IN RE APPEAL OF REVOCATION OF MANDATORY PAROLE SUPERVISION OF JAMES WILLIAMS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2691-05T52691-05T5

IN RE APPEAL OF REVOCATION OF

MANDATORY PAROLE SUPERVISION

OF JAMES WILLIAMS

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Submitted: November 28, 2006 - Decided December 12, 2006

Before Judges Kestin and Weissbard.

On appeal from the State Parole Board.

James Williams, appellant pro se.

Stuart Rabner, Attorney General, attorney for respondent State Parole Board (Patrick DeAlmeida, Assistant Attorney General, of counsel, Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

James Williams, also known as James Nesmith and by other aliases, appeals from a decision of the New Jersey State Parole Board revoking his post-release mandatory parole supervision term and requiring him "to serve the remainder of [his] mandatory parole supervision term in custody (4 years, 3 months, 3 days)." The Board found that Williams had "violated the conditions of [his] mandatory parole supervision period and therefore revocation is desirable." We conclude, on a basis not advanced by either party to the appeal, that the Board's ruling was grounded on misconceived premises. Accordingly, we reverse and remand to the Board for reconsideration of the matter with a correct view of the record.

The issues before us have their roots in a September 4, 1998 judgment of conviction and order of commitment disposing of charges arising from Camden County indictment number 729-02-98. That indictment charged Williams, under his James Nesmith alias, with two counts of first-degree robbery, as well as one second-degree crime, three third-degree crimes, and one fourth degree crime. The judgment/order memorialized a guilty plea on May 26, 1998, and a resulting judgment of conviction on one of the first-degree robbery charges, with dismissal of all other charges. Williams was sentenced to a six-year term of imprisonment with "parole ineligibility 85%", and "a five (5) year period of parole supervision [was] imposed." Jail credit for a total of thirty-one days was also provided.

Subsequently, an amended judgment/order was entered modifying the jail credit total to seventy-five days. That order repeated the terms of the prior order save one, omitting to include the specific provision for a five-year period of parole supervision. With the corrected jail credit applied to his six-year prison term, i.e., seventy-two months, the custodial maximum of Williams's sentence was 69.5 months. Eighty-five percent of that term would have been about fifty-nine months and two days.

On July 26, 2003, Williams was released on parole. He had served fifty-eight months and twenty-two days, which was ten months and twenty-three days short of the six-year maximum term as adjusted by the seventy-five day jail credit ultimately recognized. Therefore, Williams must be seen to have been on ordinary parole status for the latter period, until approximately June 19, 2004. Although the statutorily mandated five-year period of post-release parole supervision began at the time of his release on parole, see N.J.S.A. 2C:43-7.2c, the commencement of the statutory term cannot be seen as negating the fact that time still remained on the six-year sentence as imposed, in respect of which release must be seen as having been an exercise of ordinary parole discretion.

As is customary, Williams's parole was conditional. He was required, inter alia, to report to his parole officer and to be law abiding. On April 20, 2004, Williams failed to report as instructed and, on April 22, 2004, a parole violation warrant was issued. On March 20, 2005, Williams was arrested in Massachusetts on an assault and battery charge. He was convicted on that charge, sentenced to time served, and eventually returned to custody in New Jersey. Subsequently, on July 13, 2005, the order now appealed from was entered, purporting to revoke the remainder of the mandatory post-release parole supervision term. The order stated Williams's new "adjusted maximum date" as August 6, 2009.

On appeal, Williams argues that he was "never sentenced to a mandatory period of parole supervision." This assertion is manifestly incorrect. The initial judgment/order expressly contains such a provision. In the absence of a specific recitation by the trial court to the contrary, we take the omission of such a clause from the amended judgment/order, in the light of the initial provision and the mandatory nature of that sanction, to have been a clerical oversight. Williams also argues that the imposition of such a sanction is a violation of the protections against double jeopardy contained in the State and federal constitutions. Because we remand for reconsideration of the matter in the correct light, we do not address the latter question at this time.

When Williams violated the terms of his parole while still on ordinary parole status, the question to be resolved was what the sanction for that parole violation should have been. The Board erred in considering the matter as one bearing only upon the five-year period of parole supervision mandated by N.J.S.A. 2C:43-7.2c. Both Williams and the Board have presented this appeal on that erroneous premise. The matter should be reconsidered by the Board in the correct light. We express no view at this time of the effect, if any, of the parole violation on Williams's post-release parole supervision status when considered in the proper context.

Reversed and remanded for reconsideration.

 

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A-2691-05T5

December 12, 2006