June 30, 2009
ALEXANDER RACK, APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 27, 2009
Before Judges Lisa and Alvarez.
Alexander Rack appeals from a New Jersey State Parole Board (Board) decision that denied him parole and imposed a parole eligibility date (PED) of November 18, 2010. We affirm.
On December 15, 1995, Rack was sentenced on a violation of probation on a third-degree burglary, N.J.S.A. 2C:18-2, to a four-year state prison term with credit for time served of sixty days. He was simultaneously sentenced on a new offense, certain persons not to have weapons, N.J.S.A. 2C:39-7, to four years in state prison, consecutive to the term of incarceration on the burglary offense, with credit for time served of fifteen days.*fn1
On December 6, 1995, Rack was arrested on new offenses. The resulting indictment charged him with attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1). Rack was sentenced on a guilty plea to this offense on July 30, 1998, to twenty years in state prison, consecutive to any other sentences. A ten-year term of parole ineligibility was also imposed. No credit for time served was awarded, presumably because, as Rack indicates in his pro se papers, he was in custody, but was pending a parole revocation hearing on the burglary and weapons offenses.*fn2
On June 3, 2008, Rack appeared before a two-member panel of the Board. His book PED date was calculated to be July 29, 2008. A thirty-six month future eligibility term (FET) was imposed, and he was denied parole. The panel aggregated all the sentences, resulting in a total minimum time to be served of twelve years, seven months, and fifteen days.
The calculation appears to have been made based on Rack's sentence date of July 30, 1998, carried forward to account for the ten years of parole ineligibility to July 29, 2008, plus the FET of thirty-six months, which carried him to July 29, 2011. From that date, the Board deducted commutation credits of 252 days and a work credit of one day, which offset the thirty-six month FET. As a result, the parole date was reduced from July 29, 2011 (ten-year parole ineligibility term plus thirty-six months FET) to November 18, 2010 (July 29, 2011 minus 253 days).
Rack administratively appealed to the full Board. The Chairman reviewed the PED on August 27, 2008. On September 19, 2008, the full Board affirmed the panel's PED calculation, the thirty-six month FET, and the decision to deny parole.
Rack does not challenge the propriety of the thirty-six month FET per se. Rather, he challenges the Board's calculation of the commencement date of the term of parole ineligibility, for reasons not clearly articulated in his brief. He states that the Parole Board failed to properly aggregate his sentence pursuant to N.J.S.A. 30:4-123.51(h) and to take into account State v. Lane, 279 N.J. Super. 209, 223 (App. Div.), certif. denied, 141 N.J. 94 (1995), and State v. Ellis, 346 N.J. Super. 583, 597 (App. Div.), aff'd, 174 N.J. 535 (2002), which generally require that the more restrictive sentence be served first absent specific findings at sentencing. Rack further states that the correct date from which to calculate the term of parole ineligibility on the attempted murder was the date of his arrest, not the date on which the sentence was imposed. This proposition has no support in law.
"A strong presumption of reasonableness must be accorded [to an] agency's exercise of its statutorily delegated duties." In re Certificate of Need Granted to the Harborage, 300 N.J. Super. 363, 380 (App. Div. 1997). We apply the same standard to parole decisions as to other agency determinations. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998). Such decisions "should not be reversed by a court unless found to be arbitrary . . . or an abuse of discretion." Ibid. In making the determination, we must consider whether the decision violated express or implied legislative policy, whether the record supports the Board's conclusion, and whether in applying the legislative policies to the facts, the Board clearly erred in reaching an unreasonable conclusion. Id. at 24. We find the Board's decision to accord with applicable law, to be supported by the record, and to be reasonable.
We cannot discern any error in the Parole Board's decision. No credit for time served was awarded on the attempted murder. The Board's calculation cannot begin at a date earlier than when the sentence was imposed, such as the date of arrest.
Furthermore, the principles enunciated in Lane, supra, 279 N.J. Super. 209, are inapplicable to Rack's sentences, which were not imposed on the same date. In this case, the sentence dates were December 15, 1995, and July 30, 1998. Hence, there is no basis in law or fact to disturb the conclusion of the Board. Rack's arguments lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).