Opinion
DOCKET NO. A-5955-11T4
11-27-2013
JOHN MCGILL, Appellant, v. NEW JERSEY STATE PAROLE BOARD, Respondent.
John McGill, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Shirley P. Dickstein, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Harris and Guadagno.
On appeal from the New Jersey State Parole Board.
John McGill, appellant pro se.
John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Shirley P. Dickstein, Deputy Attorney General, on the brief). PER CURIAM
John McGill, an inmate at East Jersey State Prison, appeals from the determination by the New Jersey State Parole Board (Board), calculating his primary parole eligibility date (PED) and the application of the loss of commutation time credits to his future eligibility term (FET). For the reasons that follow we affirm.
I.
In 1982, McGill was sentenced to a five-year term of imprisonment for theft by deception and to a consecutive eighteen-month term for forgery, for a total term of six years and six months. In 1983, McGill was found guilty of murder and was sentenced to a term of life imprisonment with twenty-five years to be served before parole eligibility. He was given 205 days of jail credits and the sentence was to run consecutively to the 1982 sentence.
After McGill requested that his PED date be determined, th Board calculated his earliest eligibility date for parole as April 21, 2009. He appealed, claiming that his parole ineligibility term cannot exceed twenty-five years, the minimum ineligibility term under the murder conviction. We affirmed, finding:
In addition to his life sentence, McGill was previously sentenced to a six and one-half year term, which comprised a five year sentence that began on December 23, 1982 and an eighteen-month consecutive sentence which began on June 12, 1984. As to those sentences, McGill's parole eligibility date was November 12, 1984, calculated by taking one-third of each sentence and adding work credits.
McGill's November 10, 1983 [sentence] of a life term within a twenty-five year
parole ineligibility was imposed by the sentencing judge to run consecutively to the six and one-half year sentence previously imposed, and he was awarded 205 days of jail credit on that judgment of conviction.
. . . .
Under [N.J.A.C. 10A:71-3.2(d)] the calculation for parole eligibility begins by determining the parole eligibility term on the original term, which is the initial six and one-half year sentence, and the parole eligibility date for the 1982 sentence was November 12, 1984 as indicated. Since the sentence on [McGill's] murder conviction was consecutive to the 1982 sentences, the mandatory twenty-five year minimum term began to run on November 12, 1984. Therefore, the State Parole Board was correct in its calculation of McGill's parole eligibility date to be April 21, 2009.
[McGill v. Dep't of Corr., No. A-6645-05 (App. Div. Jan. 15, 2008) (slip op. at 3-4).]
A two-member panel of the Board denied McGill's first application for parole on December 4, 2008, and referred the matter to a three-member panel of the Board to establish an FET. See N.J.A.C. 10A:71-3.21(d)(1). On April 15, 2009, the three-member panel issued its notice of decision setting a ten-year FET for McGill. The PED calculation indicated that McGill was entitled to 996 days of commutation credit to reduce the ten-year FET.
Commutation credits, or "good time" credits, are granted for "continuous orderly deportment," and are awarded for every year or fractional part of a year of an inmate's sentence. N.J.S.A. 30:4-140.
On November 5, 2009, McGill was found guilty of institutional infractions and sanctioned to, inter alia, the loss of 365 days of commutation credit. The Board adjusted McGill's FET to account for this sanction as follows: McGill had a balance of ninety-one days of commutation credit on the twenty-month parole eligibility term on the five-year (theft by deception) sentence, and forty-four days of commutation credit on the six-month parole eligibility term on the eighteen-month (forgery) sentence. The balances were combined (135 days) and deducted from the 365-day sanction, leaving a balance of 230 days, which was deducted from the 996 days applied to the FET.
McGill challenged this determination and on June 26, 2012, the Board rejected his appeal, finding it moot in light of our prior affirmance of the Board's calculation of McGill's PED.
On appeal, McGill argues:
POINT I
ACTING WITHOUT AUTHORITY, THE PAROLE BOARD ARBITRARILY REMOVED 365 DAYS COMMUTATION TIME FROM THE APPELLANT'S FUTURE ELIGIBILITY TERM.
POINT II
THE BOARD'S PRACTICE OF NOT APPLYING COMMUTATION TIME TO REDUCE THE PAROLE ELIGIBILITY TERM ON AGGREGATED CONSECUTIVE SENTENCES VIOLATES ITS OWN RULES AND ITS LEGISLATIVE MANDATE, AND CAUSED A MISCALCULATION OF THE APPELLANT'S ORIGINAL PAROLE ELIGIBILITY DATE.
II.
In reviewing a decision of the Board, we limit ourselves to an evaluation of whether the decision was arbitrary, capricious, or unreasonable. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). We recognize that such decisions are accorded a strong presumption of reasonableness. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994). Appellant shoulders the burden of demonstrating the decision of the Board was arbitrary, unreasonable, or capricious. Id. at 304-05. When faced with a claim that an agency's decision is not supported by evidence, our task is to review the record and the agency's findings to determine whether the findings could have reasonably been reached on the credible evidence before the agency. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). We owe deference to the expertise of the Board when it renders decisions in this field. Puchalski v. N.J. State Parole Bd., 104 N.J. Super. 294, 300 (App. Div.), aff'd, 55 N.J. 113 (1969), cert. denied, 398 U.S. 938, 90 S. Ct. 1841, 26 L. Ed. 2d 270 (1970).
After careful review, and being mindful of the standards that guide our decision, we conclude that the record contains sufficient credible evidence to support the Board's findings.
In challenging the Board's practice of "not applying commutation time to reduce the parole eligibility term on aggravated consecutive sentences[,]" McGill presents the same argument we rejected in his earlier appeal. Although we previously affirmed the Board's calculation of McGill's PED to be April 21, 2009, he continues to maintain that his PED should be April 2008, "exactly 25 years minus 205 days of jail credit." McGill relies on our decision in State v. Ellis, 346 N.J. Super. 583 (App. Div.), aff'd o.b., 174 N.J. 535 (2002), but we find that reliance is misplaced. Ellis requires a trial court to make specific findings when directing that a less restrictive sentence be served prior to a more restrictive sentence as such a sentence "is akin to the discretionary imposition of an additional period of parole ineligibility." Id. at 597. Ellis is inapplicable here as McGill is serving sentences imposed by two different courts and the Board must implement these sentences as imposed. See Glover v. State Parole Board, 271 N.J. Super. 420, 423 (App. Div. 1994) (holding that "the Parole Board's obligation is the administration of the parole process for each defendant but within the parameters of and in compliance with the terms of the sentence imposed by the trial court").
McGill did not challenge the 365-day sanction he received for the institutional infraction. We are satisfied that the Board correctly determined that only a portion of that sanction could be applied to McGill's primary eligibility term and properly deducted the balance of 230 days from the 996 days applied to the FET.
We decline to address McGill's additional contention that he was not properly credited with work credits and minimum custody credits, as he did not raise these claims in his administrative appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) ("It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available . . . .").
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION