                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-0751-14T1



STATE OF NEW JERSEY,
                                       APPROVED FOR PUBLICATION

     Plaintiff-Respondent,                September 7, 2016

v.                                       APPELLATE DIVISION

JAMES BOYKINS,

     Defendant-Appellant.
___________________________

         Argued February 8, 2016 – Decided September 7, 2016

         Before Judges Sabatino, Accurso and Suter.1

         On appeal from Superior Court of New Jersey,
         Law Division, Ocean County, Indictment No.
         90-04-0519.

         Alison Perrone, Designated Counsel, argued
         the cause for appellant (Joseph E. Krakora,
         Public Defender, attorney; Ms. Perrone, on
         the brief).

         Nicholas Norcia, Assistant Prosecutor,
         argued the cause for respondent (Joseph D.
         Coronato, Ocean County Prosecutor, attorney;
         Samuel Marzarella, Supervising Assistant
         Prosecutor, of counsel; Mr. Norcia, on the
         brief).


1
  Judge Suter did not participate in oral argument. The parties,
however, have consented to her participation in the decision.
R. 2:13-2(b).
    The opinion of the court was delivered by

ACCURSO, J.A.D.

    Defendant James Boykins is a career criminal and a serial

rapist.    Between the ages of twenty and thirty-five, he was

convicted in the states of New Jersey, Maryland, and California

and in the District of Columbia on charges of kidnapping,

aggravated sexual assault, assault with a deadly weapon,

burglary and drug distribution.       Our focus is on the extended-

term sentences defendant received for two of these convictions

in New Jersey under N.J.S.A. 2C:44-5.

    Specifically, we consider whether defendant, who received a

second extended-term sentence for a crime he committed while on

bail awaiting trial on the offense for which he received his

first extended-term sentence, was "in custody" within the

meaning of N.J.S.A. 2C:44-5b when he committed the second

offense.    Because we conclude defendant was "in custody" within

the meaning of N.J.S.A. 2C:44-5b when he committed the second

offense while on bail awaiting trial, we reject his claim that

his second extended term constituted an illegal sentence.

    The circumstances of the convictions are as follows.        In

February 1990, defendant was serving a three-year term of

probation imposed in September 1987 on an assault conviction out

of the District of Columbia and a three-year term of probation




                                  2                           A-0751-14T1
imposed in September 1989 on a conviction for distribution of

cocaine in New Jersey.   He was also out on bail awaiting trial

on Ocean County Indictment Number 89-02-0153 (Indictment I), on

charges of kidnapping, aggravated sexual assault and related

offenses.   Two days before jury selection on Indictment I,

defendant kidnapped and raped a young woman walking to a bus

stop in Lakewood.

     Defendant was convicted by the jury on all counts of

Indictment I.   The court granted the State's motion for a

discretionary extended term and sentenced defendant to life in

prison with a twenty-five-year period of parole ineligibility

for kidnapping, and to a concurrent twenty-year sentence for

aggravated sexual assault into which it merged the remaining

convictions.2

     During the course of trial on Indictment I, defendant was

arrested at the courthouse for the Lakewood rape on charges that

would form the basis of Ocean County Indictment Number 90-04-

0519 (Indictment II).    He was convicted by a jury of kidnapping

and two counts of criminal sexual contact on Indictment II in

1993 and sentenced to another discretionary extended term of

2
  We affirmed defendant's conviction and sentence on Indictment I
in an unreported opinion, State v. Boykins, No. A-0943-90 (App.
Div. Apr. 2, 1993), and the Supreme Court denied certification,
State v. Boykins, 134 N.J. 479 (1993).




                                 3                           A-0751-14T1
life imprisonment with a twenty-five-year period of parole

ineligibility on the kidnapping count consecutive to the

sentence he was then serving arising out of Indictment I.3

     In 2011, following our decision in State v. Pennington, 418

N.J. Super. 548, 557-58 (App. Div. 2011) (holding that a second

extended term cannot be imposed on an offense occurring before

the imposition of the first extended term under N.J.S.A. 2C:44-

5b(1)), certif. denied, 209 N.J. 595 (2012), defendant filed his

third application for post-conviction relief (PCR),4 contending

his extended-term sentence on Indictment II was illegal.     The

Law Division denied the application finding it time-barred and

the sentence imposed not illegal.

     By the time the matter was before us for review, the

Supreme Court had decided State v. Hudson, 209 N.J. 513, 517

(2012), holding the defendant in that case could not be


3
  We affirmed defendant's conviction and sentence on Indictment
II in an unreported opinion, without prejudice to an application
for post-conviction relief on the grounds of ineffective
assistance and a motion to the sentencing court for gap-time
credit. State v. Boykins, No. A-5147-93 (App. Div. Nov. 15,
1996). The record does not reveal a petition for certification
from that decision.
4
  Defendant's first two PCR applications alleging ineffective
assistance had already been denied and affirmed on appeal.
State v. Boykins, No. A-4872-97 (App. Div. Nov. 10, 1999),
certif. denied, 163 N.J. 76 (2000); State v. Boykins, No. A-
3727-03 (App. Div. Feb. 6, 2006), certif. denied, 188 N.J. 356
(2006).



                                4                           A-0751-14T1
sentenced to a second extended-term sentence for an offense

committed prior to the imposition of the extended-term sentence

he was then serving in accordance with the prohibitions of

N.J.S.A. 2C:44-5b(1).   Accordingly, we remanded the matter to

the Law Division to consider whether the holding in Hudson

should be applied retroactively and, if so, whether defendant's

sentence on Indictment II is illegal.   State v. Boykins, No. A-

5428-11 (App. Div. Dec. 19, 2013).

    The Law Division on remand again denied defendant's

application.   In a written opinion, the court determined that

Hudson was "distinguishable both factually and conceptually from

the facts in this case."   The court reasoned that defendant, who

was on probation and out on bail when he committed the crimes

charged in Indictment II, was "in custody" within the meaning of

N.J.S.A. 2C:44-5b, and thus was excepted by subsection b(1) of

the statute from Hudson's holding.   Because the court found

Hudson distinguishable, it did not address the issue of whether

the case should be given retroactive effect.

    Defendant appeals, raising the following issues.

         POINT I

         N.J.S.A. 2C:44-5 PROHIBITS THE IMPOSITION OF
         MULTIPLE EXTENDED TERMS IN THIS CASE.




                                5                         A-0751-14T1
          POINT II

          THE COURT'S DECISION IN HUDSON SHOULD BE
          APPLIED RETROACTIVELY TO DEFENDANT.

     Since our remand in this matter, we have in an unrelated

case held that Hudson did not announce a new rule of law, and

thus the holding in Hudson must be "construed as 'one that has

always applied.'"    State v. Bull, No. A-5233-12 (App. Div. Apr.

7, 2015) (slip op. at 7) (quoting State v. Feal, 194 N.J. 293,

307 (2008)), certif. granted, 224 N.J. 124 (2016).5   Although we

continue to be of the opinion that retroactive application of

the Court's interpretation of N.J.S.A. 2C:44-5b in Hudson is

required, the Supreme Court is poised to resolve that question

in Bull, and we need not analyze the issue again here.

     For our purposes, it is sufficient to proceed as if Hudson

applies to defendant's conviction and sentence on Indictment II,

and consider instead whether the fact that he was on probation

and out on bail when he committed those crimes renders the

offenses ones "committed while in custody," and thus not subject

to the statute's prohibition against multiple extended terms.

5
  We are, of course, mindful of Rule 1:36-3, which provides that
"[n]o unpublished opinion shall constitute precedent or be
binding upon any court" and should not be cited by any court
"except to the extent required by res judicata, collateral
estoppel, the single controversy doctrine or any other similar
principle of law." In keeping with the rule, we cite the case
only to advise that the issue of Hudson's retroactivity
defendant raises here is now pending before the Supreme Court.



                                 6                         A-0751-14T1
Having considered defendant's arguments to the contrary, we

conclude defendant's crimes on Indictment II were committed

while he was "in custody" as that term was understood by the

drafters of N.J.S.A. 2C:44-5b, and therefore that his second

extended-term sentence was not illegal.   We accordingly affirm

the denial of his petition.

    Because the only issue on this appeal is one of statutory

interpretation of N.J.S.A. 2C:44-5 and its application to

defendant's sentence, our review is plenary.   See Hudson, supra,

209 N.J. at 529.   Subsections a and b of N.J.S.A. 2C:44-5

provide:

           a. Sentences of imprisonment for more than
           one offense. When multiple sentences of
           imprisonment are imposed on a defendant for
           more than one offense, including an offense
           for which a previous suspended sentence or
           sentence of probation has been revoked, such
           multiple sentences shall run concurrently or
           consecutively as the court determines at the
           time of sentence, except that:

           (1) The aggregate of consecutive terms to a
           county institution shall not exceed 18
           months; and

           (2) Not more than one sentence for an
           extended term shall be imposed.

           There shall be no overall outer limit on the
           cumulation of consecutive sentences for
           multiple offenses.

           b. Sentences of imprisonment imposed at
           different times. When a defendant who has
           previously been sentenced to imprisonment is



                                7                            A-0751-14T1
           subsequently sentenced to another term for
           an offense committed prior to the former
           sentence, other than an offense committed
           while in custody:

           (1) The multiple sentences imposed shall so
           far as possible conform to subsection a. of
           this section; and

           (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 terms or
           terms remaining to be served; and

           (3) When a new sentence is imposed on a
           prisoner who is on parole, the balance of
           the parole term on the former sentence shall
           not be deemed to run during the period of
           the new imprisonment unless the court
           determines otherwise at the time of
           sentencing.

       Thus as the Court explained in Hudson, "[w]ith enactment of

N.J.S.A. 2C:44-5, the Legislature has woven a piece on how a

sentence should be configured for a defendant confronted with

the possibility of serving multiple sentences."    209 N.J. at

530.   N.J.S.A. 2C:44-5a "addresses the sentencing of a defendant

on multiple offenses in a single sentencing proceeding, and

states, with unmistakable clarity, that there shall be imposed

'not more than one sentence for an extended term' when

sentencing a defendant for more than one offense."      Ibid.

N.J.S.A. 2C:44-5b "on the other hand, instructs courts about

sentences of imprisonment that are imposed at different times,"



                                 8                              A-0751-14T1
and specifically addresses "the sentencing of a defendant 'who

has previously been sentenced to imprisonment,' and who must be

sentenced 'for an offense committed prior to the former

sentence.'"   Id. at 531.   Subsection b commands in equally clear

language that "'for an offense committed prior to the former

sentence other than an offense committed while in custody,'"

that the "prohibition against multiple extended-term sentences

applies, as far as it is possible to do so."    Id. at 531, 535.

     Defendant raises an issue not addressed in Hudson.   He

contends the trial court erred in finding he committed the

crimes giving rise to Indictment II "while in custody," arguing

that "a defendant on bail has been released from custody."6    He


6
  It is perhaps more accurate to say that the effect of admitting
a defendant to bail "is to transfer custody to his 'bail' and at
the same time keep the accused constructively in the custody of
the court while the charge is pending." State v. Rice, 137 N.J.
Super. 593, 599-600 (Law Div. 1975), aff'd o.b., 148 N.J. Super.
145 (App. Div. 1977). Black's defines custody as "[t]he care
and control of a thing or person for inspection, preservation,
or security," Black's Law Dictionary 467 (10th ed. 2014), and
notes that "constructive custody" is the "[c]ustody of a person
(such as a parolee or probationer) whose freedom is controlled
by legal authority but who is not under direct physical
control." Ibid.

     The general law of bail and suretyship is in accord. See,
e.g., 8A Am. Jur. 2d Bail and Recognizance § 1, Jack K. Levin
and Lucas Martin (May 2014) ("While released on bail prior to
trial, a defendant is still considered to be within the
constructive custody of the law."); see also Albright v. Oliver,
510 U.S. 266, 277-78, 114 S. Ct. 807, 815, 127 L. Ed. 2d 114,
126 (1994) (Ginsburg, J., concurring) ("At common law, an
                                                      (continued)


                                 9                         A-0751-14T1
contends it is precisely because a defendant on bail or

probation is not in custody that no jail credit is awarded for

such time, relying on State v. Towey, 114 N.J. 69, 85-86 (1989)

(rejecting the defendant's contention that she was entitled to

jail credits during time spent in a psychiatric hospital as

condition of bail because she was not "in custody" within the

meaning of Rule 3:21-8), and State v. Mirakaj, 268 N.J. Super.

48, 52-53 (App. Div. 1993) (rejecting that the defendant's stay

in a convent as a condition of bail was the equivalent of being

in jail or a state hospital for purposes of awarding jail credit

under Rule 3:21-8).     At oral argument, defendant stressed that

considering a person who is obviously at liberty, albeit on

probation or on bail, as "in custody" is contrary to the term's

conventional meaning.

    Although there is no disputing that defendant would not be

entitled to jail credit for the time he spent on probation or on

bail prior to his trial on Indictment II, see State v.


(continued)
arrested person's seizure was deemed to continue even after
release from official custody. See, e.g., 2 M. Hale, Pleas of
the Crown 124 ('he that is bailed, is in supposition of law
still in custody, and the parties that take him to bail are in
law his keepers'); 4 W. Blackstone, Commentaries 297 (bail in
both civil and criminal cases is 'a delivery or bailment, of a
person to his sureties, . . . he being supposed to continue in
their friendly custody, instead of going to gaol')").




                                  10                        A-0751-14T1
Hernandez, 208 N.J. 24, 36-37 (2011), we do not find that

dispositive of the question before us as N.J.S.A. 2C:44-5

addresses itself to gap-time credit, not jail credit.

    Jail credit is governed by court rule, not by statute.          See

id. at 36-39 (explaining the difference between jail credits and

gap-time credits); see also State v. Rippy, 431 N.J. Super. 338,

347-48 (App. Div. 2013) (noting jail credit is governed by Rule

3:21-8, whereas gap-time credit is governed by statute,

specifically, N.J.S.A. 2C:44-5b), certif. denied, 217 N.J. 284

(2014).    Just because the phrase "in custody" appears in both

N.J.S.A. 2C:44-5b and in Rule 3:21-8 does not mean it means the

same thing in both texts.     See State v. DiCarlo, 67 N.J. 321,

325 (1975) (noting "the adventitious occurrence of like or

similar phrases, or even of similar subject matter, in laws

enacted for wholly different ends will normally not justify

applying the rule" of in pari materia as an aid in statutory

construction).     Indeed, good reason exists to believe the

Legislature employed the phrase in a limited context for a

specific purpose, regardless of what might be the conventional

notion of "custody."

    N.J.S.A. 2C:44-5 is based on Model Penal Code (MPC) section

7.06.     State v. Robinson, 217 N.J. 594, 606 (2014); Cannel, New

Jersey Criminal Code Annotated, comment 1 on N.J.S.A. 2C:44-5




                                  11                           A-0751-14T1
(2015).    The Supreme Court has guided that "[w]hen a provision

of the Code is modeled after the MPC, it is appropriate to

consider the MPC and any commentary to interpret the intent of

the statutory language."7   Ibid.     Although the Court in Hudson

cautioned that New Jersey's rejection of the MPC approach

imposing an outer limit on the accumulation of consecutive

sentences limits the utility of the comments to MPC section 7.06

in that regard, see Hudson, supra, 209 N.J. at 530 n.9, the

Court has since resorted to the commentary to shed light on

other parts of the statute.    See Robinson, supra, 217 N.J. at

606.

       Subsection b of N.J.S.A. 2C:44-5, including its exception

for offenses committed "while in custody" is virtually identical

to subsection (2) of MPC 7.06.      The only difference is New

Jersey's use of the word "offense" where the MPC uses "crime."8

       The comments to MPC section 7.06 explain that "[a]s

indicated by the phrase 'other than a crime committed while in

7
  The Supreme Court has observed that "[t]he New Jersey Criminal
Law Revision Commission's commentary on this section provides
little guidance." Robinson, supra, 217 N.J. at 606 n.4 (citing
II Final Report of the New Jersey Criminal Law Revision
Commission, The New Jersey Penal Code: Commentary § 2C:44-5 at
335 (1971)).
8
  See N.J.S.A. 2C:1-14k (defining offense to include crimes,
disorderly persons offenses and petty disorderly persons
offenses "unless a particular section in this code is intended
to apply to less than all three").



                                 12                          A-0751-14T1
custody'" subsection (2) "does not cover offenses committed

while the defendant is in custody preparatory to either the

first or the second trial."   Model Penal Code § 7.06, commentary

at 278-79.   A footnote makes clear that "[c]ustody for this

purpose would also include a defendant released on recognizance

or on bail."   Id. at 279 n.15 (emphasis added).   The comment

continues:

         Subsection (2) assures that when an offender
         is apprehended for multiple offenses he will
         not be afforded disparate treatment
         depending upon the number or order of his
         trials. At the same time, the quoted phrase
         ["other than a crime committed while in
         custody"] prevents insulation from
         additional sentences for offenses committed
         during custody after the time of
         apprehension, with the dangerous immunity
         that this would imply.

         [Id. at 279.]

    The MPC Commentary on subsection (2) of 7.06 identifies the

purpose behind the provision and provides meaning for the phrase

"while in custody."   Both speak directly to defendant's

situation.   Subsection b guarantees a defendant that the timing

of his trials for multiple charges will have as little bearing

as possible on his exposure to multiple extended-term sentences,

thereby thwarting a prosecutor who might attempt to manipulate

the sequence of trials to maximize the length of the defendant's

sentences.   See State v. L.H., 206 N.J. 528, 548 (2011).




                                13                          A-0751-14T1
Because defendant committed the kidnapping and rape charged in

Indictment II two days before jury selection was scheduled to

begin in his trial on Indictment I, the risk for such

manipulation here was minimal, if not non-existent.

    But the subsection also insures that the protection from

multiple extended-term sentences is not afforded to insulate a

defendant from an otherwise applicable extended-term sentence

for an offense he commits while on bail awaiting trial for the

first offense.    To do otherwise would be akin to allowing a

defendant a "free crime," at least with respect to extended-term

exposure.    See State v. Yarbough, 100 N.J. 627, 643 (1985),

cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308

(1986).   The subsection thus prevents both the State and the

defendant from thwarting the statutory purpose of insuring

sentencing uniformity and fairness.

    Interpreting the "in custody" language in this manner is in

keeping with traditional notions of a person's status while on

bail awaiting trial, see supra, note 6, and is also consistent

with the 1983 amendment to N.J.S.A. 2C:44-5, which added

subsection h, creating a presumption that a term of imprisonment

            for an offense committed while released,
            with or without bail, pending disposition of
            a previous offense . . . shall run
            consecutively to any sentence of
            imprisonment imposed for the previous
            offense, unless the court in consideration



                                 14                        A-0751-14T1
            of the character and conditions of the
            defendant, finds that imposition of
            consecutive sentences would be a serious
            injustice which overrides the need to deter
            such conduct by others.

            [N.J.S.A. 2C:44-5h.]

The Court has noted that "the objective of the 1983 amendments

was to stiffen penalties for defendants who commit crimes while

released on probation, parole, or bail."    State v. Sutton, 132

N.J. 471, 482 (1993).9

     Having considered the statutory language and available

legislative history, we are convinced that defendant's second

extended-term sentence for kidnapping arising out of Indictment

II, committed while he was on probation and out on bail awaiting

trial on Indictment I was not an illegal sentence under N.J.S.A.

2C:44-5b.    The MPC Commentary is persuasive authority which

defendant cannot counter.    The meaning of "in custody" as used

in Rule 3:21-8, which was enacted at a different time for a

different purpose by a different branch of government, offers




9
  In 1997 after defendant's crimes, the Legislature adopted
N.J.S.A. 2C:44-5.1, which, among other things, makes the
imposition of an extended-term sentence mandatory when a
defendant is being sentenced following a conviction for any one
of several enumerated crimes, including kidnapping, if "the
defendant was released on bail or on his own recognizance for
one of the enumerated crimes and was convicted of that crime."
N.J.S.A. 2C:44-5.1a.



                                   15                      A-0751-14T1
nothing to illuminate the Legislature's employment of the term

in N.J.S.A. 2C:44-5.

    Affirmed.




                               16                        A-0751-14T1
