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Keith E. Johnson v. New Jersey State Parole Board

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 25, 2012

KEITH E. JOHNSON, APPELLANT,
v.
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.

On appeal from the New Jersey State Parole Board.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 16, 2011

Before Judges Harris and Koblitz.

Keith E. Johnson appeals from the final agency decision of the State Parole Board regarding the calculation of his sentence after he was denied parole on January 21, 2009. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Johnson is currently serving a custodial sentence for a parole violation stemming from an indeterminate to thirty-five-year sentence he received for a 1974 rape conviction. In 1986, he was sentenced to an aggregate of forty years in prison for sixteen crimes, including robbery and armed burglary. This sentence was ordered to run consecutive to the parole violation.

Johnson raises the following issue on appeal:

THE, Defendants have continuously violated appellants Substantive, Procedural Due Process rights of law; and his Proctected Liberty Interest Rights, under U.S. Const. Amend XIV, V, XIII, §1. (2) Abrigment of Legislative Enacted Criminal Sentencing Statue, N.J.S.A. 2A: Indeterminate. 30:4-146 et seq. 30:4-153 et seq. N.J.S.A. 30:4-148.1

(3) Cruel and Unusual Punishment, U.S. const. Amend. VIII.*fn1

Although the Parole Board calculated the expiration of appellant's forty-year sentence as March 18, 2006, the Department of Corrections (DOC) calculated the completion date to be July 13, 2006. Johnson does not specifically dispute the DOC's calculation.

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 calculation of the date on which an inmate must be discharged after the inmate's sentence has been fully served. See N.J.S.A. 2C:44-5(c). We therefore defer to the DOC's calculations regarding the completion date of defendant's forty-year sentence.

Although Johnson completed the forty-year sentence in 2006, the New Jersey State Parole Board mistakenly reviewed his parole in January 2009. Johnson brought this error to the Board's attention, and in a July 2, 2009 letter from Regional Supervisor Scott J. Dechen, the Board acknowledged error and amended the parole denial to reflect a decision by the Young Adult Panel. Johnson does not specifically object to the Board's decision to amend the January 2009 parole denial to reflect a decision by a different panel. Thus, we do not address the propriety of such action.

In a November 24, 2009 letter, Dechen indicated that the Board would continue its periodic parole reviews and that he was forwarding Johnson's letter to the DOC because it appeared that Johnson was disputing the DOC's calculation of the expiration of his maximum term.

In a January 13, 2010 letter from Lisa A. Puglisi, the director of the legal support unit, the Board denied Johnson's appeal of the January 21, 2009 denial as moot after determining that the decision was vacated. Johnson's parole eligibility was thereafter reviewed as a young adult case.

Having completed the forty-year sentence, Johnson must now serve the "young adult"*fn2 sentence imposed for the parole violation. That sentence is nine years, one month and twenty-six days and expires on February 9, 2015. Johnson indicates that the Board initially informed him that his sentence on the parole violation would expire in forty months and was subsumed by the forty-year state prison sentence. To the extent that the Board in 1986 or 1987 misinformed Johnson as to the expiration date of his consecutive sentences, such misinformation does not form a basis for his early release.

Johnson further argues that the DOC's calculation of the consecutive sentences violates his constitutional rights. However, it is difficult to ascertain the basis of Johnson's argument, although he clearly believes he has served the maximum time on both sentences. If he is arguing that the sentences were required to be served concurrently, we do not agree that such a requirement exists. See N.J.S.A. 2C:44-5(c).

This appeal was taken from the Board's decision of January 21, 2009. The Board considered this decision to be vacated and therefore moot. On appeal, the Board argues that Johnson's sentence was correctly calculated by the DOC. We find no persuasive evidence to the contrary.

Affirmed.

A-3589-09T1


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