Opinion
DOCKET NO. A-4782-09T1
09-07-2012
SPILLERMAN HILL, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Christopher C. Josephson, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Koblitz.
On appeal from the New Jersey Department of Corrections.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Christopher C. Josephson, Deputy Attorney General, on the brief). PER CURIAM
In 2010, Spillerman Hill filed a pro se appeal from a final agency decision of the Department of Corrections (DOC) regarding the calculation of his sentence. The matter came before us on May 24, 2011, and in an unpublished decision, we determined that we lacked a sufficiently clear explanation of the way that Hill's sentences were calculated to permit us to verify the validity of either party's arguments. We therefore remanded the matter to permit clarification, retaining jurisdiction. Hill v. N.J. Dep't of Corr., No. A-4782-09 (App. Div. June 17, 2011). On August 5, 2011, the Office of the Public Defender filed a notice of appearance on Hill's behalf. The matter was resubmitted to us on September 1, 2011. However, because evidence demonstrated that Hill had been paroled on March 31, 2011 on both his contested juvenile and adult terms, we dismissed Hill's appeal as moot. Hill v. N.J. Dep't of Corr., No. A-4782-09 (App. Div. October 18, 2011).
Hill moved for reconsideration, contending that the maximum term that he must serve, both in custody and on parole, remained in dispute. We granted reconsideration in an order dated November 28, 2011, and because of the difficulties experienced by the parties in agreeing to a legal methodology for calculating prison time and parole, we referred the matter to the Appellate Division's Civil Appeals Settlement Program (CASP). However, we were informed on January 18, 2012 that, despite extended negotiations, the parties remained unable to agree. We therefore ordered that supplemental briefing addressing the outstanding issues be submitted to us by April 16, 2012. Having reviewed that briefing, we issue the following opinion addressing the merits of the parties' positions.
I.
We commence with background facts. Hill was born in 1965. He was first arrested on December 11, 1982, when he was still a juvenile, and charged under docket number J-3951-81. On January 4, 1983, he was sentenced to a thirty-year maximum indeterminate term. He was paroled on October 13, 1987.
On May 16, 1988, he was arrested as an adult for robbery and aggravated assault and charged under indictment 88-11-3492. On March 10, 1989, he was sentenced to sixteen years in prison with a four-year period of parole ineligibility. His parole under the juvenile disposition (J-3951) was revoked on May 24, 1989. The judgment of conviction provided that the sentences on the juvenile disposition and the first adult indictment (3492) would run concurrently. The sentence on indictment 3492 was also ordered to run concurrently with the juvenile parole violation (PV) term.
On May 12, 1992, Hill's mandatory minimum sentence under the first adult indictment (3492) expired. He was again paroled on September 27, 1994.
On March 24, 1995, Hill was arrested again and charged in a forty-eight-count indictment, number 95-7-2487, that included counts charging carjacking, robbery, and aggravated assault. He was sentenced on April 26, 1996, to twenty-five years in prison with a twelve and one-half-year parole bar. The sentencing court directed that all PV terms run consecutive to the second adult indictment (2487). Parole warrants were issued under the juvenile disposition and first adult indictment on May 3, 1996.
At a hearing on January 21, 2010, the Parole Board denied Hill parole and set a twenty-three-month Future Eligibility Term (FET) on the first adult indictment (3492).
Hill was paroled on March 31, 2011.
II.
The issue on appeal concerns the twenty-three-month FET imposed on Hill by the Parole Board on January 21, 2010, on the first adult indictment (3492). Hill contends that, by then, both of his adult sentences had already expired, and he was serving his juvenile parole violation term. Therefore, he argues that the twenty-three-month FET was unlawful, and that his case should have been before a juvenile Parole Board panel. However, our review of the record in this matter satisfies us that Hill had not yet finished his term under adult indictment 3942, and since the FET did not prolong his overall term, we affirm.
There are a few dates we can calculate with certainty, despite the parties' disagreements. The basic dates are uncontroversial; we have presented them here in a timeline, and we have also included a more comprehensive timeline in the Appendix to the opinion.
+--------------------------------------------------------------------------------------------------------+ ¦ ¦Juv. disposition (J-3951-81) ¦1st ad. indictment (88-11-3492-I) ¦2nd ad. indictment (95-7-2487-I) ¦ +--+------------------------------+-----------------------------------+----------------------------------¦ ¦12¦ ¦ ¦ ¦ ¦/ ¦ ¦ ¦ ¦ ¦11¦Arrested. ¦ ¦ ¦ ¦/ ¦ ¦ ¦ ¦ ¦82¦ ¦ ¦ ¦ +--+------------------------------+-----------------------------------+----------------------------------¦ ¦1/¦ ¦ ¦ ¦ ¦4/¦Sentenced. ¦ ¦ ¦ ¦83¦ ¦ ¦ ¦ +--+------------------------------+-----------------------------------+----------------------------------¦ ¦10¦ ¦ ¦ ¦ ¦/ ¦ ¦ ¦ ¦ ¦13¦Paroled. ¦ ¦ ¦ ¦/ ¦ ¦ ¦ ¦ ¦87¦ ¦ ¦ ¦ +--+------------------------------+-----------------------------------+----------------------------------¦ ¦5/¦ ¦ ¦ ¦ ¦16¦ ¦Arrested. ¦ ¦ ¦/ ¦ ¦ ¦ ¦ ¦88¦ ¦ ¦ ¦ +--+------------------------------+-----------------------------------+----------------------------------¦ ¦3/¦ ¦ ¦ ¦ ¦10¦ ¦Sentenced. ¦ ¦ ¦/ ¦ ¦ ¦ ¦ ¦89¦ ¦ ¦ ¦ +--+------------------------------+-----------------------------------+----------------------------------¦ ¦5/¦ ¦ ¦ ¦ ¦24¦Parole revoked. ¦ ¦ ¦ ¦/ ¦ ¦ ¦ ¦ ¦89¦ ¦ ¦ ¦ +--+------------------------------+-----------------------------------+----------------------------------¦ ¦5/¦ ¦ ¦ ¦ ¦12¦ ¦Mandatory minimum. ¦ ¦ ¦/ ¦ ¦ ¦ ¦ ¦92¦ ¦ ¦ ¦ +--+------------------------------------------------------------------+----------------------------------¦ ¦9/¦Par ¦ ¦ ¦27¦ ¦ ¦ ¦/ ¦oled. ¦ ¦ ¦94¦ ¦ ¦ +--+------------------------------------------------------------------+----------------------------------¦ ¦3/¦ ¦ ¦ ¦ ¦24¦ ¦ ¦Arrested. ¦ ¦/ ¦ ¦ ¦ ¦ ¦95¦ ¦ ¦ ¦ +--+------------------------------+-----------------------------------+----------------------------------¦ ¦4/¦ ¦ ¦ ¦ ¦26¦ ¦ ¦Sentenced. ¦ ¦/ ¦ ¦ ¦ ¦ ¦96¦ ¦ ¦ ¦ +--+------------------------------------------------------------------+----------------------------------¦ ¦5/¦Parole war ¦ ¦ ¦3/¦ ¦ ¦ ¦96¦rant issued. ¦ ¦ +--+------------------------------------------------------------------+----------------------------------¦ ¦10¦ ¦ ¦ ¦/ ¦Parole ¦ ¦ ¦16¦ ¦ ¦ ¦/ ¦revoked. ¦ ¦ ¦96¦ ¦ ¦ +--+------------------------------------------------------------------+----------------------------------¦ ¦9/¦ ¦ ¦ ¦ ¦22¦ ¦ ¦ Mandatory minimum. ¦ ¦/ ¦ ¦ ¦ ¦ ¦07¦ ¦ ¦ ¦ +--+------------------------------+-----------------------------------+----------------------------------¦ ¦7/¦ ¦ ¦ ¦ ¦12¦ ¦ ¦Maximum date. ¦ ¦/ ¦ ¦ ¦ ¦ ¦09¦ ¦ ¦ ¦ +--------------------------------------------------------------------------------------------------------+ These dates are not in dispute. The parties do dispute (1) the amount of time Hill owed on his juvenile and first adult sentences when his parole was revoked in 1996, and (2) the date when he was required to begin serving his parole violation terms.
First, we consider the issue of the maximum expiration date of Hill's thirty-year sentence under the juvenile disposition (J-3951). At the time of his first parole in 1987, his maximum date was as follows:
+----------------------------------------+ ¦1/4/1983 ¦ +----------------------------------------¦ ¦+ 30 years ¦ +----------------------------------------¦ ¦1/3/2013 ¦ +----------------------------------------¦ ¦- 27 jail credits (arrest to sentencing)¦ +----------------------------------------¦ ¦12/7/2012 ¦ +----------------------------------------¦ ¦- 234 work credits ¦ +----------------------------------------¦ ¦- 7 6 minimum custody credits ¦ +----------------------------------------¦ ¦2/1/2012 ¦ +----------------------------------------+ Hill's parole was subsequently revoked, and he resumed his juvenile sentence on May 24, 1989, when the parole warrant was issued. From his first parole revocation until he was paroled again in 1994, Hill earned additional work and minimum custody credits, resulting in a recalculation of his maximum date on the juvenile disposition (J-3951):
Work and minimum custody credits are earned pursuant to N.J.S.A. 30:4-92a. Work credits are earned at a rate of up to one day of credit per five days of "productive occupation." Minimum custody credits are earned at the rate of three days per month during the first year that an inmate is classified into minimum security, and at a rate of five days per month after the first year of minimum custody status.
+-----------------------------+ ¦2/1/2012 ¦ +-----------------------------¦ ¦- 256 work credits ¦ +-----------------------------¦ ¦- 160 minimum custody credits¦ +-----------------------------¦ ¦12/12/2010 ¦ +-----------------------------+ Thus, when Hill's parole was revoked in 1996, his maximum date on the juvenile disposition was December 12, 2010. He therefore had 5,337 days remaining on the juvenile sentence.
Next, we consider the maximum date on Hill's first adult indictment (3492), which the Parole Board correctly calculated as follows:
+-----------------------------------------+ ¦3/10/1989 ¦ +-----------------------------------------¦ ¦+ 16 years ¦ +-----------------------------------------¦ ¦3/9/2005 ¦ +-----------------------------------------¦ ¦- 399 jail credits (arrest to sentencing)¦ +-----------------------------------------¦ ¦5/14/2004 ¦ +-----------------------------------------¦ ¦- 1656 commutation credits ¦ +-----------------------------------------¦ ¦11/1/1999 ¦ +-----------------------------------------¦ ¦- 256 work credits ¦ +-----------------------------------------¦ ¦- 160 minimum custody credits ¦ +-----------------------------------------¦ ¦+ 150 lost commutation credits ¦ +-----------------------------------------¦ ¦2/8/1999 ¦ +-----------------------------------------+ Thus, when Hill's parole was revoked for the second time in 2004, his maximum date on the first adult indictment (3492) was February 8, 1999. When the parole warrant was issued on May 3, 1996, he had 1,012 days remaining on the first adult sentence.
Hill contends that he should have earned commutation credits on his 1012-day PV term under the first adult indictment. It does appear that the Parole Board at one point indicated that Hill had been granted 327 commutation credits on the first adult indictment PV term. But the law and logic definitively show that Hill was required to serve the full 1012-day balance of the sentence as of his second parole revocation. This is because his maximum date of February 8, 1999 was calculated by deducting all of the commutation credits to which Hill was entitled under the first adult indictment. Commutation credits are awarded pursuant to N.J.S.A. 30:4-140, which establishes a schedule showing how many credits an inmate will earn depending on his sentence. The statute provides that an inmate cannot earn commutation on time served between arrest and sentencing. Thus, the relevant period for calculating Hill's commutation credits under the first adult indictment is the period from his sentencing on March 10, 1989 to his unadjusted maximum date of May 14, 2004: fifteen years, two months, and four days. Under N.J.S.A. 30:4-140, an inmate receives 1,632 commutation credits for a fifteen-year jail term, plus eleven credits for each additional full month, in this case yielding twenty-two credits. The Parole Board awarded granted Hill two additional credits for the four additional days of his term, apparently prorated to the statutory schedule and then rounded up. Hill's commutation credits for his entire term under the first adult indictment thus totaled 1,632 plus twenty-two plus two, or 1,656 - the amount the Parole Board deducted at the outset, as seen above. Hill's maximum date of February 8, 1999 already took into account all of the commutation credits he could earn on that sentence. Since his PV term of 1012 days was derived from that date, he could not have been given additional commutation credits. We reject Hill's argument to the contrary.
Eleven credits per month divided by thirty days equals 0.367 credits per day. Four days in jail would thus have earned Hill approximately 1.47 credits. The Parole Board granted him two credits, seemingly reflecting a policy of rounding any fractional credits up.
In his supplementary brief, Hill points to certain Parole Board documents that give different figures for the PV terms on the juvenile disposition and first adult indictment. On November 4, 1996, the Board issued two notices of decision (NODs) indicating that it had decided to revoke Hill's parole as a result of his arrest under the second adult indictment (2487). The NODs indicated that Hill owed only 922 days on the juvenile disposition, and 4,590 days on the first adult indictment. A parole eligibility calculation prepared by the Board in June 2010 also makes use of the 922-day figures (in addition to deducting commutation time from Hill's juvenile PV term, as discussed above). The parties' briefs are of no assistance in understanding the discrepancy. However, if we "reverse engineer" the NODs, it becomes clear that the Parole Board erred in its calculations.
In its NOD on the first adult indictment, the Parole Board correctly indicated that the second parole warrant issued on May 3, 1996. For Hill's maximum date on the first adult sentence, it gave November 11, 1998. From May 3, 1996 to November 11, 1998 is 922 days. On the NOD for the juvenile disposition, the Board indicated that Hill's maximum date was June 6, 2011, and that he owed 4,590 days on that sentence. From November 8, 1998 to June 6, 2011 is also 4,590 days. Clearly, the Board simply calculated Hill's juvenile PV term by subtracting his adult maximum date from his juvenile maximum date. Or, alternatively put, the Board assumed that he would be serving both PV terms concurrently, and simply indicated how much time would remain on Hill's juvenile PV term once the adult PV term expired. In any case, it is clearly improper to interpret the NODs as indicating that Hill's entire juvenile PV term was 4,590 days.
This conclusion disposes of Hill's third argument in his supplemental brief. He argues that he "relied on the Parole Board's calculations for well over a decade," and that it is unfair to recalculate his PV terms after he considered them expired. Thus, Hill contends that the 4,590 figure for the juvenile PV term should control. But having clarified that that figure simply represents the balance of his juvenile PV term once the adult PV term expired, it becomes clear that in fact the recalculated figures benefited Hill. This is because the difference between the recalculated figures is smaller than the difference between the original figures: 5,337 minus 1,012 equals 4,325, or 265 days less than the original figure.
To summarize, as far as Hill's juvenile and adult PV terms are concerned, he owed 1,012 days on the adult PV term, and 5,337 days on the juvenile PV term. We next address when those terms began to run. Hill argues in the second point in his supplemental brief that they began to run once the twelve and one-half-year parole bar on the second adult indictment (2487) expired on September 22, 2007. The DOC argues that they began to run only when the full term under the second indictment expired on July 12, 2009. On this point, Hill appears to be correct.
The DOC argues that the juvenile PV term cannot be aggregated with an adult term; thus, it maintains, it could not commence until the expiration of the full term under the second adult indictment. It follows, according to the DOC, that since the juvenile PV term and the adult PV term were to run concurrently, both terms had to commence at the expiration of the full term under the second adult indictment. Aggregation of sentences is governed by N.J.S.A. 30:4-123.51(h), which does indeed bar aggregation of adult and juvenile terms:
When an inmate is sentenced to more than one term of imprisonment, the primary parole eligibility terms calculated pursuant to this section shall be aggregated by the board for the purpose of determining the primary parole eligibility date, except that no juvenile commitment shall be aggregated with any adult sentence.But parole violation terms are treated differently from ordinary terms. Under N.J.S.A. 30:4-123.64(d), "[a]ny period of confinement for parole violation shall be deemed to be a parole eligibility term for purposes of aggregation pursuant to [N.J.S.A. 30:4-123.51(h)]." (Emphasis added.) The statute does not distinguish between juvenile and adult PV terms; indeed, section 123.64 never mentions juvenile PV terms at all. Aggregation applies in the following fashion. "When a consecutive term is imposed, the parole eligibility term derived from the consecutive term, less county jail credits, shall be added to the parole eligibility term derived from the original term, less county jail credits, to determine the aggregate parole eligibility term." N.J.A.C. 10A:71-3.2(d). See also Curry v. N.J. State Parole Bd., 309 N.J. Super. 66, 71 (App. Div. 1998) (discussing aggregation of parole eligibility terms). Clearly, then, the juvenile and adult PV terms should have been aggregated with the second adult sentence, and commenced at the expiration of the twelve and one-half-year parole bar.
[(Emphasis added.)]
Hill also attacks the DOC for what he claims was its position that his juvenile PV term and adult PV term should run consecutively, rather than concurrently as the judgment of conviction ordered. However, the DOC never makes this argument. On the contrary, the DOC notes in its supplemental brief that "the parole violation terms are running concurrently with each other[.]"
Having considered Hill's arguments, we now calculate the expiration of Hill's PV terms, starting in both cases from the mandatory minimum date on the second adult indictment (2487). The adult PV term should have ended 1,012 days after September 22, 2007, on June 30, 2010. The juvenile PV term should end 5,337 days after September 22, 2007, on May 3, 2022.
That conclusion permits us to determine the most significant issue raised in Hill's supplemental brief: whether the DOC's imposition of a twenty-three-month FET on January 21, 2010 was unlawful. The answer is no. Since Hill's adult PV term did not end until June 30, 2010, it was proper for the Parole Board to convene an adult panel to consider Hill's case.Since his juvenile PV term (which, again, should be treated as a parole eligibility term for purposes of aggregation) would not have expired until May 3, 2022, the twenty-three-month FET did not in any way prolong his sentence. Thus, there was nothing erroneous about the Parole Board's action.
Nor does the dispute over whether Hill owed 922 or 1,012 days on his first adult term affect this outcome. Assuming he was required to serve only 922 days after September 22, 2007, his term would have ended on April 1, 2010, still months after the Parole Board's meeting on January 21 of that year.
--------
We therefore affirm the Parole Board's establishment of a twenty-three-month FET on January 21, 2010, as Hill was still clearly serving his adult PV term. However, we note our prior conclusion that a juvenile PV term must be treated as a parole eligibility term for purposes of aggregation. N.J.S.A. 30:4-123.64(d). We also note our conclusion that the juvenile and adult PV terms should have been aggregated with the parole eligibility term under the second adult indictment (2487), and thus commenced on September 22, 2007. We thus remand the matter to the DOC with the instruction that it recalculate Hill's maximum date accordingly, taking into account any additional credits or demerits he may have accrued during the long pendency of this appeal.
Affirmed in part and remanded in part. Jurisdiction is not retained.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
APPENDIX: TIMELINE
+--------------------------------------------------------------------------------------------------------+ ¦ ¦Juv. disposition (J-3951-81) ¦1st ad. indictment (88-11-3492-I) ¦2nd ad. indictment (95-7-2487-I) ¦ +--+------------------------------+-----------------------------------+----------------------------------¦ ¦12¦ ¦ ¦ ¦ ¦/ ¦ ¦ ¦ ¦ ¦11¦Arrested. ¦ ¦ ¦ ¦/ ¦ ¦ ¦ ¦ ¦82¦ ¦ ¦ ¦ +--+------------------------------+-----------------------------------+----------------------------------¦ ¦1/¦ ¦ ¦ ¦ ¦4/¦Sentenced. ¦ ¦ ¦ ¦83¦ ¦ ¦ ¦ +--+------------------------------+-----------------------------------+----------------------------------¦ ¦10¦ ¦ ¦ ¦ ¦/ ¦ ¦ ¦ ¦ ¦13¦Paroled. ¦ ¦ ¦ ¦/ ¦ ¦ ¦ ¦ ¦87¦ ¦ ¦ ¦ +--+------------------------------+-----------------------------------+----------------------------------¦ ¦5/¦ ¦ ¦ ¦ ¦16¦ ¦Arrested. ¦ ¦ ¦/ ¦ ¦ ¦ ¦ ¦88¦ ¦ ¦ ¦ +--+------------------------------+-----------------------------------+----------------------------------¦ ¦3/¦ ¦ ¦ ¦ ¦10¦ ¦Sentenced. ¦ ¦ ¦/ ¦ ¦ ¦ ¦ ¦89¦ ¦ ¦ ¦ +--+------------------------------+-----------------------------------+----------------------------------¦ ¦5/¦ ¦ ¦ ¦ ¦24¦Parole revoked. ¦ ¦ ¦ ¦/ ¦ ¦ ¦ ¦ ¦89¦ ¦ ¦ ¦ +--+------------------------------+-----------------------------------+----------------------------------¦ ¦5/¦ ¦ ¦ ¦ ¦12¦ ¦Mandatory minimum. ¦ ¦ ¦/ ¦ ¦ ¦ ¦ ¦92¦ ¦ ¦ ¦ +--+------------------------------------------------------------------+----------------------------------¦ ¦9/¦Par ¦ ¦ ¦27¦ ¦ ¦ ¦/ ¦oled. ¦ ¦ ¦94¦ ¦ ¦ +--+------------------------------------------------------------------+----------------------------------¦ ¦3/¦ ¦ ¦ ¦ ¦24¦ ¦ ¦Arrested. ¦ ¦/ ¦ ¦ ¦ ¦ ¦95¦ ¦ ¦ ¦ +--+------------------------------+-----------------------------------+----------------------------------¦ ¦4/¦ ¦ ¦ ¦ ¦26¦ ¦ ¦Sentenced. ¦ ¦/ ¦ ¦ ¦ ¦ ¦96¦ ¦ ¦ ¦ +--+------------------------------------------------------------------+----------------------------------¦ ¦5/¦Parole war ¦ ¦ ¦3/¦ ¦ ¦ ¦96¦rant issued. ¦ ¦ +--+------------------------------------------------------------------+----------------------------------¦ ¦10¦ ¦ ¦ ¦/ ¦Parole ¦ ¦ ¦16¦ ¦ ¦ ¦/ ¦revoked. ¦ ¦ ¦96¦ ¦ ¦ +--+------------------------------------------------------------------+----------------------------------¦ ¦9/¦ ¦ ¦ ¦ ¦22¦ ¦ ¦Mandatory minimum. ¦ ¦/ ¦ ¦ ¦ ¦ ¦07¦ ¦ ¦ ¦ +--+------------------------------+-----------------------------------+----------------------------------¦ ¦7/¦ ¦ ¦ ¦ ¦12¦ ¦ ¦Maximum date. ¦ ¦/ ¦ ¦ ¦ ¦ ¦09¦ ¦ ¦ ¦ +--+------------------------------------------------------------------+----------------------------------¦ ¦1/¦Board set ¦ ¦ ¦21¦ ¦ ¦ ¦/ ¦2 3-month FET. ¦ ¦ ¦10¦ ¦ ¦ +--+------------------------------------------------------------------+----------------------------------¦ ¦6/¦ ¦ ¦ ¦ ¦30¦ ¦PV term expired. ¦ ¦ ¦/ ¦ ¦ ¦ ¦ ¦10¦ ¦ ¦ ¦ +--+------------------------------+-----------------------------------+----------------------------------¦ ¦5/¦ ¦ ¦ ¦ ¦3/¦PV term expires. ¦ ¦ ¦ ¦22¦ ¦ ¦ ¦ +--------------------------------------------------------------------------------------------------------+