On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket Indictment No. 90-9-4375.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2007
Before Judges Gilroy and Baxter.
Defendant appeals from the February 25, 2005, order of the Law Division, denying his motion for post-conviction relief (PCR), seeking to correct an illegal sentence. We affirm.
Tried to a jury, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1 (Count One); purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1) and (2) (Count Two); felony murder, N.J.S.A. 2C:11-3a(3) (Count Three); third-degree aggravated assault (lesser-included offense of second-degree aggravated assault), N.J.S.A. 2C:12-1b(1) (Count Four); third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b (Count Five); and second-degree possession of a weapon (handgun) for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Six). On January 4, 1991, defendant was sentenced on Count Two to thirty years of imprisonment without parole and to lesser concurrent terms for robbery, aggravated assault, and possession of a firearm without a permit. The convictions for felony murder and possession of a weapon for an unlawful purpose were merged. On direct appeal, defendant's conviction for aggravated assault was reversed, and the remaining verdicts and sentences were affirmed. State v. Ellerbe, Docket No. A-3784-90T4 (App. Div. October 22, 1993). On April 29, 1994, the Supreme Court denied defendant's petition for certification. State v. Ellerbe, 136 N.J. 298 (1994).
Having previously been denied relief on at least one prior motion for PCR, as well as on a prior writ of habeas corpus in the United States District Court, defendant filed a motion for PCR on November 1, 2002, challenging his sentence on Count Two as illegal. Although we are somewhat impeded in our review because defendant did not provide us with a copy of the PCR motion, setting forth his legal arguments in the Law Division, it appears from a review of his appellate criminal case information statement that he sought to correct his sentence "as interpreted by the New Jersey Department of Correction[s] [(DOC)]," contending that the DOC had improperly denied him 4,516.45 days of commutation*fn1 and work credits,*fn2 which if deducted from his sentence, would have entitled him to have been released from custody. On February 25, 2005, an order was entered denying the motion for PCR. On June 12, 2006, the trial judge entered a supplemental three-page written opinion, setting forth his findings of fact and conclusions of law for denying the motion.
On appeal, defendant argues, "THE INTERPRETATION THAT THE SENTENCE IS A 'MANDATORY-MINIMUM' MADE THE SENTENCE ILLEGAL, IN VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONS." Defendant contends that his thirty-year mandatory sentence for murder should have been reduced through the application of commutation and work credits that he had earned while in custody. Defendant asserts that at the time he was sentenced, N.J.S.A. 2C:11-3b did not require that he serve a "mandatory minimum" term, but only directed that he serve the full term before he could "be eligible for parole." Defendant argues that this court's holding in Merola v. Dep't of Corr., 285 N.J. Super. 501, 507 (App. Div. 1995), that the phrase "not eligible for parole" in N.J.S.A. 2C:11-3b, "unquestionably denotes a mandatory minimum sentence" so as to prohibit the reduction of a sentence imposed under that section of the statute through the application of commutation and work credits, was erroneous.
In the alternative, defendant asserts that both the DOC and the trial judge improperly denied his application for commutation and work credits by retroactively applying Merola, violating the ex post facto provisions of the Federal and State constitutions. Lastly, defendant contends that the phrase "not eligible for parole," N.J.S.A. 2C:11-3b, is ambiguous, and the DOC and the trial court's interpretation of the Merola decision violates the "rule of lenity," that is, "if a court must chose between two readings of a criminal statute, the court should apply the more lenient one, leaving it to the legislature to speak in clearer terms if the harsher alternative is intended." United States v. D'Alessio, 822 F. Supp. 1134, 1143 (D.N.J. 1993).
We first address a procedural issue. We agree with the trial judge's initial determination that because defendant's complaint concerned the application of commutation and work credits defendant's arguments should have been addressed by the DOC, not the Law Division. The Law Division did not have jurisdiction to entertain defendant's motion, challenging the DOC's decision not to reduce his thirty-year mandatory minimum sentence by the application of commutation and work credits, and the matter should have been transferred to the Appellate Division. R. 2:2-3(a)(2); R. 1:13-4(a); Karatz v. Scheidemantel, 226 N.J. Super. 468, 471 (App. Div.), certif. denied, 113 N.J. 384 (1988). However, because the Law Division did address the motion on the merits and the State has responded to defendant's appeal, we will entertain the matter as a direct administrative appeal. Karatz, supra, 226 N.J. Super. at 472.
We have reviewed the record in its entirety and conclude that defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Petrolle, in his June 12, 2006, memorandum of decision. Nevertheless, we add the following comment.
Defendant's primary contention is that Merola, decided after the date of the incident leading to his conviction on Count Two, established a new principle of law and that the decision should not have been retroactively applied so as to bar him from having his sentence reduced by application of commutation and work credits earned while in custody. Defendant's argument fails because Merola did not establish a new principle of law, but merely applied the existing law as determined by the Legislature to an inmate who, like defendant, had been sentenced to a term of thirty years of imprisonment without parole, pursuant to N.J.S.A. 2C:11-3b. See Merola, supra, 285 N.J. Super. at 507-09, where the court reviewed the legislative history of the term "not eligible for parole" as contained in N.J.S.A. 2C:11-3b and the legion of cases decided prior to June 6, 1990, the date of defendant's offense, interpreting the statute as imposing a thirty-year mandatory minimum sentence on non-capital murderers. Moreover, the prohibition against reducing a mandatory minimum sentence through the application of commutation or work credits is prohibited by N.J.S.A. 40:123.51a, a statute enacted prior to the date of defendant's offense.
Consistent with the provisions of the New Jersey Code of Criminal Justice (N.J.S. 2C:11-3, 2C:14-6, 2C:43-6, 2C:43-7), commutation and work credits shall not in any way reduce any judicial or statutory mandatory minimum term and such credits accrued shall only be ...