JUAN LOPEZ v. NEW JERSEY STATE PAROLE BOARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2278-05T22278-05T2

JUAN LOPEZ,

Petitioner-Appellant,

v.

NEW JERSEY STATE PAROLE

BOARD,

Respondent-Respondent.

_____________________________

 

Submitted September 13, 2006 - Decided November 17, 2006

Before Judges Stern and Collester.

On appeal from the New Jersey State

Parole Board.

Juan Lopez, appellant pro se.

Anne Milgram, Acting Attorney General,

attorney for respondent (Michael J.

Haas, Assistant Attorney General, of

counsel; Kimberly A. Sked, Deputy Attorney

General, on the brief).

PER CURIAM

Petitioner Juan Lopez, an inmate at Riverfront State Prison, appeals denial of parole by the New Jersey State Parole Board. On November 4, 1976, he was sentenced to an aggregate life sentence for murder and armed robbery under N.J.S.A. 2A:113-1, N.J.S.A. 2A:141-1, and N.J.S.A. 2A:151-5. After serving eighteen years, he was released on parole on November 9, 1994. However, on August 27, 1997, his parole was revoked for his failure to obey all laws and ordinances and he was remanded to state prison until he was again released on parole on July 12, 2000. Lopez was then arrested on February 3, 2001, and charged with four counts of theft from a person and four counts of impersonating a police officer, contrary to N.J.S.A. 2C:20-3(a); 2C:28-8. He was released on bail three days later but was arrested again on May 11, 2001, and charged with shoplifting, contrary to N.J.S.A. 2C:20-11.

Also on May 11, 2001, Lopez was returned to the custody of the Commissioner of Corrections for parole violations of failure to report, failure to inform his parole officer of his arrest and possession of a controlled dangerous substance in violation of N.J.S.A. 2C:35-2 and N.J.S.A. 2C:35-11. His parole was formally revoked on August 15, 2002, and on that date the Parole Board set a future eligibility term (FET).

While serving his original sentence, Lopez was convicted on December 11, 2001, of one count of theft from the person and one count of impersonating a police officer, which resulted in an aggregate sentence of eighteen months incarceration. On the same date, Lopez was convicted on a separate indictment for one count of theft from the person and one count of impersonating a police officer, resulting in the imposition of an additional eighteen months. That judgment of conviction provided that both sentences were to run concurrent with each other with the parole violation. Finally, on January 28, 2002, Lopez was convicted and sentenced to serve nine months incarceration for shoplifting under N.J.S.A. 2C:20-11(b)(1), also to run concurrent with the parole violation and his sentence on other indictments.

On December 19, 2002, Lopez was denied parole and received a thirty-six-month FET. When he next appeared before the Parole Board on June 30, 2005, he had served his full sentences on the convictions for theft, impersonating a police officer and shoplifting. He received a twenty-four-month FET on his Title 2A conviction to begin upon expiration of his earlier FET on October 8, 2005. After application of commutation credits, the Parole Board fixed Lopez's parole eligibility term as May 5, 2007.

In accordance with N.J.A.C. 10A:71-4.2(i), Lopez sought appeal to the Chairman of the Parole Board, asserting that the parole eligibility calculation was incorrect because the maximum term of the sentences received on the "2C" convictions expired on April 11, 2005, so that the FET should have commenced at the expiration of the maximum term of the five-year sentence, which was April 11, 2005 and not the October 7, 2005, date adopted by the Parole Board. His request for reconsideration of his parole eligibility calculation was denied by the Chairman of the Parole Board. This appeal followed.

Lopez's basic contention is that as a "2A" parole violator, he should have received a FET of two years from an adjusted maximum expiration date of his five-year sentences on August 24, 2004. The Parole Board responds that when an inmate has received multiple sentences, which have been aggregated in order to determine a FET, the completion of one or more of the sentences does not impact the original computation. The Board also asserts that Lopez misconceives the applicable statutes and regulations in seeking release upon completion of the FET because an inmate must reappear before the Parole Board for consideration of his release when a FET date has been satisfied.

 
After careful review, we are satisfied that the calculations of the Parole Board were correct and that Lopez must appear before the Parole Board at the expiration of that FET before consideration of his release from institutional custody.

Affirmed.

(continued)

(continued)

4

A-2278-05T2

November 17, 2006