STATE OF NEW JERSEY v. LAWRENCE GUDMESTAD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2405-03T42405-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LAWRENCE GUDMESTAD,

Defendant-Appellant.

__________________________________

LAWRENCE GUDMESTAD, A-1606-04T4

Petitioner-Appellant,

v.

NEW JERSEY PAROLE BOARD,

-Respondent.

___________________________________

 

Submitted: January 24, 2006 - Decided May 30, 2006

Before Judges Kestin and Lefelt.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Monmouth County, 85-01-0101-I (A-2405-03) and New Jersey Parole Board (A-1606-04), 85-01-0101-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Cecelia Urban, Assistant Deputy Public Defender, of counsel and on the briefs).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent State of New Jersey in A-2405-03 (Mark P. Stalford, Assistant Prosecutor, of counsel; Matthew S. Seymour, Legal Assistant, on the brief).

Nancy Kaplen, Acting Attorney General, attorney for respondent New Jersey Parole Board in A-1606-04 (Michael J. Haas, Assistant Attorney General, of counsel; Walter C. Kowalski, Deputy Attorney General, on the brief).

PER CURIAM

These consolidated appeals are before us in their current form as a result of our order of April 6, 2005. The factual and procedural elements of the matters were fully set out in that order. We will not repeat them here.

Following our remand to the trial court on the motion for reduction of sentence, Judge Mellaci rendered an oral opinion on November 14, 2005. He stated:

The power to determine whether or not a New Jersey sentence should run concurrent or consecutive is primarily a judicial function. Breeden [v. Department of Corrections, 132 N.J. 457, 459 (1993)].

Sentencing principles, as well as principles of comity and fairness should guide the New Jersey sentencing court in determining whether the penal and rehabilitative purposes of its original sentence have been fulfilled by the imprisonment elsewhere. Id. at 459-60.

However, pursuant to the United States Constitution, Article 4, Section 1, this Court need not "give full faith and credit to the sentencing disposition of a sister state." Id. at 465 (citing Nelson v. George, 399 U.S. 224, 229; 90 S. Ct. 1963, 1966; 26 L. Ed. 2d 578, 583 (1970)).

Moreover, "if the sentencing authority of this State is to yield to that of another State, then it must be with the concurrence of a New Jersey sentencing court." Breeden, supra, 132 N.J. at 469.

Additionally N.J.S.A. 2C:44-5(c) states that when a defendant is "sentenced to imprisonment for an offense committed while on parole in this State, such term of imprisonment and any period of re-imprisonment that the parole board may require the defendant to serve upon the revocation of his parole shall run consecutively unless the Court orders these sentences to run concurrently."

"[The] defendant who violates the law of two states owes a debt to two different states." Breeden, supra, 132 N.J. at 470.

It is the duty of this Court to determine if defendant's debt to New Jersey has been satisfied by a sentence served in another state. This Court shall examine in the interest of comity, "whether the penal purposes of its original sentence will have been fulfilled by allowing a defendant credit for time served in the other jurisdiction under that jurisdiction's intent that the punishment for both offenses be concurrent." [Ibid.]

Regardless, this Court may decide "consecutive sentencing is required to vindicate the sentencing purposes of the [New Jersey] Code [of Criminal Justice]." [Id. at 471.]

Here, defendant was granted parole from New Jersey to Florida on May 8, 1996. On July 9, 1996, two months later, defendant failed to report to his probation officer as instructed. Also defendant failed to obtain the approval of his parole officer in changing his approved residence and failed to participate in and comply with the regulations of an outpatient drug counseling program.

In addition to failing to comply with the various conditions of his parole, defendant was arrested on July 20th, 1996 in Florida on charges of burglary, robbery, grand theft of an auto and burglary of a conveyance. This Court takes special notice that defendant was arrested for robbery in Florida while serving parole on New Jersey charges of among other things, armed robbery and attempted armed robbery.

Clearly defendant's various violations of his New Jersey parole and arrest and conviction on new charges while in Florida belie any argument that he may be rehabilitated by his time served in a Florida prison. Defendant was permitted by this State to be paroled to Florida and he repays this State's courtesy by blatantly violating his parole in more ways that one within two months of his being in Florida.

Based on defendant's past history[,] there appears to be a high likelihood that, if released, defendant will commit another offense. Also defendant's arrest in Florida for robbery while serving parole from New Jersey robbery charges was a blatant act of defendant's insolence towards New Jersey's attempt at rehabilitating him. It is also apparent that this defendant still needs to be deterred from breaking the law.

Hence this Court finds that defendant still has a debt to New Jersey and as a result, the remainder of defendant's sentence for violating his New Jersey parole is to run consecutive to his Florida sentence. Defendant was sentenced in New Jersey to 20 years with 5 years parole ineligibility on May 31, 1985 and was paroled to Florida on May 9, 1996.

Defendant violated his parole and a parole warrant was issued on July 9, 1996. He is entitled to jail credit on his New Jersey sentence from May 31, 1985 to the date prior to which the parole warrant was issued, which would be July 8, 1996.

[N.J.S.A. 30:4-123.65] notes that "The duration of time served prior to parole, plus the duration of any time served on parole, less any time after warrant for retaking of a parolee was issued pursuant to Section 18 of P.L. 1979, c. 441 (C. 30:4-123-62) but before the parolee is arrested, plus the duration of any time served after revocation of parole, shall not exceed the term specified in the original sentence."

Defendant's total jail credit from May 31, 1985 to July 8, 1996 is 4,057. He maxed out on his Florida sentence and was made available to New Jersey on April 2nd, 2005, and was returned to New Jersey on April 14, 2005. Defendant has remained incarcerated in New Jersey up to today. Defendant's jail credit from April 3rd, 2005 to November 13, 2005 is 225 days. Hence the defendant's total jail credit for his time served in New Jersey is 4,282 days.

According to a South Woods State Prison fact sheet report, defendant's max out date is July 19, 2007. Defendant was sentenced in Florida on December 10, 1996 and received 151 days jail credit. Thus prior to his Florida sentencing, defendant had been [in] prison in Florida since July 13, 1996. He maxed out on his Florida sentence and was made available to New Jersey on April 2, 2005. Defendant thus spent a total of 3,186 days incarcerated in Florida.

Defendant's motion for reduction of sentence is denied and the remainder of his sentence for violating his New Jersey parole will run consecutive to his Florida sentence.

In addition to the arguments noted in our April 6, 2005 order, defendant, through counsel, has made the following arguments addressed to the trial court's decision on remand:

POINT I THE REMAND COURT'S DECISION MUST BE REVERSED BECAUSE IN DENYING THE MOTION TO REDUCE SENTENCE, THE COURT FAILED TO APPLY BREEDEN'S DETERMINATIVE SENTENCING, EQUITABLE AND COMITY PRINCIPLES - ALL OF WHICH MILITATED IN MR. GUDMESTAD'S FAVOR.

A. THE COURT FAILED TO CONSIDER, PURSUANT TO BREEDEN, WHETHER THE 9 YEARS MR. GUDMESTAD'S SERVED ON HIS 1996 FLORIDA OFFENSES INCLUDING THE 2.25 YEARS SERVED IN NEW JERSEY PRISON ON THE FLORIDA TERM HAD FULFILLED THE PENAL AND REHABILITATIVE PURPOSES UNDERLYING THE 20-YEAR SENTENCE THE NEW JERSEY COURT HAD IMPOSED IN 1985 FOR HIS OFFENSES HERE.

B. THE TRIAL COURT FAILED TO APPLY THE PRINCIPLES OF COMITY AND EQUITY WHICH ALSO MILITATED IN FAVOR OF GIVING MR. GUDMESTAD CREDIT FOR THE 9 YEARS HE SERVED (1996 - 2005) ON THE FLORIDA SENTENCE.

1. THE COURT IGNORED THE INHERENT INEQUITY IN NEW JERSEY'S FAILURE TO SEEK CUSTODY OF MR. GUDMESTAD IN 1996 (WHEN IT ISSUED ITS DETAINER), AND ITS SUBSEQUENT DENIAL OF CREDIT FOR THE TIME SERVED ON THE FLORIDA SENTENCE (1996-2005) WHICH WAS EXPRESSLY INTENDED TO RUN CONCURRENT WITH HIS NEW JERSEY SENTENCE.

2. THE PRINCIPLE OF COMITY ALSO MILITATES IN FAVOR OF GRANTING MR. GUDMESTAD CREDIT FOR THE TIME HE SERVED ON HIS FLORIDA SENTENCE.

Defendant also raises the following points in a pro se supplemental brief:

POINT I BY THE REMAND COURT'S OWN ADMISSION IT DID NOT COMPLY WITH THIS COURT'S ORDER ON REMAND AND SHOULD BE REVERSED.

POINT II APPELLANT WAS WRONGLY PRECLUDED AND EFFECTIVELY BARRED FROM RELEVANT AND MATERIAL LEGAL PRESENTATION AND RIGHTFUL PARTICIPATION IN PROCEEDINGS ON REMAND.

POINT III FROM ONSET, APPELLANT WAS DENIED EVEN THE MOST BASIC ELEMENTS OF EQUITY AND FAIRNESS.

The State argues, in response, that the trial court did not err in its decision on remand.

In the appeal from the Parole Board's decision, counsel argues that "[t]he Parole Board's amended parole revocation decision was both ultra vires and arbitrary, because the Board had neither the authority to decide the order in which sentences are served, nor any rational basis to presuppose that a sentencing court would require Mr. Gudmestad to serve the time owed on his New Jersey sentence consecutive to the Florida sentence he was then serving." The State has responded by arguing that "[t]he Parole Board has no authority to run Gudmestad's preexisting New Jersey sentence concurrent with his subsequent Florida sentence;" and that "[u]nder existing law, the [Parole] Board was prohibited from crediting Gudmestad with time served on his Florida sentence between the issuance of its parole warrant and his return to New Jersey custody; therefore, the Board's decision was neither ultra vires nor arbitrary."

We have analyzed the record in the light of the arguments advanced by the parties and prevailing legal standards, and we reject appellant's arguments addressed to the trial court's disposition on remand. We are in substantial agreement with Judge Mellaci's holding, for the reasons given, that jurisdiction over the sentencing issues resides with the trial court, not the Parole Board, and that the principles of Breeden govern the outcome. Moreover, Judge Mellaci's treatment of the issues in the face of the factual background at hand embraced an appropriate application of the principles of Breeden, including adequate consideration of values based on concepts of equity and comity. With full consideration of all the facts and circumstances, we are in substantial agreement with Judge Mellaci's assessment that the penal and rehabilitative purposes of the New Jersey sentence had not been fulfilled in the circumstances presented and would not be fostered by granting any credit for all or a portion of the Florida sentence.

Certainly, the Florida court had no authority to determine how the New Jersey sentence was to be served, whether concurrent with or consecutive to the Florida sentence. That was a decision to be made in New Jersey. Thus, no equities arise from appellant's professed reliance on the Florida court's "promise" that could not authoritatively have been made. We discern no misapplication of discretion in our trial court's evaluative choices.

We also see no flaw in the procedures employed by the trial court on remand. Nothing of significance could have been added by appellant's own appearance in the remand proceeding. The primary issues were questions of law and the factual background had been fully developed. The trial court fully and faithfully discharged its responsibilities on remand.

Given the trial court's decision and our determination that it embodied no error, we discern no merit in the appeal from the Parole Board's decision. It was essential, as this matter matured, that that appeal should proceed, in the event the result at the end of the day required any action on the part of the Parole Board. In the light of our disposition of the appeal from the trial court's decision, however, the questions raised in the appeal from the Parole Board are now moot. We need not comment on the question whether the Board was correct, in the first instance, to make the decision it announced, or whether it should have sought the guidance of the trial court or directed defendant to do so.

The decision of the trial court is affirmed; the appeal from the Parole Board's decision is dismissed.

 

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A-2405-03T4

May 30, 2006