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McGill v. Department of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 15, 2008

JOHN MCGILL, APPELLANT,
v.
DEPARTMENT OF CORRECTIONS, RESPONDENT.

On appeal from a Final Agency Decision of the Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 1, 2007

Before Judges Stern and Collester.

Appellant John McGill is an inmate currently incarcerated at South Woods State Prison serving a life sentence for murder and a consecutive sentence of six and one-half years for forgery and theft by deception. He appeals from the final administrative decision of the State Parole Board's calculation of his parole eligibility date.

On December 23, 1982, McGill was sentenced to five years for theft by deception and a consecutive term of eighteen months for forgery for a total term of six years and six months. On September 27, 1983, McGill was found guilty by jury verdict of murder and sentenced on November 10, 1983 to a term of life imprisonment with twenty-five years to be served before parole eligibility, the sentence to run consecutively to the six and one-half year term he was serving. He was awarded 205 days of jail credit.

In July 2006, McGill made an institutional request to determine his parole eligibility date. The Parole Board responded a month later and calculated McGill's earliest eligibility date for parole as April 21, 2009. This appeal followed.

McGill relies upon N.J.S.A. 30:4-123.51(b), which states:

Each adult inmate sentenced to a term of life imprisonment shall be primarily eligible for parole after having served any judicial or statutory minimum term, or twenty-five years where no mandatory minimum term has been imposed less commutation time for good behavior and credits for diligent application to work in other institutional assignments. If an inmate sentenced to a specific term or terms of years is eligible for parole on a date later than the date upon which he would be eligible if a life sentence had been imposed, then in such case the inmate shall be eligible for parole after having served twenty-five years, less commutation time for good behavior for diligent application to work in other institutional assignments.

McGill also relies upon the following regulation:

Where a life term of a specific term with a judicial or statutory mandatory minimum term has been imposed, the parole eligibility term shall be the mandatory minimum term, provided that such minimum term is greater than otherwise required by subsection (c)1 or (c)2 above.

McGill therefore argues that his parole ineligibility term cannot be more than twenty-five years, and the April 21, 2009 date calculated by the Parole Board is twenty-six years to the date of his last sentence so that therefore the Parole Board's calculation is incorrect. McGill's calculation is based on the fact that he was sentenced to life imprisonment on November 10, 1983, and was given 205 days of jail credits. Therefore, he argues that his life sentence actually began in April 1983 and that his proper parole eligibility date is April 2008.

We agree with the calculation by the State Parole Board. In addition to his life sentence, McGill was previously sentenced to a six and one-half year term, which comprised a five year sentence that began on December 23, 1982 and an eighteen-month consecutive sentence which began on June 12, 1984. As to those sentences, McGill's parole eligibility date was November 12, 1984, calculated by taking one-third of each sentence and adding work credits.

McGill's November 10, 1983 of a life term within a twenty-five year parole ineligibility was imposed by the sentencing judge to run consecutively to the six and one-half year sentence previously imposed, and he was awarded 205 days of jail credit on that judgment of conviction.

The Parole Board relies upon the regulation which provides as follows:

When a consecutive term is imposed, the parole eligibility term derived from the consecutive term, less county jail credits, shall be added to the parole eligibility term derived from the original term, less county jail credits, to determine the aggregate parole eligibility term. [N.J.A.C. 10A:71-3.2(d).]

Under the regulation the calculation for parole eligibility begins by determining the parole eligibility term on the original term, which is the initial six and one-half year sentence, and the parole eligibility date for the 1982 sentence was November 12, 1984 as indicated. Since the sentence on his murder conviction was consecutive to the 1982 sentences, the mandatory twenty-five year minimum term began to run on November 12, 1984. Therefore, the State Parole Board was correct in its calculation of McGill's parole eligibility date to be April 21, 2009.

Affirmed.

20080115

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