STATE OF NEW JERSEY v. FRANK ROMAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2688-02T4
A-2243-04T4A-2688-02T4 A-2243-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent

v.

FRANK ROMAN,

Defendant-Appellant.

_____________________________

FRANK ROMAN,

Plaintiff-Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Defendant-Respondent.

______________________________

 

Submitted January 31, 2005 - Decided March 3, 2006

Before Judges Lefelt and Seltzer.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County,

Indictment No. 01-07-02979, and from

a Final Decision of the New Jersey State

Parole Board.

Yvonne Smith Segars, Public Defender,

attorney for appellant (J. Michael Blake,

Assistant Deputy Public Defender, on the brief).

Zulima V. Farber, Attorney General,

attorney for respondent New Jersey State

Parole Board in A-2243-04T4 (Patrick DeAlmeida, Assistant Attorney General, of counsel and Walter C. Kowalski, Deputy Attorney General, on the brief).

Zulima V. Farber, Attorney General,

attorney for respondent State of New Jersey

in A-2688-02T4 (Maura K. Tully, Deputy

Attorney General, of counsel and on the

brief).

PER CURIAM

This opinion concerns the appropriate treatment of "gap- time" credits awarded in conjunction with a sentence imposing a period of parole ineligibility and the right of a defendant, claiming a misunderstanding of the way in which such credits are applied, to withdraw the plea of guilty resulting in the original sentence.

Defendant, Frank Roman, was convicted in Hudson County, on Indictment 125-01-00, of possessing a controlled dangerous substance and sentenced, on November 16, 2001, to a five-year period of incarceration. He was credited with the 224 days during which he had been held before sentence was imposed. See R. 3:21-8. On December 2, 2002, defendant was sentenced, pursuant to a negotiated plea agreement, to serve a nine-year custodial term for carjacking, a charge contained in Indictment 01-07-2971. The sentence was run concurrent to the sentence being served on the drug offense. The sentencing judge imposed an eighty-five percent parole ineligibility period pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge also imposed a three-year period of parole supervision upon release from custody, as mandated by NERA.

Because the carjacking offense was committed before defendant was sentenced on November 16, 2001, for the drug offense, the court awarded defendant 382 days of "gap-time credit" as required by N.J.S.A. 2C:44-5(b)(2). When the plea to the carjacking charge was taken, the court advised Roman that he would "be required to serve eighty-five percent of the nine years, [that is] seven years and six months." Roman was also advised that, when he finished the custodial portion of his term, he would be subject to a "three year term of parole", a violation of which would require that he "be returned to prison to serve the remaining balance of your nine years." The court further indicated, in response to Mr. Roman's request for confirmation of his credits, that he would "receive credit with respect to current time and jail time."

After the sentence had been imposed, defendant inquired of the Parole Board how the "gap-time" would be credited. Presumably, he sought a determination that the credit would be applied to the beginning, or "front end", of the sentence. This would have the effect of moving the start date of his carjacking sentence forward to coincide with the start date of his sentence on the drug offence. That result would meet the purpose of the "gap-time" statute, which recognizes that a "defendant loses the potential benefit of a concurrent sentence every day the second sentence is deffered." State v. Franklin, 175 N.J. 456, 459 (2003). The "gap-time" statute is intended to "ensure that a defendant's sentence is not lengthened because of delays in the prosecution of the offense underlying the second sentence." Id. Applying "gap-time" credits to the "front-end" of the sentence would also, however, have the effect of reducing the period of parole ineligibility imposed by the Court, because the sentence (and the parole ineligibility period) would be reduced by the 382 days served before the carjacking sentence was imposed.

The Parole Board responded to defendant's inquiry by advising him that the "gap-time" credit award of "382 days will not be applied to reduce the parole ineligibility term which is established at eighty-five percent of the nine (9) year sentence." The effect of this determination was to apply the "gap-time" credit to the portion of the carjacking sentence that remained after the expiration of the period of parole ineligibility (the "back end" of the sentence).

On the appeal from the decision of the Parole Board, defendant argues that the failure to credit "gap-time" to reduce the period of parole ineligibility renders the credit meaningless because other credits will reduce the maximum amount of time he will have to serve. He argues that no period of incarceration will remain after eighty-five percent of the nine-year sentence has been served, so that there will be no time to which the "gap-time" credits might be applied. He also argues that a failure to apply the gap time credits to the "front end" of his sentence frustrates the purpose of the gap time statute to have him treated as if his concurrent sentences were imposed simultaneously.

We recognize the practical concerns reflected in defendant's position. Nevertheless, we have previously considered, and rejected, identical claims. Meyer v. New Jersey State Parole Bd., 345 N.J. Super. 424 (App. Div. 2001), certif. denied, 171 N.J. 339 (2202). Defendant understands that the decision in Meyer is fatal to his position and, accordingly, submits that the decision "was incorrect and should not be followed." We have independently reviewed the authorities and the arguments submitted on this appeal and reach the same conclusion as did the panel deciding Meyers. We believe that case was correctly decided and adhere to the principles there expressed.

We add only that defendant's arguments are, in essence, a claim that applying "gap-time" credits to reduce the period of parole ineligibility is necessary, at least in concurrent sentence situations, to place "defendants in the same position in which they would have been" had the sentences been imposed on the same day." Booker v. New Jersey Sytate Parole Bd., 136 N.J. 257, 268 (1994) (quoting Model Penal Code, 7.06 commentary at 278 (1962)). That argument has been characterized as "persuasive" but rejected on the grounds that such an "interpretation would lead in many cases to the neutralization of mandatory-minimum periods of parole ineligibility . . . ." Id. Accordingly, we affirm the decision of the Parole Board.

Defendant also appeals the sentence imposed as a result of his plea, although he had not made an application to withdraw that plea. Since no such application was made, we do not have the benefit of a trial level opinion addressing the issues raised. We believe, however, that the record is sufficiently clear that we may exercise our original jurisdiction, pursuant to R. 2:10-5, to resolve them.

Defendant premises this application on the assertion that he was under the impression his "gap-time" credit would reduce his period of parole ineligibility and because he was incorrectly advised of the consequences of a violation of the probationary term. It is clear that defendant was not misled with respect to the "gap-time credit." The trial court asked specifically "do you understand because this is [NERA] sir, you will be required to serve eighty-five percent of the nine years, seven years and six months?" Defendant replied "yes sir."

Defendant was advised that he would receive credit for "all good time, gap credit time and work time." There is no suggestion that those credits will not be provided. Accordingly, there is no basis for defendant's claim that he was misled or that his questions were inappropriately answered.

Moreover, the court advised defendant: "Now, as far as the sentencing [on the carjacking conviction] is concerned, we do it as early as we can because once you are sentenced, then you get concurrent time. Until you are, you are done." It is fairly obvious that this comment constituted an explanation that the two sentences would not run currently until the second sentence was imposed. Defendant cannot complain of the information he was given respecting "gap-time."

It is true that the court misspoke regarding the effect of a violation of the mandatory three year period of parole supervision. The court advised defendant that a parole violation would require him to serve the remainder of his nine-year sentence although a violation would, in fact, subject defendant to service of the remaining term of his parole supervision. See State v. Freudenberger, 358 N.J. Super. 162, 167-70 (App. Div. 2003). Nevertheless, the plea agreement, executed by defendant, accurately notified defendant, that a violation of the parole supervision would subject him to a possible "return to prison to serve" any remaining balance of that three-year probationary period "even if you have completed serving the term of imprisonment previously imposed." (13a) Defendant acknowledged that he understood this requirement when he executed the agreement form.

We also note that defendant has not suggested that, had he understood the consequences of a violation of the probationary term, he would have declined to plead guilty. Under all of these circumstances, we cannot conclude that the defendant has borne the burden of demonstrating that he was "misinformed . . . as to a material element of a plea negotiation" or that he relied upon the information provided so that the correct information would have made a difference in his decision to plead. State v. Howard, 110 N.J. 113, 122-23 (1988). Accordingly, we affirm the sentence imposed on the plea to Indictment 01-07-2971 (carjacking).

As to the appeal under docket no. A-2688-02T4, the sentence that was imposed is affirmed. As to the appeal under docket no. A-2243-04T4, the decision of the State Parole Board is affirmed.

 

We have consolidated these appeals for purposes of this opinion.

(continued)

(continued)

9

A-2688-02T4
A-2243-04T4

March 3, 2006