time applied to a juvenile sentence, but only awarded Franklin 304 days of gap-time credit toward the robbery offenses, the period from the date of his sentence on the juvenile heroin offense until the date of his parole for that offense.

Franklin's appeal was heard on the Appellate Division's excessive sentencing oral argument calendar. The two-judge panel affirmed the motion judge, denying Franklin gap-time credit for the period after his parole revocation.

We granted Franklin's petition for certification, 171 N.J. 442, 794 A.2d 181 (2002), to determine whether gap-time credit applies to time served following a violation of parole. In addressing this issue, we must first decide whether gap-time credit applies to a juvenile term of imprisonment. We also granted the motion of the Attorney General to participate as amicus.

II.

A.

"Gap-time" is a subject more difficult to articulate than understand; it need not send shivers of fear down the spines of those who practice criminal law. The gaptime provision in our Code of Criminal Justice deals with sentences of imprisonment imposed at different times. N.J.S.A. 2C:44-5b(2) provides, in relevant part:

When a defendant who has previously been sentenced to imprisonment is subsequently sentenced to another term for an offense committed prior to the former sentence, other than an offense committed while in custody:

....

(2) Whether the court determines that the terms shall run concurrently or consecutively, the defendant shall be credited with time served in imprisonment on the prior sentence in determining the permissible aggregate length of the term or terms remaining to be served....

[N.J.S.A. 2C:44-5b(2).]

This Court has previously noted that the statute's general purpose "is to avoid 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.' " Booker v. New Jersey State Parole Bd., 136 N.J. 257, 260, 642 A.2d 984 (1994) (quoting Model Penal Code § 7.06 commentary at 278 (1962)). The intent of the statute is to "counteract any dilatory tactics of the prosecutor in pursuing a conviction for an earlier offense after a defendant has been sentenced on another offense." State v. Carreker, 172 N.J. 100, 105, 796 A.2d 847 (2002) (quoting State v. Hall, 206 N.J.Super. 547, 550, 503 A.2d 344 (App.Div.1985) (internal quotation marks omitted)).

The three-prong test for entitlement to gap-time credit requires a showing that (1) the defendant has been sentenced previously to a term of imprisonment, (2) the defendant is sentenced subsequently to another term, and (3) both offenses occurred prior to the imposition of the first sentence. Carreker, supra, 172 N.J. at 105,796 A.2d 847 (citing State v. French, 313 N.J.Super. 457, 461, 712 A.2d 1281 (Law Div.1997)). "If those elements are established, then the defendant must be awarded credit for the time served on the prior sentence when the `permissible aggregate length of the term or terms' is determined." Carreker, supra, 172 N.J. at 105, 796 A.2d 847 (quoting N.J.S.A. 2C:44-5b(2)).

The facts of this case present a straightforward application of the concept of gaptime. Franklin committed the heroin and robbery offenses in July 1992. He was sentenced to a two-year indeterminate term of imprisonment on the heroin offense on August 14, 1992. Not until June 10, 1994, was Franklin sentenced to sevenyear sentences on the robbery offenses. Had Franklin been sentenced on the robbery offenses on the same day as the heroin offense, the trial judge would have had the option of imposing concurrent sentences that would have reduced the aggregate sentence for those combined offenses. Every day the disposition on the robbery offenses was postponed, Franklin lost the benefit of a potential concurrent sentence and a reduction of his aggregate sentence. The plea agreement on Franklin's robbery offenses provided that the sentences for those offenses were to run concurrent to the term of imprisonment he was then serving on the juvenile heroin offense. Franklin lost any advantage of the concurrent sentencing provision because he had completed his term of imprisonment on the heroin offense by the time he was sentenced on the robbery charges.

We are aware that the gap-time statute may give a defendant a windfall benefit in those circumstances where there is no purposeful delay in the scheduling of sentencing and the sentences cannot be imposed on the same day for practical purposes. In this case, the prosecution moved to have Franklin tried as an adult on the robbery offenses, a procedure that necessarily ensured that a disposition of the...