July 28, 2008
WILLIAM FEDD, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 8, 2008
Before Judges C.S. Fisher and Grall.
William Fedd is currently incarcerated at the Southern State Correctional Facility. He appeals from a final determination of the Department of Corrections (DOC). The DOC concluded that his maximum release date is July 3, 2010.
The facts are not disputed. After serving a portion of a fifteen-year term of incarceration, which was imposed as a consequence of a 1984 conviction, Mr. Fedd was paroled on August 13, 1991. Because time served on parole is credited against a sentence, that sentence would have expired on January 22, 1996. N.J.S.A. 30:4-123.65. Mr. Fedd violated parole, however, and a warrant for that violation was issued on July 27, 1992. The issuance of a parole warrant suspends the running of the sentence until the date on which the parolee is arrested. Ibid. When the parolee is arrested, service of the sentence resumes. Ibid. Mr. Fedd was arrested on January 29, 1993.
On October 28, 1993, Mr. Fedd was convicted of four counts of first-degree robbery and related crimes and was sentenced to an aggregate twenty-year term of incarceration with a ten-year period of parole ineligibility. Pursuant to N.J.S.A. 2C:44-4c, the trial court had discretion to order that the 1993 sentence and "any period of reimprisonment that the parole board [might] require the defendant to serve upon revocation of his parole . . . run concurrently." N.J.S.A. 2C:44-5c. The trial court did not so order, and for that reason, the sentence and the term of reimprisonment must "run consecutively." Ibid. Thus, Mr. Fedd's maximum aggregate sentence was twenty years, ten without possibility of parole, plus "any period of reimprisonment [for his 1984 conviction] that the parole board [would] require the defendant to serve upon revocation of his parole . . . ." Ibid.; see N.J.S.A. 2C:44-5e(2).
On April 6, 1994, the Parole Board revoked Mr. Fedd's parole. The revocation was based in part on his convictions, i.e., parole was revoked due to Mr. Fedd's failure to "[o]bey all laws and ordinances" and his failure to "[r]eport as instructed." The term of reimprisonment imposed by the Board was service of his "adjusted maximum sentence as determined by the [DOC]." Mr. Fedd and the DOC agree that he owed 1274 days on his 1984 sentence.
Mr. Fedd was again released on parole on November 10, 2005. That parole was revoked because Mr. Fedd did not complete a program he was required to attend. On that revocation, the parole board imposed a parole eligibility term of fifteen months.
As we understand Mr. Fedd's argument on appeal, he does not dispute the complex calculation of jail credits, work credits, commutation credits earned and lost or time lost while service of his sentence was suspended between issuance of the parole warrants and his arrests. In short, his objection is not to the DOC's arithmetic. He contends that the DOC lacked legal authority to calculate his maximum term by aggregating the sentence for his 1993 conviction and the term of reimprisonment imposed as a consequence of his first parole violation.*fn1 Mr. Fedd argues that but for the DOC's unlawful aggregation of those sentences, service of his term of reimprisonment on the 1984 sentence would have commenced immediately after service of the ten-year period of parole ineligibility that was part of his 1993 sentence. On that basis, he submits that he has served the 1274 days that were owed on his 1984 sentence.
Mr. Fedd's claim lacks merit. The calculation of a maximum sentence is a ministerial act that is within the authority of the DOC. "The [DOC] is entrusted with the legal authority, among other things, 'to provide for the custody, care, discipline, training and treatment of adult offenders committed to State correctional institutions or on parole[.]'" Ries v. Dep't of Corrs., 396 N.J. Super. 235, 238 (App. Div. 2007) (quoting N.J.S.A. 30:1B-3). That responsibility necessarily includes award and calculation of commutation credits, work credits and the date on which an inmate must be discharged because the inmate's sentence has been fully served. See N.J.S.A. 30:4-140; N.J.S.A. 30:4-92. The DOC's aggregation of Mr. Fedd's sentence and his term of reimprisonment was a ministerial act effectuating what subsections c and e of N.J.S.A. 2C:44-5 require when the trial court does not order a sentence for a crime to run concurrently with a period of reimprisonment imposed by the parole board.
Mr. Fedd argues that N.J.S.A. 30:4-123.51h and N.J.A.C. 10A:71-3.2 give the parole board, not the DOC, authority to aggregate sentences. The argument confuses parole eligibility and maximum sentence. This court's decisions in Curry v. N.J. State Parole Bd., 309 N.J. Super. 66, 71 (App. Div. 1998), and N.J. State Parole Bd. v. Gray, 200 N.J. Super. 343, 348 (App. Div. 1985), upon which Mr. Fedd relies, address the parole board's responsibility to aggregate parole eligibility terms, not maximum sentences.