STATE OF NEW JERSEY v. GREGORY TINDELL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4030-04T24030-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREGORY TINDELL,

Defendant-Appellant.

________________________________

 

Argued: May 2, 2006 - Decided May 22, 2006

Before Judges Skillman and Axelrad.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, 86-03-888.

Nancy C. Ferro argued the cause for appellant (Ferro and Ferro, attorneys; Gregory Tindell, pro se, on the brief).

Lisa A. Puglisi, Deputy Attorney General, argued the cause for respondent (Zulima V. Farber, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Ms. Puglisi, on the brief).

PER CURIAM

Gregory Tindell appeals from a March l5, 2005 order of the Law Division dismissing his application for post-conviction relief, challenging what he classifies as the Department of Correction's (DOC) "retroactive cancellation of his good time credits." Appellant argues that the matter should be remanded to the trial court for a full evidentiary hearing and, alternatively, that we should exercise original jurisdiction and decide the matter on the briefs. The DOC's calculation of appellant's sentence is a final decision of a state administrative agency appealable of right with the Appellate Division pursuant to Rule 2:2-3(a)(2). Accordingly, we will dispose of this appeal on the merits even though appellant brought this challenge in the wrong forum.

Appellant was convicted of murder and sentenced on December 19, 1986 pursuant to N.J.S.A. 2C:11-3b, which stated, at the time, if a person was convicted of murder and was not sentenced to the death penalty, he was to be sentenced "to a term of 30 years, during which the person shall not be eligible for parole or to a specific term of years which shall be between 30 years and life imprisonment of which the person shall serve 30 years before being eligible for parole." Tindell was sentenced to a forty-five-year term, of which the court found he must serve thirty years before becoming eligible for parole.

Appellant was awarded and received 327 days jail credits. He was also entitled to and received 6,692 commutation "good time" credits. The DOC had determined that appellant's term could not be reduced by commutation credits to earlier than the thirty-year mandatory minimum term, pursuant to N.J.S.A. 30:4-123.51. Accordingly, his "actual max" and "minimum expiration" date, after applying jail credits, was January 25, 2016. Appellant's position is that he is entitled to the benefit of all of the commutation credits applied against his forty-five-year sentence, which would reduce the maximum date of his sentence to October 3, 2012.

Appellant raises the same arguments that we rejected in Merola v. Dep't of Corr., 285 N.J. Super. 501 (App. Div. 1995), certif. denied, 143 N.J. 519 (1996). In Merola we held that the use of the term "not eligible for parole" in a sentencing statute such as N.J.S.A. 2C:11-3b, "unquestionably denote[d] a mandatory minimum sentence." Id. at 507. We further noted that the Legislature has enacted unambiguous statutes such as N.J.S.A. 30:4-123.51 clearly declaring that commutation credits cannot reduce statutorily imposed mandatory minimum sentences. Id. at 509-10. We also concluded that Merola had no statutory or constitutionally protected interest in reducing his thirty-year mandatory minimum sentence with the application of his commutation credits. Id. at 512-15.

We are not persuaded by appellant's argument that when we decided Merola subsequent to the imposition of his sentence, we overstepped our constitutional mandate by creating new law which effected a retroactive cancellation of his commutation credits, constituting an ex post facto application of a criminal sentencing statute and imposing greater punishment on him than he was subject to at the time of the murder. Merola merely interpreted statutes in effect on the date of the murder. It did not retroactively modify a criminal sentencing statute.

In essence, appellant is asking us to revisit the issues and no longer follow Merola. We are not persuaded by his arguments and decline to do so. See State v. Webster, 383 N.J. Super. 432 (App. Div. 2006) (commutation or work credits cannot be used to reduce an eighty-five percent period of parole ineligibility imposed pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2); Salvador v. Dep't of Corr., 378 N.J. Super. 467 (App. Div.), (commutation credits cannot be used to reduce a period of parole supervision under NERA), certif. denied, 185 N.J. 295 (2005); Meyer v. N.J. State Parole Bd., 345 N.J. Super. 424 (App. Div. 2001) (gap-time credits cannot be used to reduce a period of parole ineligibility under NERA), certif. denied, 171 N.J. 339 (2002).

 
Affirmed.

(continued)

(continued)

4

A-4030-04T2

May 22, 2006