On appeal from Final Decisions of the Department of Corrections.
The opinion of the court was delivered by: Parrillo, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 28, 2005
Before Judges Cuff, Lintner and Parrillo.
In these back-to-back appeals, consolidated for opinion purposes, appellants challenge, as violative of equal protection and due process, N.J.S.A. 30:4-140, which denies state prisoners commutation credit toward parole eligibility for the period of their presentence jail incarceration, while those released on bail or personal recognizance prior to sentence receive full allowance of commutation credit for the entire period of prison confinement. Specifically, they argue that the denial of commutation credits deprives them of a protected liberty interest, discriminates against them on the basis of financial status, and impermissibly chills their rights to a jury trial and to plead not guilty. We disagree.
In New Jersey, both "jail time" and "commutation time" figure variously in the calculation of release dates that each inmate receives upon arrival at state prison. "Jail time" denotes that time an individual spends in a county jail prior to trial and sentencing, and jail time credits are day-for-day credits given to the inmate for this time in custody and subtracted from the original sentence. On the other hand, 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. Although given to an inmate upon his entry into the state correctional system, ibid.; N.J.A.C. 10A:9-5.1, commutation credits, unlike jail credits, are awarded in anticipation of good conduct and may be taken from an inmate for a variety of reasons, including misconduct. N.J.S.A. 30:4-140; N.J.S.A. 30:4-16.2; N.J.A.C. 10A:9-5.3(a) and (b).
Thus, N.J.S.A. 30:4-140 sets forth a schedule that details the amount of commutation credits applicable to various maximum sentences. However, the statute expressly disallows consideration of county jail time in computing commutation time:
No time credits shall be calculated as provided for herein on time served by any person in custody between his arrest and the imposition of sentence. [N.J.S.A. 30:4-140.]
In practical terms, jail credits given to the inmate for the time spent in custody pre-trial are subtracted from the original sentence, and the commutation credits are calculated using the adjusted sentence. In other words, those individuals who are released either on bail or their own recognizance receive the benefit of the commutation credits for the entire sentence, while those who are not so released receive commutation credits on the sentence minus the time they spent in the county jail pre-trial. As the Department of Corrections (DOC) readily concedes, "the award of commutation credit is actually reduced by pre-sentence jail credits."
Thus, appellant, Robert Buncie, being unable to post bail, served 120 days' jail time in the county jail prior to his transfer to state prison to serve an 18-year term with a 9-year parole bar for aggravated sexual assault and endangering the welfare of a child. Accordingly, commutation credits of 1993 were awarded based on a 17-year, 8 month, and 2 day sentence, instead of 2040 credits based on the 18-year sentence imposed.
Appellant, Floyd Ellerbee, also failed to make bail and spent 613 days' jail time prior to his transfer to state prison for an aggregate term of 32 years with a 16-year parole bar for conspiracy, and various drug and weapon offenses. His commutation credits totaled 4044 based on a sentence of 30 years, 3 months, and 23 days, instead of 4368 credits based on the 32-year sentence imposed. Appellant, Pedro LaBoy, also unable to post bail, served 872 days' jail time in the county jail prior to his transfer to state prison to serve a 30-year sentence with a 15-year parole bar for aggravated manslaughter. He was awarded 3554 commutation credits based on a sentence of 27 years, 7 months and 10 days, instead of 3984 credits based on the 30-year sentence imposed. Finally, appellant, Joseph Logmans, either failed to make bail or was denied bail and spent 412 days' jail time in the county jail prior to his transfer to state prison to serve an aggregate 30-year term with a 15-year parole bar for kidnapping and various sex offenses. His commutation credits amounted to 3781 based on a sentence of 28 years, 10 months, and 14 days, instead of 3984 credits based the 30-year sentence imposed. It is undisputed that, were appellants to receive commutation credit for their pre-sentence confinement in county jail, they would be entitled to a reduced maximum term.
By the same token, it merits mention that commutation credits do not affect appellants' parole eligibility. Commutation credits reduce an inmate's maximum incarceration date by reducing the maximum term imposed by the sentencing court. However, an inmate becomes parole eligible when he serves his mandatory minimum term, if one is imposed, or when he serves one-third of his sentence. N.J.S.A. 30:4-123.51a; N.J.A.C. 10A:71-3.2(c)(2); Curry v. N.J. State Parole Bd., 309 N.J. Super. 66, 70 (App. Div. 1998). Thus, commutation credits serve only to reduce ...