STEWART WILSON v. NEW JERSEY STATE PAROLE BOARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6612-04T56612-04T5

STEWART WILSON,

Petitioner-Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent-Respondent.

 

Submitted May 23, 2006 - Decided June 22, 2006

Before Judges Hoens and Seltzer.

On appeal from the New Jersey State Parole Board.

Stewart Wilson, 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

Stewart Wilson, an inmate at East Jersey State Prison, appeals from the final agency decision of the New Jersey State Parole Board denying his application for a change in calculations concerning his eligibility for parole. We affirm.

The record reveals that Wilson was sentenced on January 4, 1978 to a term of imprisonment of twenty-eight to thirty-five years for crimes the specifics of which are not germane to this appeal. Beginning on November 9, 1992 and continuing until December 1, 1998, Wilson was paroled on four separate occasions. In March 1994, January 1997, June 1997 and March 2000, his parole was revoked. Following the last of these parole revocations, he was returned to prison to serve the remainder of the original term from 1978, which then totaled fourteen years, three months and thirty days.

On May 5, 2000, Wilson was sentenced on charges arising out of two incidents. First, he was sentenced to a term of four years, to be served concurrent with the parole violation term, for the charge of third-degree taking a motor vehicle without consent, N.J.S.A. 2C:20-10c, as set forth in a February 28, 2000 accusation. Second, he was sentenced on two counts of third-degree burglary, N.J.S.A. 2C:18-2a(1), charges that were included in an October 1999 indictment. According to the latter judgment of conviction, Wilson was sentenced to a term of four years on each of the burglary counts to run concurrently with each other, concurrently with the sentence imposed for the offense included in the February 2000 accusation, and concurrently with the parole violation term.

In addition, on March 2, 2001, Wilson was sentenced in accordance with a guilty plea on three counts of third-degree burglary, N.J.S.A. 2C:18-2, and three counts of third-degree theft of movable property, N.J.S.A. 2C:20-3a, which were charges included in a June 2000 indictment. At that time, he was sentenced on each count to a term of four years of imprisonment, two to be served without parole. Each of these sentences was also imposed to be served concurrent with each other, concurrent with the May 5, 2000 sentences and concurrent with the parole violation term.

On November 25, 2002, Wilson was denied parole and the Parole Board fixed a thirty-two-month future eligibility term (FET). Wilson did not challenge the denial of parole. Rather, beginning in December 2004, he challenged the Board's calculation of his parole eligibility date (PED). More particularly, on December 11, 2004, he filed an administrative remedy form asserting that he was "far past due" for consideration for parole, based on his calculation of the PED, and that his "max date" as calculated by the Board was also inaccurate. In response, he was advised that his PED was November 2005 and he was provided with an explanation of the calculation.

On February 23, 2005, Wilson filed another request, again contending that he was then "nearly two (2) y[ea]rs past due for [a] parole hearing." He was again provided with a written response explaining the calculations and the PED. Finally, although it is not entirely clear whether he had received the response to his February request at the time, on March 3, 2005, Wilson filed another request, asserting that he had completed serving the FET and was entitled to a parole hearing. He was again advised that his PED was November 1, 2005 and he was again provided with an explanation. Thereafter, in anticipation of the November 1, 2005 date, he was considered for parole again, which was denied on August 1, 2005. At that time, a further twenty-seven month FET was fixed.

Wilson asserts on appeal that the Parole Board has erred in its calculations. In particular, he argues that the Parole Board has "refused to honor" the May 2000 and March 2001 judgments of conviction, has incorrectly calculated his PED and has failed to award him credits toward his FET to which he is entitled. Our analysis of the entire record compels us to conclude that each of these arguments is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, because Wilson's arguments are based on a mistaken analysis of his several convictions and of the manner in which his PED, his FET, and the credits for which he is eligible have been calculated, we deem it appropriate to offer the following observations.

At the time of his May 2000 convictions, Wilson was serving the remaining portion of the 1978 sentence, then in excess of fourteen years. His argument about his "max date," which is based only on his calculations relating to the 2000 and the 2001 convictions, overlooks the fact that his parole violation term will not be completed until April 15, 2013. Second, his argument concerning his PED overlooks the fact that his March 2, 2001 sentence included the imposition of a two-year parole disqualifier. The effect of that aspect of the 2001 sentence was to extend his PED for a period of two years after that sentence was imposed, making March 1, 2003 his earliest PED. Therefore, when the November 2002 FET was imposed, it began to run as of that PED and not, as Wilson apparently believes, any earlier. See N.J.A.C. 10A:71-3.2(c)8. That FET, therefore, resulted in a new PED of November 1, 2005 as he was, correctly, advised. Therefore, in December 2004, in February 2005 and in March 2005, when Wilson filed his administrative remedy forms and demanded a parole hearing, he did so based on erroneous assumptions concerning not only the PED and the FET calculations, but the applicable "max date" as well. The explanations he received in response to his requests were entirely accurate, as were the Parole Board's calculations of the applicable dates and time frames.

In addition, Wilson argues on appeal that he was entitled to receive credits toward his FET, contending that because his original sentence was imposed for offenses predating the September 1, 1979 effective date of the Code of Criminal Justice (the so-called "2A offenses"), see N.J.S.A. 2A:151-5 (robbery); N.J.S.A. 2A:90-1 (atrocious assault and battery); N.J.S.A. 2A:105-3 (threat to take life), he is not subject to the provisions of the Parole Act of 1979, N.J.S.A. 30:4-123.45 to

 
-123.76. Our review of the record demonstrates that the FET as to which no credits were permitted arose in connection with the sentences imposed in 2000 and 2001, each of which was appropriately considered in accordance with the 1979 Parole Act. See N.J.S.A. 30:4-123.53a. As a result, defendant was not entitled to receive credits toward the reduction of the FET imposed in November 2002. See N.J.A.C. 10A:71-3.2(h)3(i). In fact, the record also reveals that because the FET imposed in August 2005 relates solely to the parole violation term and therefore relates only to the 1978 sentence, it will be subject to reduction commencing as of November 1, 2005.

Affirmed.

(continued)

(continued)

6

A-6612-04T5

June 22, 2006