On appeal from a Final Decision of the Department of Corrections.
Approved for Publication December 1, 1995.
Before Judges Baime, Villanueva and Kimmelman. The opinion of the court was delivered by VILLANUEVA, J.A.D.
The opinion of the court was delivered by: VILLANUEVA
The opinion of the court was delivered by VILLANUEVA, J.A.D.
Appellant Thomas Merola is a convicted murderer assigned to the custody of the Department of Corrections (DOC). He is currently incarcerated at the New Jersey State Prison (NJSP) in Trenton. In this appeal, Merola challenges the DOC's calculation of the end date of his term of incarceration. He contends that his thirty-year mandatory minimum sentence for murder can be reduced through the application of commutation and work credits earned during his incarceration. The DOC, on the other hand, determined that Merola's period of parole ineligibility may not be reduced, either through the application of commutation credits or through the compilation of inmate work credits, below the statutorily mandated term of imprisonment for murder. We agree with the DOC.
On September 24, 1984, a jury convicted Merola of five criminal offenses: first degree murder, first degree robbery, two counts of second degree aggravated assault, and second degree possession of a firearm with a purpose to use it unlawfully against the person of another.
On November 14, 1984, the Honorable Paul T. Murphy, J.S.C., imposed sentence on Merola. For the murder conviction, Merola was sentenced pursuant to N.J.S.A. 2C:11-3b to a "term of thirty (30) years and until released in accordance with law, without parole." His conviction for possession of the firearm was merged into the robbery conviction. For his conviction for first degree robbery, Merola was sentenced to fifteen years in prison with a seven and one-half year period of parole ineligibility. For his convictions of second degree aggravated assault, he was sentenced to two seven-year terms of imprisonment with two three and one-half year periods of parole ineligibility. Merola's sentences on these other charges were to run concurrent to his sentence for murder.
On July 12, 1993, Merola wrote to the DOC requesting a "written calculation depicting the exact date of my maximum sentence minus work and commutation credits if I continue to be housed at N.J. State Prison." A Senior Classification Officer at NJSP who responded to Merola's inquiry calculated Merola's release date on the basis of the erroneous characterization of his sentence as "a 30 year term, with no mandatory minimum, using your credits," mistakenly believing that Merola was not sentenced to a mandatory minimum term of thirty years. Therefore, she reduced the date for his parole eligibility by more than ten years, reflecting over 4,000 days of commutation and work credits that could have accumulated had Merola not been sentenced to a mandatory minimum term, noting that her calculation was based "on a 30 [year] flat sentence." The officer mistakenly stated that Merola's "ACTUAL MAX DATE as of 7/1/93" was July 22, 2002.
On August 8, 1993, Merola requested a clarification of the determination of his possible release date. On September 11, 1993, a Technical Assistant in the Classification Department at NJSP informed Merola that he was serving a thirty-year sentence with a thirty-year mandatory minimum term of imprisonment.
On November 1, 1993, Merola sent a letter to the DOC's Bureau of Classification and Sentencing challenging this interpretation of his sentence. In response, Merola was informed that his term of incarceration would not end until November 26, 2013, thirty years from the date of his sentencing minus credit for time he served in jail prior to his sentencing.
Merola then requested that William H. Fauver, the Commissioner of the DOC, provide yet another calculation of his release date. On June 21, 1994, Richard M. McCarron, the Administrator of Parole & Probation Programs for the DOC, informed Merola that he was serving a thirty-year term with a thirty-year period of parole ineligibility.
On July 21, 1994, Merola, pro se, filed an appeal with this court. He challenges the DOC's determination that the thirty-year mandatory minimum sentence imposed on him cannot be reduced by commutation and work credits. In his pro se briefs, Merola argues:
POINT I APPELLANT IS BEING DENIED WORK AND COMMUTATION CREDITS BECAUSE THE DEPARTMENT OF CORRECTIONS INCORRECTLY HAS HIS PRISON SENTENCE PORTRAYED AS A 30 YEAR MANDATORY MINIMUM.
POINT II THE FINAL DECISION OF THE DEPARTMENT OF CORRECTIONS SHOULD NOT BE AFFIRMED BECAUSE APPLICABLE STATUTORY PROVISIONS CLEARLY DO NOT PROHIBIT THE REDUCTION OF A MAXIMUM SENTENCE, (AS OPPOSED TO A MANDATORY MINIMUM TERM), THROUGH THE APPLICATION OF WORK AND COMMUTATION CREDITS.
POINT III THE STATUTES AND REGULATIONS AT ISSUE PROVIDE A LIBERTY INTEREST IN WORK AND COMMUTATION CREDITS TO ALL NEW JERSEY STATE PRISONERS EXCEPT THOSE SPECIFICALLY EXEMPTED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.
In a supplemental brief, Merola's pro bono counsel *fn1 argues:
POINT I THE DOC'S ERRONEOUS INTERPRETATION OF THE STATUTE UNDER WHICH MEROLA WAS SENTENCED IS ENTITLED TO NO DEFERENCE AND ITS DETERMINATION SHOULD BE REVERSED.
A. The statutory provision under which Merola was sentenced does not specify a mandatory minimum; any decision which construes it as containing such a limitation is ...