DAVID CONNOLLY v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2324-05T22324-05T2

DAVID CONNOLLY,

Plaintiff-Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Defendant-Respondent.

________________________________

 

Submitted November 9, 2006 - Decided December 12, 2006

Before Judges Parrillo and Sapp-Peterson.

On appeal from a Final Agency Decision of the

Department of Corrections.

David Connolly, appellant pro se.

Stuart Rabner, Attorney General of New Jersey,

attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Keith S. Massey, Jr.,

Deputy Attorney General, on the brief).

PER CURIAM

Appellant David Connolly, an inmate confined in Southern State Correctional Facility, appeals from the calculation by respondent Department of Corrections (DOC) of his maximum release date of June 7, 2007 as of May 23, 2006. We affirm.

On April 12, 2005, appellant commenced serving a two-year, three-month, and sixteen-day term for a parole revocation on his previous twenty-year aggregate sentence imposed on July 17, 2000. He was at that time accorded jail credits of 341 days for the time he had spent in custody at the county jail prior to sentencing. R. 3:21-8. He was also accorded commutation credits of 2,194 days based on his adjusted nineteen-year, twenty-five day sentence. N.J.S.A. 30:4-140. However, appellant lost 390 days of commutation time because of disciplinary infractions, N.J.A.C. 10A:4, but then had 165 days of commutation credit restored pursuant to N.J.A.C. 10A:9-5.5(c)(1), which allows for a twenty-five percent restoration each of the three years directly after the sanction, provided the inmate remains charge free and in custody. In addition, appellant was awarded 332 days of work credit as of his parole release on May 18, 2004, and an additional ten days of work credit earned while in county jail, which time has been applied to his time owed at parole. N.J.A.C. 10A:9-5.6. Finally, appellant was awarded 1,931 days of prior service credit, and 203 days of gap time credit pursuant to N.J.S.A. 2C:44-5b(2). Based on all these reductions in the base term, appellant's maximum release date was calculated to be June 19, 2007.

However, appellant owed time on his sentence because of violating parole. N.J.S.A. 30:4-123.65. As noted, he was paroled from custody on May 18, 2004. The Parole Board issued a warrant for parole violations on February 23, 2005 and appellant was returned to custody on April 12, 2005. Because appellant is not entitled to credit for the time in between issuance of the warrant on February 23, 2005 and his return to custody on April 12, 2005, N.J.S.A. 30:4-123.65, when he was taken into custody he owed 847 days on his sentence, minus the ten days of county jail work credits he was awarded by the DOC on remand of this appeal for a total of 837 days. Based on this time owed, appellant's maximum release date, inclusive of an additional fifty days of work credits earned as of May 23, 2006, is June 7, 2007.

Appellant challenges this calculation on a variety of grounds, all of which we reject. Specifically, he raises the following issues:

I. THE DEPARTMENT OF CORRECTIONS ENTRY OF ERRONEOUS INFORMATION, AS INTERPRETED, CREATES A (4) MONTH UNILATERAL ELEVATION OF APPELLANT'S MAXIMUM SENTENCE EXPIRATION DATE, VIOLATING DUE PROCESS AND THE EQUAL PROTECTION CLAUSE.

II. THE FINAL DECISION OF THE DEPARTMENT OF CORRECTIONS SHOULD NOT BE AFFIRMED BUT, DECIDED ON THE MERITS OF THIS APPEAL BECAUSE DEPARTMENT OF CORRECTIONS HAD AMPLE OPPORTUNITY ON SEVERAL OCCASIONS TO RECTIFY THE MATTER UNDER REVIEW AND FAILED TO DO SO, CHOOSING TO DISREGARD THE APPELLANT'S CASE UNDER REVIEW.

III. THE STATUTORY REGULATIONS AT ISSUE PROVIDE FOR THE RECEIPT OF SENTENCE REDUCING CREDITS FOR DILIGENT WORK PERFORMANCE AND ORDERLY CONDUCT, THEREBY, CREATING A LIBERTY INTEREST, AS A RESULT OF THE SENTENCE REDUCING CREDITS APPELLANT HAS AN EXPECTATION OF REDUCING HIS DURATION OF CONFINEMENT REMAINING TO BE SERVED, ON HIS PRISON SENTENCE.

IV. THE DEPARTMENT OF CORRECTIONS DECISION TO UNILATERALLY DEPRIVE THE APPELLANT SENTENCE REDUCING CREDITS, AS DIRECTED BY THE SUPERIOR COURT, IS UNLAWFUL, AS PROVIDED BY LAW.

After reviewing the record in light of the arguments advanced by the parties, we conclude that the issues presented by appellant are without sufficient merit to warrant discussion in a written opinion. Rule 2:11-3(e)(1)(D) and (E). Suffice it to say, the final administrative decision is supported by substantial, credible evidence in the record. See Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). We are satisfied that the DOC has properly calculated the credits in accordance with the controlling statutes and regulations particularly in view of the principle of administrative law requiring the court to accord considerable weight to the interpretation by an administrative agency of the statute and regulations it is charged with enforcing and implementing. See, e.g., In Re Pub. Serv. Elec. & Gas Co.'s Rate Unbundling, 167 N.J. 377, 384, cert. denied, Co-Steel Raritan v. N.J. Bd. of Pub. Utils., 534 U.S. 813, 122 S. Ct. 37, 151 L. Ed. 2d 11 (2001); Kasper v. Teachers' Pension & Annuity Fund, 164 N.J. 564, 580-81 (2000); Colantoni v. Bd. of Ed. of the Twp. of Long Hill, 329 N.J. Super. 545, 550 (App. Div. 2000). Further, a decision of an administrative agency carries with it a presumption of reasonableness, City of Newark v. Natural Resource Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980), and will not be upset absent a showing that it was arbitrary, capricious, or unreasonable, or that it violated legislative policies. In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, supra, 81 N.J. at 579-80; Campbell v. Department of Civil Serv., 39 N.J. 556, 562 (1963). Governed by these standards, we find no basis to disturb the result.

 
The administrative action calculating appellant's maximum release date is affirmed.

While appellant asserts that he worked in "detail 466" at South Woods State Prison from April 16, 2001 until March 10, 2002, his contention is not supported by the record. These credits are not reflected on his credit statement, nor do inmate pay records indicate that he was paid for this time. Appellant's progress notes indicate that he did not work during this period. Appellant, therefore, is not entitled to any work credits for the time spent on this detail.

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A-2324-05T2

December 12, 2006