*1 257 explaining jury what theft did occur. The indict without “in threatening the taxi driver charged ment defendant with jury committing deny opportunity a theft.” To course of presented evidence guilt on the basis of the to resolve defendant’s jury, subjects risk that to it defendant to the substantial wrongdoing, will convict him of knowing committed some lesser he entirely, very him evil to acquit rather than greater offense States, 205, v. U.S. avoided in these cases. Keeble United be (1973). 212-13, 1993, 1997-98, 36 L.Ed.2d 93 S.Ct. judgment Appellate Division. I affirm the would CLIFFORD, and reinstatement—Justices For reversal POLLOCK, and STEIN—4. GARIBALDI
For O’HERN—1. affirmance—Justice A.2d 984 APPELLANT-APPELLANT, BOOKER, v. NEW JERSEY DOUGLAS BOARD, RESPONDENT-RESPONDENT. STATE PAROLE APPELLANT-RESPONDENT, NELSON, DARELLE BOARD, NEW STATE PAROLE v. JERSEY RESPONDENT-APPELLANT. APPELLANT-APPELLANT, FITZPATRICK, NEEDHAM BOARD, PAROLE v. NEW JERSEY STATE RESPONDENT-RESPONDENT. 1, 1994
Argued 1994. Decided June March *2 Blake, Defender, argued Deputy Assistant Public Michael J. respondent Darelle Nel- appellant Douglas Booker and cause for (Susan Reisner, Defender, attorney). Acting Public L. son Defender, argued the Wilensky, Deputy Public Jay L. Assistant (Susan Reisner, Fitzpatrick L. appellant Needham cause for Defender, attorney). Acting Public General, Carlin, Attorney argued the cause Deputy
Michael D. *3 Jersey Board appellant New State Parole respondent and (Deborah Poritz, Jersey, attorney; Attorney of New T. General counsel). General, Yannotti, Attorney Joseph L. Assistant by was delivered opinion of the Court O’HERN, J. “gap-time provision, credit” found appeal
This concerns (hereinafter 5(b)(2)). 2C:44-5(b)(2) governs That section N.J.S.A provision multiple offenses. The sentencing times for at different imprison- who has been sentenced requires that a defendant another term for an offense subsequently sentenced to ment and is (other sentence prior imposition of the former committed custody) in be “credited” at committed while than an offense imprison- so much of the term of sentence for time of the second prior on the sentence. has served ment as the defendant 241, 540 A.2d Nickolopoulos, 110 N.J. In Richardson v. (1988) (Richardson II), use of the explained that with the usual was not to be confused expression “gap-time credit” “jail to as credit.” We presentence time referred 5(b)(2) in the adaptation provision of a partial was a explained that “ Model Penal Code that establishes a ‘limit on the cumulation of ” consecutive sentences.’ Id. at (quoting 540 A.2d1246 Model (1962)). § commentary Penal Code 7.06 at 272 To limit such cumulation, multiple when imposed sentences for offenses are on occasions, different sentencing authority section 7.06 restricts the by requiring of courts apply them to to the later sentence a credit sentencing for time served hearings between the two if the later prior sentence is for a crime committed to the earlier sentence. explained mind, We in II “[w]hat Richardson in MPC had then, speaking of a ‘credit’ was in fact a limit on the maximum imprisonment imposed could be on the occasion, not a declaration that prior the time served on the regarded sentence be as time on served the current sentence.” general Id. at purpose A.2d 1246. The behind the provision manipulation is to avoid the of trial dates to the disad vantage put of defendants position and to defendants in the same they would have been “had the two offenses been tried at the Code, § supra, same time.” Model Penal commentary 7.06 at 278. Our Code does not limit the of consecutive terms imposed separate occasions. We thus had to determine 5(b)(2) II meaning Richardson what provision ascribe to the imposition when the judicially- the later sentence includes a imposed parole bar intended to be consecutive to the earlier sentence. five-year Richardson had been sentenced to a term of imprisonment bar, two-and-one-half-year with a to be three-year served consecutive to an earlier sentence. Richardson sought two-and-one-half-year to have the bar reduced already time that he three-year had served on the five-year sentence at the time he received the sentence. We *4 apply gap-time declined to credit to the front end the second Otherwise, sentence. the credit parole would reduce the bar that sentencing imposed court punishment had as for the offense. application Such an prisoner of the credit would allow the a free crime because or he she would not serve time for the offense for imposed Rather, which the court the second sentence. we credit gap time to the back end of the In way, sentence. statute, plain language requires which time effectuate the permissible served on the later offense to be credited to the remaining aggregate length of the term or terms to be served. At time, open question II the same we left Richardson of how might defendants from our decision to credit time to benefit the back end of the sentence. granted posed in these
We
certification to review two issues
(1993). First,
486, 487,
gap-
appeals. 134
I
essentially
Fitzpatrick present
The cases of Booker and
authority
question,
whether
credits reduce the
of a
first
thus,
bar;
Booker’s or
impose
parole
court to
whether we use
case,
Fitzpatrick’s
analysis
our
and conclusions remain the same.
analysis,
only
the facts in Booker. The
For ease of
we refer
fully
opinion
Fitzpatrick’s
are
out
in the
below.
facts of
case
set
(1993).
191, 194-95,
N.J.Super.
Sentence One for Crime Two twenty years ten-year bar. 5/25/90): (imposed with twenty-five-year Sentence Two for Crime One fifty years judicial bar, concurrent Sentence One. *5 days of 106 Specifically, Booker asks whether twenty-five-year parole bar. reduces his First, apply II not argues that Richardson should Booker of distinguished him from that his situation can be because concurrent, where- are on the basis that his sentences Richardson that he should be were consecutive. He contends as Richardson’s “had the two offenses been put he would have been back where Code, § supra, 7.06 com- time.” Model Penal tried at the same bar, says, twenty-five-year parole Booker mentary His at 278. would, effect, That to run at the earlier date. should commence time, jail equate gap time with retroactive and make the sentence Legislature See intended. a result that we do not believe 2C:44-5(e)(l) imprison- (providing that terms of “[w]hen NJ.S.A merge in are concurrently, shorter terms and ment run term”). by discharge longest satisfied Second, very days has argues that at the least the Booker reducing parole bar “perforce” of the second sentence’s the effect days. gap-time credits are a limit by fifty-three He reasons that impose at imprisonment that a court can on the maximum term Thus, has sentencing. that his second sentence itself he contends argues he received days. He that because been reduced ie., bar, possible judicial parole one-half of his base the maximum fifty percent have fifty years, he therefore is entitled to (ie., fifty-three days) subtracted from the second the 106 years.1 argument, while parole twenty-five That sentence’s bar supported by language of the Code. internally logical, is not 2C:43-6, judicial imposition of which authorizes the N.J.S.A bars, speak calculating bar does not terms may impose. term that courts on the basis of argument appears insignificant in the context of Booker's sen 1The rather However, 106-day fiftyyears, long to wait for a credit. tence of which is a time great atypical. he Booker's base term on Sentence Two is so because this case is aggregate fifty- pleaded guilty agreed to five multi-count indictments substantially year if we term. with much shorter sentences could benefit Others position. adopt were to Booker's Rather, provides the statute aggravating that when the factors *6 factors, substantially outweigh mitigating the may the court “fix a parole minimum ineligibility] [of term not to exceed one-half of the * * 2C:43-6(b). pursuant term set to subsection a. N.J.S.A (a) Subsection establishes imprisonment. the base terms for For example, the degree base term for a crime of the first is between years twenty years; ten and second-degree the term for a crime is years years. between five and ten We are satisfied that 5(b)(2) Legislature contemplate did not that the intended effect of authority would be to impose reduce the of courts to ten-year a parole first-degree aggravated bar offense such as sexual assault.
By way
analogy, may
jail
we
consider
If
prisoner
credit.
days
imposition
had served 365
twenty-year
before the
of a
robbery,
one-year jail
sentence for armed
credit would not
potential judicial parole
limit the
years
bar to nine-and-one-half
(ie., fifty percent
years).
possible
nineteen
The maximum
(ie.,
parole
years
fifty percent
bar would still be ten
twenty
(Of course,
years).
prisoner
only
years
would serve
nine
subsequent
becoming
eligible
parole.)
before
for
In
addition,
Legislature
to assume that the
expect
would
courts to
of,
impose
example,
a reduced base
years
nineteen
days,
any parole
calculated,
from which
bar would have to be
Judges
is
impose
unrealistic.
do not
sentences
such terms.
Legislature
The
would not have intended such an administrative
Hence,
irregularity.
agree
Appellate
we
with the
Division that “a
term,
period
parole disqualifier
against
is an absolute
which
(other
credits).”
jail
there are to
no
be
credits
than
265 N.J.Su
207,
per.
Accordingly,
reject
II question primary of whether credits advance parole-eligibility Respondent much dates is closer. Darelle Nel following son raised the issue. Nelson received the sentences. 5/11/90): (imposed sentence, no bar. Two four-year Sentence One Crime 12714/90): (imposed sentence, no five-year Two for Crime One Sentence concurrent with Sentence One. bar, of 218 argues his Nelson Defendant parole-eligibility date. primary his should advance II, A.2d supra, 110 N.J. In Richardson although gap-time hypothetically that Attorney suggested General aggregate of the a front-end reduction do not effect bar), (and statutory parole any judicial or thereby reduce sentence of the sentence they may reduction effect a back-end primary parole-eligibility proportionately advance and thus date, aggregate sentence. Under that function of the which is a the total provision is to reduce interpretation, the effect requiring the Parole Board gap period, thus sentence eligibility on the new reduced primary parole based calculate *7 peri parole-ineligibility in shorter which would result argued applied we his had that unless od. Richardson bar, meaningless. The parole the statute would be credits to his suggested adopted by defendant Nelson was interpretation now responding to Richardson. Because merely a means of as II, did not properly us Richardson issue was not before resolve it. accept argument. urges not to Nelson’s Parole Board us
The Act) 30:4-123.51(a) (the part, provides, in Parole N.J.S.A following: of incarceration in a adult inmate sentenced to a term county penal Each at the State Prison or the correctional
institution, or to a
term
years
specific
eligible
having
for
after
served
shall become
parole
institution for women
primarily
* * *
minimum
has
where no
mandatory
one-third of the sentence imposed
* * *
good
for
behavior
and credits for
* *
less commutation time
been imposed
assignments
diligent
*.
to work and other institutional
application
statute,
plain language of the
emphasizes
Board
The Parole
only
imposed,”
explains
that it is
of the sentence
“one-third
parole
sentencing
the sentence that
court itself reduces
when the
Legislature
The Board reasons that the
eligibility is advanced.
gap-time credits reduce the one-third
would have mentioned that
Legislature
We are
period if
is what the
had intended.
informed, however,
credits,
jail
although also not mentioned
Act,
in the Parole
do serve
primary
to advance
parole-eligibility
question
close,
dates. The
is
but we believe that if
give
we are to
any meaning at all
provision,
it must involve some reduction
period
the cumulative
of time to be served—a limit on the
maximum term imprisonment
imposed
that can be
at sentenc
ing.
parole
provide
laws
prisoners
primarily
will become
eligible
they
when
have served one third of their
credits,
sentences. As
types
with other
sentencing
credits must
by
be determined
the court at sentencing. The
Parole
responsible
Board is not
for awarding such credits. We
could remand such matters to the trial courts for recalculation of
imposed,
sentences
but we think that such a solution would be
unwieldy. Because the other administrative credits must be calcu
(and
by
lated
the Parole Board
may
because those
change
misconduct),
it makes sense that once credits have been
court,
awarded
“the
compute
Parole Board must
defendant’s
eligibility date on the basis of the reduced
N.J.Super.
sentence.” 265
Ill question A final is whether credits affect the aggregate of consecutive example, sentences. For assume that *8 Nelson’s sentences had been consecutive rather than concurrent. (one-third time) days Would the 72 of of the 218 of reduce the actual nine-year time to be served on aggregate the opinion term? suggests below in that the case of consecutive sentences the credit primary parole-eligibility does not advance purposes dates because the of the credit implicated. are not Code, Returning to purpose the Model Penal gap-time the put credits is to in position the defendant the in which he would same time.” tried at the been “had the two offenses been have Code, commentary supra, § 278. Whether 7.06 Penal Model years four years to four or five consecutive Nelson receives five, argument goes, makes no difference. so the consecutive to same, years, is nine unlike the aggregate the the In either case five-year delay sentencing in in on an earlier situation which in four-year can result be to a term to served concurrent argument, has jail argument, That like Booker’s more time. gap-time the statute appeal, plain language but the logical “[wjhether apply the court deter- clearly that the credits states concurrently consecutively.” run terms shall or mines the added). 2C:44-5(b)(2) may (emphasis Circumstances N.J.S.A jail (given only interplay of for the in which the credits arise time) serving gap-time is and prisoner for which the offense prisoner) being by (given other served the credits sentences Furthermore, an be across- affect the total time to served. could credits to both concurrent application the-board provision’s purpose to achieves the deter consecutive sentences (whether simple unavailability delay dilatory to or due tactics counsel). all, in prosecutor the will not know or After court if consecutive or concurrent. the sentences are be advance Hence, applies to reduce the hold that the statute sentences. of consecutive Attorney not Advice holding
Our does contradict General’s or the Office of the Letter AAA No. M85-6515 Administrative 15, 1985, both of which memorandum dated October Court’s part determination of credits is declare that by no process be conducted court. We foresee difficulty molding regula- its in the Parole Board administrative imposed,” 30:4-123.- to reflect the “sentence N.J.SA tions 51(a), any gap-time prisoner that the should be reduced been has awarded. problem are
Finally, we aware retroactive Retroactivity force Parole Board ruling would create. would many primary parole-eligibility dates to recalculate cases
267 gap-time which credits have been awarded. The Parole Board has undoubtedly procedures place set its internal very for that 5(b)(2) important parole. final decision Given that has been 1979, applying ruling codified since prospectively, except this appeal, hardly thought cases now on post can be to raise an ex problem. facto
IV cognizant We are of the Act’s internal inconsistencies as well as applying present substantial difficulties in the Act. “At the time, gap-time wrapped mystery credits remain ‘a riddle in a ” Edwards, enigma.’ 256, 262, N.J.Super. inside an State v. (App.Div.1993). appellant A.2d 919 As counsel for Booker it, puts “Although disintegrated, question Soviet Union has ‘gap time’ remains.” computer We wish that we could write a program gap-time question that would answer each as it arises. believe, however, Appellate We disposition Division’s purpose achieves the main credits. In we hold that a is where defendant sentenced to a summary, period ineligibility, gap-time aggregate reduces the term to be served after the only defendant serves the of incarceration. Where a defendant mandatory period aggre- incarceration,
receives no credit reduces the mandatory period gate eligibility term and the Parole Board must defendant’s date on compute the basis of the reduced sentence. N.J.Super.
[265 1153.] 625 A.2d dates, prisoners’ parole-eligibility If credits do not affect truly “bogus we would have what the Public calls Defender credits,” any Subtracting a calculation without effect. fifty-year any from the back end of a sentence does not confer considerable benefit on most offenders because those offenders long parole long with bars have out” before will “maxed the credit hand, relatively becomes relevant. On the other in cases of short time, involving fairly period sentences substantial as case, example legislative Nelson’s the credits serve valid purpose. *10 concurring dissenting persuasive makes a
Our
and
member
in
argument
He is
against our resolution
the issues.
correct
gap
to
front end of concurrent
asserting
crediting
that
time
the
goal
in
putting
the
defendants
sentences would better achieve
they
in
been
the two
position
the
which
would have
“had
same
Code, supra,
at
time.”
Penal
been tried
the same
Model
offenses
time,
However,
commentary
§
same
that
at 278.
at the
7.06
many
interpretation would
in
cases to the neutralization
lead
parole ineligibility, a
that
mandatory-minimum periods of
result
to
Legislature never intended. Hence we adhere
we believe the
II,
241,
1246,
holding
supra,
in
540 A.2d
our
Richardson
110 N.J.
That
apply
to the back end
sentences.
as well as
holding applies
consecutive sentences
concurrent
sentences,
plain language of
as
the statute.
indicated
Application
comports with
of the credits to consecutive sentences
understanding
oh the
our
the credits are
“‘limit
basic
”
243,
at
I Legislature gap-time provision The extracted the from the (MPC) Model Penal Code section on consecutive and concurrent 7.06(2)(b) (1980). sentencing. § See MPC The MPC limited the imposed of consecutive sentences that could be multiple longest offenses to the extended term that could be 7.06(l)(c). imposed § purpose for one offense. See id. gap-time provision in the MPC was to enforce that limit situations in which a defendant is sentenced at different prior imposition times for crimes committed of the first sen- § commentary id. 7.06 tence. See at 277-79. explained in Nickolopoulos,
As
Richardson v.
110 N.J.
243-
(1988),
enacting
In that the should not on the Court legislative history guidance. primary interpretive A source is (Com- commentary of the the Criminal Law Revision Commission mission) Jersey 2 to its 1971 draft of the Code. See New Penal Report the Law Revision Code: Final Criminal Commission (1971). However, illuminating commentary is not because the sentencing 1971 draft included the MPC limit that Commission’s § Legislature from 1 id the later deleted the Code. See 2C:44- 5a(3). commentary gap-time the The Commission’s addresses 2 sentencing in of that limit. See id at 336. the context
Furthermore, sentencing the limit when the Senate deleted Code, ultimately it did so without the bill that became the from Hence, easily purpose the explanation. we cannot understand provision that enforced underlying retention of the the Senate’s limit. II appeals us issues that the three before The Court identifies two (1) credits, reducing by an overall present: whether authority impose a a “correspondingly reduce court’s to (2) bar,” proportion credits judicial parole “gap-time whether and ately primaiy when parole-eligibility a date” advance defendant’s 261, imposed. A.2d mandatory no been Ante at minimum has question and the majority at answers first “no” 986. 261, gap “yes,” 642 A.2d It concludes that second ante at 986. only aggregate be to reduce an sentence time should credited calculated, be after bar has been and that time should prior to calculation to reduce an sentence credited parole-eligibility aof defendant’s date. however, generally, requiring more
The issues could be restated (1) apply to decide concurrent simply us to how (2) times, imposed they apply how at different sentences imposed at times. The answer to consecutive sentences different questions attempting identify is informed those broader in our As the purpose that the credit should serve Code. Edwards, N.J.Super. Appellate in State Division observed v. (1993), majority A.2d 919 “The view is the statute prosecutor dilatory of a designed was to counteract the tactics had pursuing an earlier offense after defendant a conviction for This crime.” Id at 622A.2d 919. been sentenced another similarly acknowledges general purpose behind “[t]he Court manipulation of trial provision is to avoid the dates put same disadvantage of defendants and to defendants *12 they been two been position that would have ‘had the offenses ” (quoting Ante at A.2d at tried at the same time.’ 642 985 278); 265-66, MPC, § commentary at see ante at 642 supra, 7.06 (same). end, gap-time that should be A.2d at 988 To attain adjusts applied in a manner the affected sentences to what that they they imposed at the time. have been had been same would imposed respect to concurrent sentences at different
With times, by to front end goal crediting gap is achieved time that
271
subsequent
sentence,
of the
thereby
concurrent
reducing parole-ineligibility portion
sentence,
subsequent
of the
whether
segment
is the result of
judicially-imposed parole
a
bar or the
parole ineligibility
calculated
majority
the Parole Board. The
rejects
approach,
determining
application
of
credit
to the front end of
subsequent
concurrent sentence
* * *
“would, in
equate gap
jail
effect
time with
time.” Ante at
262,
A view is that time accounts for the time served imposition between the of imposition the first sentence and the sentences; subsequent jail applied pursuant to Rule 3:21-8 accounts for imposition the time served between arrest and Arguably, concepts first sentence. the two are distinct and re main if gap synchronize so even time is used running Edwards, concurrent supra, N.J.Super. sentences. See 263 (discussing jail A.2d 919 distinction between credit and credit). Furthermore, application credit to the back end of a subsequent appear concurrent sentence accomplish does not goal insuring that a defendant does not receive different multiple solely treatment being offenses on account of sen- separate example, respondent tenced at times. For Nelson re- 11, 1990, four-year parole May ceived sentence with no bar on five-year days and a concurrent sentence with no bar 218 14,1990. later on imposed December Had both sentences been on 11, 1990, May sentencing, the date of Nelson’s first Nelson would 8,1992, eligible January serving have been after (one-third) days five-year disregarding good- of his behavior and work credits. See N.J.S.A 30:4-123.51a. majority’s approach,
Under the the Parole Board would credit days against five-year Nelson’s 218 time the back end of Yds (1826 sentence, resulting days days (five-year in a sentence of 1608 - = sentence) days). Leaving good-behavior aside credits, and work the Board would then determine Nelson’s primary parole-eligibility by calculating date on that sentence one-
272 days. days, of 1608 or 536 Nelson third the reduced sentence 2,1992, serving days eligible for on June after 536 would be imposed. from date the sentence was N.J.A.C. the second 10A:71-3.2(e) (stating subsequent on parole-eligibility term subsequent from sentence sentence is calculated date concurrent began). crediting comparison, by gap
In
Nelson’s
time to the front end
days
218
subsequent
Nelson’s
his
concurrent
(one-third
against
days
directly
608
time
be credited
the
would
years)
required
five-year
five
he would
been
to serve
the
have
Thus,
only
required to
second sentence.
Nelson would be
serve
imposed, making
the
the second sentence was
390
from
date
8,
January
primary parole-eligibility
1992—the
Nelson’s
date
been had he
for both
same as it would have
been sentenced
May 11, 1990.
convictions on
sentences,
respect
subsequently-imposed
to
consecutive
With
not
Appellate
the
Division concluded that
credits should
length
aggregate
265
reduce the
an
consecutive sentence.
(1993).
191, 200-01, 625 A.2d
See also State v.
N.J.Super.
(“If
Lawlor,
N.J.Super.
(App.Div.1988)
A.2d 766
consecutively
imposes
previous
to
judge
the
the current
the
term,
previous
served
term will not be credited
the time
under
Cannel,
term.”);
Jersey
against
current
New
Criminal Code
(“If
(1992-93)
Annotated,
later
comment 4 on N.J.S.A 2C:44-5
consecutive, the
has little effect since credit
sentence is
.credit
against
against
and credit
the first sen
sentence
thing.”).
tence
to the same
amount
require
appli-
Admittedly,
provision appears
sentences,
stating
to consecutive
cation of
“(wjhether
that the
the time shall be credited
the court determines
* *
concurrently
consecutively
run
or
N.J.S.A
terms shall
2C:44-5b(2). Although
ordinarily interpret
do not
a statute
we
superfluous,
will
language
not follow
manner
renders
analysis
contrary
any
plain-meaning
when the result is
reason-
*14
legislative
able
Roig Kelsey,
view the
intent. See
v.
135 N.J.
500, 514-516,
(1994).
The time to the end of a back subsequently-imposed produces consecutive sentence a result that Legislature would not have intended: a defendant sentenced at the same time to consecutive terms for two crimes will serve more separate time than a defendant sentenced at times to illustrate, consecutive terms the same crimes. To assume a 1, 1995, crimes, January defendant is sentenced on for two receives years consecutive sentences of six on each crime. The aggregate years. defendant’s sentence would be twelve Not credits, counting good-behavior and work the defendant would be 1, 1999, eligible January serving years: after four (two years) one-third of each sentence served back-to-back. See 10A:71-3.2(d). Furthermore, N.J.AC. the defendant’s entire 31, aggregate term would end on December 2007. assumption
An alternative is that the same defendant receives separate- the same sentences for same crimes but is sentenced ly, sentencing occurring year with the second one after the first. year If applied the one time is to the back end of the subsequently-imposed six-year prior defendant’s consecutive date, primary parole-eligibility to the calculation of the as the majority contemplates, period parole ineligibili- the defendant’s ty years, on the second sentence would be one-third of five or approximately twenty Adding period months. to the two- year period required to be served on the first primary parole-eligibility September defendant’s date would be Furthermore, 1998. the defendant’s entire term would 31, 2006, year end on December one sooner than if the two Thus, imposed simultaneously. sentences had been that defen- separate dant if would serve less time he were sentenced at times if for each crime than he were sentenced for both crimes at the same time. majority supports application credits to consec- “comports
utive sentences on the basis that it with our basic ‘ understanding the cumulation of credits are a “limit on that the ”’ Richardson, su (quoting at 268 consecutive sentences.” Ante MPC, supra, § (quoting 7.06 pra, at 110 N.J. A.2d 272)). However, Legislature’s commentary recent amend 2C:44-5a(2), L.1993, 223, contradicts that N.J.S.A. see c. ment of be no overall states: “There shall assumption. That amendment multiple sentences for outer limit on the cumulation of consecutive offenses.”
Ill interpretation I can ascribe The most reasonable gap-time provision in our is one that insures that a defen- Code *15 multiple prior the exposure committed to dant’s offenses by imposition of a on offenses not be affected sentence those will timing That sentencing proceedings. of the number and the gap-time credit front purpose applying is the furthered sentence, not cred- subsequently-imposed end concurrent and of a iting subsequently-imposed time consecutive sentence. gap to a Thus, gap days of would credited appellant Booker’s time be sentence, thereby reducing to front end of his concurrent the on accordingly twenty-five-year parole disqualifier imposed the sentence; respondent days gap of time that Nelson’s 218 and five-year be credited to the front end his concurrent would sentence, reducing length of Nelson be thereby the time would sentence; Fitzpatrick’s two required appellant to serve but gap years time would not be credited to reduce length subsequent sentences. his consecutive majority gap extent concludes that time should To the judicially-imposed parole length not be credited to reduce judgment. in Howev- I concur bar on a consecutive er, judgment that it I from the to the extent reflects dissent majority’s holding that time should be credited reduce length applied should be of consecutive sentences and it the back end concurrent sentences. CLIFFORD,
For HANDLER, affirmance—Justices POLLOCK, O’HERN and GARIBALDI—5.
Concurring part; dissenting part—Justice Stein—1.