November 14, 2007
KENNY MAHAN, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a final decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 22, 2007
Before Judges Stern and Collester.
Defendant appeals from a final administrative determination of the Department of Corrections ("DOC") which he claims extended his minimum term by failing to apply appropriate credits. He argues that the Department "unduly departed from statutory law when [it] failed to aggregate [his] consecutive sentences, thus resulting in an increase in prison exposure" and that the Parole Board "erred when it improperly deducted more commutation credits than that which Mahan lost." We shall assume that appellant can appeal from final administrative agency determinations of both simultaneously, as he does, because the two act together and are "interdependent." We shall also assume that the challenged calculation constitutes a final administrative determination.
In essence, Mahan asserts that as a result of erroneous calculation his "prison exposure has been unduly extended" in violation of his due process rights. He also claims the erroneous calculation delayed the effective date of his future eligibility date after the denial of parole.
Appellant was sentenced in November 1998 to a probationary term. As a result of subsequent drug law violations, he was sentenced in October 2000 to fifteen years in the custody of the Commissioner of the Department of Corrections, with seven andone-half years before parole eligibility under N.J.S.A. 2C:43-6f, consecutive to a four year term to the violation of probation ("VOP"). After our remand on his direct appeal to merge offenses, the same aggregate sentence was reimposed in April 2003. On a motion to correct an illegal sentence, in July 2006, defendant was re-sentenced to nine years in the custody of the Commissioner of the Department of Corrections with four andone-half years to be served before parole eligibility, with "credit for all time served" following imposition of the original sentence. At the time of his original sentence the mandatory extended term sentence did not apply to the public zone offense under N.J.S.A. 2C:35-7.1.
The sentence was modified in July 2006 with a statement:
The sentence imposed on October 27, 2000, and as modified on April 29, 2003, is vacated. Defendant convicted of a violation of 2C:35-7.1 is not subject to an extended term pursuant to 2C:43-6(f), and accordingly the extended term which was imposed must be, and hereby is, vacated on the court's own motion.
Thus, defendant was ultimately sentenced to nine years with four and-one-half years to be served before parole eligibility consecutive to the VOP he had already served. He was granted prior service credit from the original sentencing, so that all custodial credits were to be accorded from the original date of sentencing on October 27, 2000, independent of the jail credits that he received.
On October 26, 2006, the Bayside Classification Office prepared an amended calculation to correct the errors raised by the appellant. The amended calculation reflected that Mahan was re-sentenced on July 17, 2006, that the only active sentence was the nine year term with a four and-one-half year mandatory minimum term, as amended on July 17, 2006, and that the appellant was awarded 1,115 days of "prior service" credit. Under this calculation, appellant's "actual max" date was November 27, 2009, and the expiration of his mandatory minimum term was November 26, 2007.*fn1 Moreover, the VOP was deemed served.
The respondent now concedes that the calculation of appellant's mandatory minimum period in both the September and October 2006 calculations were incorrect.
Appellant alleges that the Department "concocted a formula that computed [his] consecutive sentences in a non-assertive fashion."
First, the Department of Corrections notes its reply brief states that appellant "is correct" in asserting that the Parole Board "deducted too many lost commutation credits" thereby extending his parole eligibility date because they deducted 298, instead of 240 days of commutation credits. The Department says that on April 13, 2007, "the parole eligibility date has been adjusted to reflect the correct date and he will receive a parole hearing in accordance with the corrected PED."
We find no basis to otherwise disturb the present calculation based upon the sentence currently in effect. The October calculations were addressed to the modified July 2006 sentence, and not the sentence as originally imposed. See N.J.S.A. 30:4-140; R. 2:11-3(e)(1)(D). Moreover, defendant does not assert that his sentence was illegal because the sentence for the new offenses was made consecutive to the VOP, see N.J.S.A. 2C:44-5, and he made no motion to correct an illegal sentence on this ground. Furthermore, N.J.S.A. 2C:43-10(d), on which appellant relies, requires aggregation of a sentence only for purposes of determining the placement of the prisoner.