JAMES E. McILHENNY v. NEW JERSEY DEPARTMENT OF CORRECTIONS.

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4195-04T1 4195-04T1

JAMES E. McILHENNY,

Petitioner-Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS.

Respondent-Respondent.

_________________________________________________

 

Submitted March 28, 2006 - Decided

Before Judges Skillman and Payne.

On appeal from a Final Decision of the New

Jersey Department of Corrections.

James E. McIlhenny, appellant, pro se.

Zulima V. Farber, Attorney General, attorney

for respondent (Patrick DeAlmeida, Assistant

Attorney General, of counsel; Christopher C.

Josephson, Deputy Attorney General, on the

brief).

PER CURIAM

Petitioner James McIlhenny, sentenced in 1988 to a term of life imprisonment subject to a thirty-year period of parole disqualification for felony murder, challenges in this appeal the determination of the Department of Corrections that his commutation, work and minimum custody credits cannot be applied to reduce the period of his parole ineligibility, claiming the determination violates the ex post facto and equal protection clauses of the United States Constitution. The identical legal position was expressed by appellant in Mendez v. Dept. of Corrections, Docket No. A-4226-04T1, which we decide simultaneously with this case, and in the same fashion.

We have fully addressed and rejected the arguments made by petitioner as they relate to the application of commutation, work and minimum custody credits to his period of parole ineligibility in our decisions in Merola v. Dept. of Corrections, 285 N.J. Super. 501 (App. Div. 1995), certif. denied, 143 N.J. 519 (1996) and, in the context of the No Early Release Act, N.J.S.A. 2C:43-7.2, in our recent decision in State v. Webster, ___ N.J. Super. ___ (App. Div. 2006). We thus find those arguments to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

However, we note that the decision of the Department of Corrections states that the subject credits would not be applied to reduce appellant's life sentence. We reject that position. N.J.S.A. 30:4-123.51(b) provides in pertinent part:

Each adult inmate sentenced to a term of life imprisonment shall become primarily eligible for parole after having served any judicial or statutory mandatory minimum term, or 25 years where no mandatory minimum term has been imposed less commutation time for good behavior and credits for diligent application to work and other institutional assignments.

The State has advanced no argument that would demonstrate the inapplicability of this statutory provision to petitioner, and we are aware of none. The portion of the Department's decision that suggests otherwise is therefore reversed.

 
Affirmed in part; reversed in part.

Petitioner captions his argument as follows:

THE DEPARTMENT OF CORRECTIONS RETROACTIVE REFUSAL TO APPLY CREDITS TOWARDS REDUCING APPELLANT'S CUSTODIAL SENTENCE IS IN VIOLATION OF THE EX POST FACTO AND EQUAL PROTECTION CLAUSES OF THE U.S. CONST. AMDT. 14.

(continued)

(continued)

3

A-4195-04T1

April 17, 2006

 


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