On appeal from Department of Corrections.
Before Judges Brody, Long and A. M. Stein.
The opinion of the court was delivered by BRODY, P.J.A.D.
An inmate of the Adult Diagnostic and Treatment Center (ADTC) appeals from the refusal of the Commissioner of the Department of Corrections to move before the sentencing court for modification of his sentence. The Special Classification Review Board had recommended in several periodic reports to the Commissioner that appellant's continued confinement is not necessary. The Commissioner declined to give any reasons for his steadfast rejection of these recommendations. Appellant contends that the Commissioner'S repeated rejections of the Board's recommendations constitute arbitrary official conduct that we must reverse. We disagree because N.J.S.A. 2C:47-4c, the applicable statute, does not require the Commissioner to accept the Board's recommendations.
This court, however, has the authority to review the Commissioner's refusal to move for modification of an inmate's sentence and must reverse that determination if it is arbitrary. We are unable to perform that function when, as here, the Commissioner fails to give reasons for his determination. We therefore hold that the Commissioner must give reasons for rejecting the Board's recommendation that an ADTC inmate no longer needs confinement.
Appellant, then twenty-five years of age, was convicted by his pleas in 1983 of aggravated sexual assaults on three women in Mercer County and of a kidnapping and aggravated assault on a fourth woman in Middlesex County. The crimes occurred within a six-month period. These were appellant's first convictions of any offenses. ADTC reported to the sentencing Judge in Mercer County that this assaultive sexual conduct was compulsive and likely to be repetitive. Pursuant to the plea agreement, appellant was sentenced in each county to custodial terms concurrent with the sentence imposed in the other county. The aggregate term in Middlesex County was twenty years imprisonment, ten years to be served before parole eligibility. The aggregate term in Mercer County was sixty years to be served at ADTC, fifteen years to be served before parole eligibility. Appellant has been serving these sentences at ADTC. He has now served the minimum ten-year term imposed in Middlesex County, but will not have served the minimum Mercer County term until March 1998.
We have carefully reviewed the contents of ADTC's records of appellant's confinement. No disciplinary charges have ever been lodged against him. He has fully participated in therapy, and has become a leader in helping other inmates deal with their emotional problems. His therapists have concluded for some time that he has responded exceptionally well to therapy. He contracted multiple sclerosis while at ADTC, which requires him to use a walker to get about.
Beginning with its 1989 periodic report, the Board and the Superintendent of ADTC have recommended to the Commissioner that he move before the sentencing court for a modification of appellant's sentence in view of his exceptional progress. A reduced period of parole ineligibility would allow the Board to recommend him for parole. With one exception the Commissioner has declined to state why he rejected each recommendation. In that exception, a 1991 rejection, the Commissioner stated that until July 1993, when appellant will have completed his minimum ten years under the Middlesex County prison sentence, there would be no point in modifying his sentence to ADTC. He concluded that determination by stating, "Perhaps future referral of this case pursuant to N.J.S.A. 2C:47-4c should be postponed until such time as subject is also eligible for parole on the Middlesex County sentence." However, even after July 1993, the Commissioner has continued to reject the Board's recommendations without stating any reasons.
A typical written ruling by the Commissioner appears in a memorandum, which we quote in full, that he sent to the Superintendent of ADTC in June 1993:
Your memorandum and related materials regarding the above captioned inmate have been received and reviewed.
I cannot conclude that continued confinement is not necessary in Mr. Hardwick's case. No action will be taken by my office to petition the court for resentencing.
The evidence we have of the Commissioner's rejection of the Board's latest recommendation is a copy of a memorandum to appellant dated January 3, 1994, from a member of the Superintendent's staff:
SUBJECT: Recommendation for modification of sentence as permitted by NJSA 2C:47-4C
Superintendent Plantier has received a reply from Commissioner Fauver to his memorandum concerning the above-captioned subject. Commissioner Fauver has decided not to petition the ...