Opinion
DOCKET NO. A-2686-14T2
05-13-2016
DONTE GREEN, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Donte Green, appellant pro se. Robert Lougy, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Adam Robert Gibbons, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Ostrer. On appeal from the New Jersey Department of Corrections. Donte Green, appellant pro se. Robert Lougy, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Adam Robert Gibbons, Deputy Attorney General, on the brief). PER CURIAM
Donte Green appeals from a decision of the Department of Corrections restoring what he contends was an insufficient number of commutation credits after he remained charge-free for one year. He also seeks review of the December 11, 2013 disciplinary decision that resulted in the loss of credits. Green contends that the alleged miscalculation of commutation credits delayed his release on parole supervision. He therefore seeks a reduction of his period of parole supervision. Having considered Green's arguments in light of the record and applicable principles of law, we affirm.
On January 20, 2006, Green was sentenced to an aggregate fourteen-year term upon conviction of first-degree robbery, N.J.S.A. 2C:15-1, and other offenses. Pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, he was required to serve at least eighty-five percent of his sentence before his release on parole supervision, which was to last for five years.
On December 11, 2013, Green was found guilty of five asterisk disciplinary infractions and sanctioned with losing 1825 days of commutation credit (365 days for each infraction). At the time, Green had accumulated only 197.5 days of commutation credit, having earned and lost credits during his incarceration. As a result of the sanction, his commutation credits were reduced to zero.
Green contends his max-out date was delayed 380 days after this disciplinary decision, not the 197.5 days. The Department explained it discovered that it had failed to factor in Green's loss of 181.75 days of commutation credits arising out of a 2009 disciplinary decision. The Department later restored seventy-five percent of those credits forfeited in 2009, as a result of infraction-free conduct during the three years that followed.
After remaining free of disciplinary infractions for a year, Green requested restoration, pursuant to N.J.A.C. 10A:9-5.5, of 456.25 credits, twenty-five percent of the 1825. The Department instead restored 49.38 days, twenty-five percent of the 197.5 that were actually lost.
In January 2015, the Parole Board denied Green release on parole and established a twenty-four-month future eligibility term. He was subsequently released on parole on February 14, 2016.
Green raises the following points on appeal.
POINT I
IN THEIR MISINTERPRETATION OF THE NEW JERSEY ADMINISTRATIVE CODE 10A THE DECISION OF THE NEW JERSEY DEPARTMENT OF CORRECTIONS TO RESTORE A SMALLER PORTION OF COMMUTATION TIME THAN WHAT SHOULD HAVE BEEN RESTORED BASED ON WHAT WAS SANCTIONED IS ILLEGAL AND SHOULD BE AMENDED TO REFLECT THE PROPORTION OF DAYS BASED ON PROCEDURAL DUE PROCESS AS STATED IN NEW JERSEY ADMINISTRATIVE CODE 10A.
POINT II
THE NEW JERSEY DEPARTMENT OF CORRECTIONS VIOLATED APPELLANT'S RIGHT TO EQUAL PROTECTION OF THE LAW WHEN THEY FAILED TO RELEASE APPELLANT AFTER THE COMPLETION OF THE 85% PORTION OF APPELLANT'S IMPOSED SENTENCE TO THE PAROLE SUPERVISION PORTION OF THE IMPOSED SENTENCE AS MANDATED BY 2C:43-7.2(a) & 2C:43-7.2(c). SINCE APPELLANT WAS NOT RELEASED ON THE EXPIRATION OF THE 85% PORTION ON 3-3-2015 CREDIT MUST BE AWARDED BACK TO HIS MANDATORY RELEASE
DATE TO THE COMMUNITY SUPERVISION PORTION OF HIS SENTENCE.
We note that Green did not refer to the Parole Board order in his notice of appeal. However, we choose to address it, notwithstanding his violation of Rule 2:5-1(f)(3)(A).
Our standard of review is well-settled. We will disturb a decision of the Department only if the decision is "arbitrary, capricious or unreasonable," or is unsupported "by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also Jenkins v. N.J. Dep't of Corr., 412 N.J. Super. 243, 259 (App. Div. 2010). In determining whether an agency action is arbitrary, capricious, or unreasonable, we examine, among other things, "whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law . . . ." In re Carter, 191 N.J. 474, 482 (2007) (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).
We give some deference to an agency's interpretation of regulations that are "within its implementing and enforcing responsibility," Utley v. Bd. of Review, 194 N.J. 534, 551 (2008) (internal citation omitted), although we are "in no way bound by the agency's . . . determination of a strictly legal issue." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973).
Applying this standard of review, we reject Green's contention that he was entitled to restoration of 456.25 days of commutation credit. Department regulations provide for restoration of lost commutation time:
Up to 75 percent of the forfeited commutation credits may be restored over the three year period following the incident which resulted in the loss of commutation credits. . . . Credits shall be restored at the rate of 25 percent for each year the inmate is in custody and is free of any disciplinary charges with a guilty finding.Although Green's sanction in 2013 was the loss of 1825 days of commutation credit, he actually forfeited only 197.5, because that was all he had accumulated at that point. We therefore discern no error in the Department's determination, pursuant to its interpretation of its regulation, that Green was entitled to restoration of only 49.38 days of commutation credit (twenty-five percent of 197.5) for his infraction-free conduct between 2013 and 2014. For the same reasons, we reject Green's argument that he is entitled to a reduced parole supervision period, as this is based on his contention that the calculation of his restored credits delayed his release on parole supervision.
[N. J.A.C. 10A:9-5.5(d)(1).]
Green also argues that had he known he would not be eligible for restoration of 456.25 days of commutation credits, he would have timely appealed from the 2013 disciplinary decision. Although Green listed the 2013 disciplinary decision in his notice of appeal, he does not directly address claimed errors in the disciplinary decision. In any event, an appeal from the 2013 decision is untimely. R. 2:4-1(b). --------
Green also contends that he was entitled to release on parole supervision as a matter of law upon completion of eighty-five percent of his sentence. He seeks relief in the form of a reduced period of parole supervision.
Green misreads NERA. The statute requires that a defendant serve a minimum term equal to eighty-five percent of his sentence before he is eligible for parole. See N.J.S.A. 2C:43-7.2(a) ("A court imposing a sentence of incarceration for a crime of the first or second degree enumerated in subsection d. of this section shall fix a minimum term of 85% of the sentence imposed, during which the defendant shall not be eligible for parole."). We recognize that most inmates max out upon completing eighty-five percent of the term and are automatically released, based on their accumulated commutation and work credits. See State v. Hernandez, 208 N.J. 24, 40 (2011); N.J.S.A. 30:4-140. However, a NERA defendant is only eligible, and not entitled to, release after serving eighty-five percent of his sentence. See State v. Freudenberger, 358 N.J. Super. 162, 169 (App. Div. 2003). If the inmate forfeits the credits available to him over the course of serving his sentence, his max-out date may occur, as it did in Green's case, a period of time after completion of eighty-five percent of the term.
To the extent not addressed, Green's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION