BARRY DELEON v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4198-04T14198-04T1

BARRY DELEON,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

_______________________________________

 

Submitted March 29, 2006 - Decided April 17, 2006

Before Judges Parker and Grall.

On appeal from a Final Decision of the

New Jersey Department of Corrections.

Barry DeLeon, appellant pro se.

Zulima V. Farber, Attorney General, attorney

for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Barry DeLeon, an inmate at Northern State Prison, appeals from a final decision of the Department of Corrections denying his application for restoration of lost commutation time. N.J.A.C. 10A:9-5.5. Because the Department's interpretation of the regulation is consistent with its plain language and the determination that DeLeon is not eligible for restoration of additional credits is supported by the record and not arbitrary or capricious, we affirm.

The Department's interpretation of its regulation is central to the appeal. The pertinent sections of N.J.A.C. 10A:9-5.5(c) provide:

(c) . . . .

1. Up to 75 percent of the forfeited commutation credits may be restored to inmates over the three year period following the incident which resulted in the loss of commutation credits. The three years must run consecutively, calculated beginning with the date of the incident. Credits shall be restored at the rate of 25 percent for each year which is free of any disciplinary charges with a guilty finding, as follows:

i. If the inmate completes only one year without a charge which results in a guilty finding, he or she will have 25 percent of the forfeited credits restored at the completion of that year.

ii. If the inmate completes any two years of the three year period without a charge which results in a guilty finding, he or she will have 50 percent of the forfeited credits restored at the rate of 25 percent at the completion of each of the respective two years.

iii. If the inmate completes all three years without a charge which results in a guilty finding, the inmate will have 75 percent of the forfeited credits restored at the rate of 25 percent at the completion of each of the respective three years.

[Emphasis added.]

The relevant facts are undisputed. On March 27, 1997, DeLeon entered a plea of guilty and was sentenced to a term of incarceration. On July 12, 1999 he was found guilty of prohibited act *.206, "possession of money or currency ($50.00 or less) unless specifically authorized," contrary to N.J.A.C. 10A:4-4.1. The Department imposed a sanction of fifteen days detention and loss of sixty days of commutation credits.

Between July 12, 1999 and July 21, 2000, DeLeon was not found guilty of any other disciplinary charge. As a consequence of that year of good behavior, DeLeon was entitled to restoration of twenty-five percent of the sixty days of lost credits, pursuant to N.J.A.C. 10A:9-5.5(c)(1)(i).

Thereafter, DeLeon's sentence was modified by the court. On July 21, 2000, the trial court granted his motion for reconsideration and resentenced him to a five-year term of probation to permit his participation in an outpatient drug and alcohol program. On May 29, 2003, however, DeLeon pled guilty to a violation of that probationary term and was resentenced to a term of incarceration. On August 29, 2003, the Administrator approved restoration of fifteen days commutation credit for the period between July 1999 and July 2000, which was the period between DeLeon's disciplinary charge and his release on probation.

On September 8, 2003, DeLeon asked for a clarification of the calculation. He was granted an interview on September 26, 2003, during which the regulation was explained.

On June 7, 2004, DeLeon submitted another request for restoration of time lost as a result of his 1999 infraction. He contended that because he had not been found guilty of a charge since July 1999, he was eligible for restoration of additional credits. That request was denied on the ground that he was ineligible for additional credits because his charges had expired -- i.e., that more than three years had passed since the 1999 charge. N.J.A.C. 10A:9-5.5(c)(1).

In September 2004 DeLeon requested a variance from the standards for restoration of lost credits. In November 2004 he requested an interview to discuss his application for that variance. The variance was subsequently denied on the ground that his situation was not unique but was comparable to the circumstance of inmates returned to prison for violation of parole.

On February 17, 2005, DeLeon again invoked the administrative process to seek restoration of credits. On February 25, 2005, the decisions to deny relief pursuant to or by way of variance from the regulation were upheld. This appeal followed.

DeLeon raises the following issues:

I. THE REMAINING 30 DAYS LOCT, FORFEITED

COMMUTATION CREDITS[,] SHOULD BE

RESTORED TO THE APPELLANT-PETITIONER.

II. THE ADMINISTRATIVE CODE THAT REGULATES

THE RESTORATION OF FORFEITED

COMMUTATION CREDITS IS VAGUE AND

AMBIGUOUS AND MUST RECEIVE APPELLATE

REVIEW AS IT RELATES TO TOLLED

SENTENCES.

III. THE DENIAL OF THE VARIANCE WAS DONE IN

AN ARBITRARY MANNER THAT DID NOT FOLLOW

PROCEDURE.

Defendant also raises the following issue in his

reply brief:

I. THE FINAL DECISION OF THE DEPARTMENT OF

CORRECTIONS SHOULD BE REVERSED BECAUSE

THE STATUTE UPON WHICH THE RESPONDENT

BASES ITS DECISION IS VAGUE AND

AMBIGUOUS AND RESPONDENT DOES NOT

ADDRESS OR RESPOND TO THIS POINT IN

THEIR FILINGS.

The "decision of [the] agency is supported by sufficient credible evidence on the record as a whole" and "the arguments made are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(1)(D)-(E). We add a brief explanation for those conclusions.

We review agency decisions to determine whether the findings are supported by the record and give deference to the agency's interpretation of its regulations. Williams v. Dep't of Corr., 330 N.J. Super. 197, 203-04 (App. Div. 2000); see Wnuck v. New Jersey Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (discussing deference to an agency's interpretations). In this case, the agency's decision is based on a plain reading of a clear regulation. By its terms N.J.A.C. 10A:9-5.5(c) applies only to an "inmate [who] completes" one, two or three consecutive years "without a charge which results in a guilty finding." This rule of leniency rewards an inmate who remains free from infractions while incarcerated. It applies to "inmates," not to offenders who are released and the requirement of completion of "three consecutive" years without infraction in order to obtain three restorations of twenty-five percent each is not satisfied if there is a break in service.

The facts in this case are undisputed. The regulation is not vague or ambiguous. And, DeLeon's argument that the denial was arbitrary and not in accordance with procedure is based on his misreading of the reasons for the decision. The denial was not based on an erroneous belief that he was returned to prison after a parole violation. Rather, it is apparent that the decision explains that DeLeon's situation is not unique by analogizing his circumstance to that of an inmate who is returned after violation of parole. His argument to the contrary is neither persuasive nor grounded in the Department's regulations.

Affirmed.

 

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A-4198-04T1

April 17, 2006