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Ortiz v. New Jersey State Parole Board

Superior Court of New Jersey, Appellate Division

June 6, 2013

MICHAEL ORTIZ, Appellant,
v.
NEW JERSEY STATE PAROLE BOARD, Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 21, 2013.

On appeal from the New Jersey State Parole Board.

Michael Ortiz, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

Before Judges Harris and Hayden.

PER CURIAM.

Appellant Michael Ortiz appeals from a final decision of the State Parole Board, dated December 13, 2011, regarding the calculation of his parole eligibility date. For the reasons that follow, we affirm.

We discern the following from the sparse record provided. On August 13, 2010, Ortiz received a sentence under Atlantic County Indictment 08-05-1206 (Atlantic Indictment) of a ten-year term of imprisonment with three years and four months parole ineligibility. He was awarded twenty-five days of jail credit. The same day, Ortiz received a sentence under Cape May County Indictment 08-12-0939 (Cape May Indictment) of "Credit [for] Time Served 765, " concurrent with the sentence imposed under the Atlantic Indictment.

Based upon the mandatory-minimum term of three years and four months under the Atlantic Indictment, the Parole Board provided Ortiz with a parole eligibility date (PED) of November 17, 2013. Ortiz filed several administrative appeals, maintaining that the PED was incorrect. He contended that the 765 days applied to the "time served" sentence on the Cape May Indictment also should have been applied as jail credits to the mandatory-minimum sentence on the Atlantic Indictment. The Parole Board responded that jail credits are not aggregated from noncustodial terms. The Board also advised Ortiz to contact the sentencing judge to request an amended judgment of conviction reflecting the judge's intention that the Cape May jail credits apply to the Atlantic Indictment. Ortiz chose to pursue an internal Parole Board appeal.

A Board administrator issued the final Parole Board decision, which explained the grounds for the denial:

N.J.S.A. 30:4-123.51h provides that "when an inmate is sentenced to more than one term of imprisonment, the primary parole eligibility terms calculated pursuant to this section shall be aggregated by the board for the purpose of determining the primary parole eligibility date." It is noted that you are serving a single term of incarceration, specifically, a ten year term of incarceration with a forty-month mandatory-minimum on [Atlantic Indictment]. It is noted that the Judgment of Conviction issued on [Cape May Indictment] reflects that you were sentenced to "credit for time served" and does not reflect that you were sentenced to a term of imprisonment.
As noted above, the State Parole Board is authorized to aggregate parole eligibility terms derived from custodial sentences. As the sentence imposed on [Cape May Indictment] does not include a term of imprisonment, there is no "aggregation" for the purpose of calculating your parole eligibility date. Accordingly, as there is no aggregation of parole eligibility terms there is no aggregation of jail credits.
If it is your expectation that you were to receive as part of the plea agreement the 765 days in question as additional jail credit on the sentence imposed on [Atlantic Indictment], then you should address the matter with the sentencing court. If an amended Judgment of Conviction is issued by the sentencing court awarding you the additional jail ...

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