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Richard Lehner v. New Jersey State Parole Board

December 7, 2011


On appeal from New Jersey State Parole Board.

Per curiam.


Argued October 5, 2011 - Before Judges Lihotz and St. John.

Appellant Richard Lehner, a former New Jersey inmate, appeals the New Jersey State Parole Board's (the Board) May 20, 2009 decision, which affirmed a Board panel's denial of parole and established an eighteen-month future eligibility term (FET). Lehner's release on parole from South Woods State Prison on March 1, 2010, following the filing of his appeal, renders moot his challenge to the Board's prior denial of parole. See Cinque v. N.J. Dep't of Corr., 261 N.J. Super. 242, 243 (App. Div. 1993) ("[C]courts will not decide cases in which the issue is hypothetical[.]" (quotation marks and citation omitted)).

Lehner's release, however, does not dispose of all issues raised on appeal, as he also contends he is entitled to jail credits resulting from time he was held by Arizona authorities enforcing a New Jersey detainer.

We agree.

In 1987 and 1988, Lehner was convicted of a series of burglary and theft offenses set forth in four indictments issued in three counties.*fn1 In 1987, he was sentenced to a five-year prison sentence as a youthful offender in Burlington County, and in 1988, to a consecutive five-year term of imprisonment for consolidated convictions in Burlington and Camden Counties. Lehner had been taken into custody on November 5, 1987, and released on parole on June 20, 1989. While still on parole, Lehner relocated to Arizona for employment opportunities, without first getting permission from his parole officer.

On May 17, 1991, parole warrant #06-2705 was issued for Lehner's arrest because he had violated the conditions of his parole. Sometime thereafter, this warrant was cancelled. Without evidentiary support, the Board insists the cancellation was inadvertent. A different parole warrant, #06-05652, was issued on August 27, 1997, more than a month after the expiration of Lehner's then maximum parole date of July 14, 1997. Lehner remained in Arizona for more than a decade. During this time, defendant claimed he "maintained gainful employment, greatly matured and became a law abiding citizen."

On December 21, 2004, Lehner was arrested in Phoenix, Arizona on drug possession offenses. Lehner certified he desired to post bail, but was told he could not be released from custody because of an outstanding New Jersey parole warrant. The Board lodged felony detainer out-of-state jurisdiction warrant OIS #12043 against Lehner on December 20, 2004, and pre-existing warrant #B15-00473, dated June 26, 2004, was cancelled. The Board provides no information explaining the basis of parole warrant #B15-00473 or the disposition of warrant #06-05652, issued on August 27, 1997.

Lehner pleaded guilty to the Arizona charges on October 18, 2005. In accordance with the terms of the plea agreement, Lehner pleaded guilty to a charge of "attempted possession of marijuana for sale, a class 3 felony . . . committed on or about December 17, 2004[,]" for which he was sentenced to a three-year term of incarceration. Upon completion of his Arizona sentence on July 14, 2007, Lehner remained in custody until August 3, 2007, because of the New Jersey detainer.

Lehner was extradited to the custody of the New Jersey Department of Corrections and committed to the South Woods State Prison in Bridgeton. Following an administrative hearing, a two-member Board panel concluded Lehner violated the conditions of his parole. The panel revoked Lehner's parole, established a fourteen-month FET, and returned him to custody to serve the remaining portion of his original sentence of six years, one month, and twenty-nine days. His maximum release date was revised and is now listed as February 25, 2013.

Lehner timely appealed from the panel's decision. When no response was issued by the Board, Lehner filed an appeal with this court (Docket No. A-3716-07).*fn2 Upon the Board's request, we granted a remand to allow it to consider Lehner's appeal from the panel's denial of parole. The Board affirmed the panel's decision. In follow-up correspondence, Lehner asserted several issues had not been addressed. The Board reviewed these issues relating to the denial of parole. In response to the contention that Lehner "[was] entitled to additional jail credits for the time . . . he was incarcerated in Arizona while awaiting sentencing for the 2004 out of state matter," the Board stated:

Upon review of the record, the full Board found that all court-awarded credit for time spent in custody, and applicable commutation credit, ha[d] been applied to your client's sentence. Therefore, the full Board found your contention on this matter is without merit. If you have an issue with the amount of jail credits awarded by the sentencing court, you should direct your concerns with that court. The [Board] does not have the authority to alter the amount of court-awarded jail credits.

Responding to Lehner's request for a "clarification concerning the specific nature and circumstances surrounding the inadvertent cancellation of the May 17, 1991 parole warrant and subsequent reissuance of the parole warrant in August 1997," and the contention that "[Lehner] [wa]s entitled to a documented explanation with regard ...

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