STATE OF NEW JERSEY v. RAUL FLORES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2342-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

RAUL FLORES,

Defendant-Appellant.

________________________________________________________________

SubmittedMay 3, 2011 Decided June 15, 2011

Before Judges Wefing and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 97-12-2206.

Raul Flores, appellant pro se.

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Raul Flores appeals from the denial of his third petition for post-conviction relief (PCR), claiming he was improperly denied work and commutation credits on the mandatory sentence of thirty years without parole he received for murder, N.J.S.A. 2C:11-3a(1), on July 31, 1998. After reviewing the record in light of the contentions advanced on appeal, we affirm.1

Defendant was convicted after a jury trial for a November 1995 murder and other related weapon possession offenses.2 Upon his appeal, we merged his conviction of possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d, into the murder conviction and affirmed. State v. Flores, No. A-444-98 (App. Div. Dec. 20, 1999), certif. denied, 165 N.J. 486 (2000). Defendant filed two PCR petitions, which were denied, and we affirmed both denials. State v. Flores, No. A-4509-04 (App. Div. Apr. 17, 2007), certif. denied, 192 N.J. 294 (2007); State v. Flores, No. A-5555-07 (App. Div. Mar. 31, 2009).

On appeal defendant raises the following argument,

THE RETROACTIVE CANCELLATION OF DEFENDANT'S WORK AND COMMUTATION CREDIT, AFTER THEY WERE ALREADY ENTERED ON HIS OFFICIAL CLASSIFICATION RECORDS, VIOLATES THE CONSTITUTIONS OF NEW JERSEY AND THE UNITED STATES

Defendant was sentenced in 1998, pursuant to N.J.S.A. 2C:11-3b, to "a term of 30 years, during which the person shall not be eligible for parole . . . ." Defendant acknowledges that the 1979 Parole Act prevents the deductions of credits from mandatory minimum sentences. N.J.S.A. 30:4-123.51. N.J.S.A. 30:4-123.51(a) states, in relevant part, "[c]ommutation and work credits shall not in any way reduce any judicial or statutory mandatory minimum term and such credits accrued shall only be awarded subsequent to the expiration of the term." The Administrative Code contains a similar provision, which provides: "Commutation credits are not awarded until after the expiration of the mandatory minimum portion of the sentence. When the mandatory minimum part of the sentence has been served, commutation credits are awarded on the full sentence." N.J.A.C. 10A:9-5.1(a)2. Defendant argues, however, that he was not sentenced to a thirty-year mandatory minimum.

We have stated that "[t]he use of the term 'not eligible for parole' in a sentencing statute unquestionably denotes a mandatory minimum sentence." Merola v. Dep't of Corr., 285 N.J. Super. 501, 507 (App. Div. 1995), certif. denied, 143 N.J. 519 (1996); see also State v. Webster, 383 N.J. Super. 432, 435-36 (App. Div. 2006), aff d o.b., 190 N.J. 305 (2007).

The month after the underlying murder we decided Merola, supra, which addressed the precise issue raised by defendant. Defendant argues that subsequent amendments to N.J.S.A. 2C:11-3b in 1997 and 2000 cast doubt on our 1995 decision in Merola, supra.

In 1997, the following language was added to N.J.S.A. 2C:3-11b, which enumerated the criteria for an individual not sentenced to death to be sentenced to a mandatory minimum sentence of either thirty years or life imprisonment: "The defendant shall not be entitled to a deduction of commutation and work credits from that sentence." In 2000, this language was deleted and N.J.S.A. 2C:3-11b(4) was added to read:

If the defendant was subject to sentencing pursuant to subsection C. [having been convicted of a murder eligible for the death penalty] and the jury or court found the existence of one or more aggravating factors, but that such factors did not outweigh the mitigating factors found to exist by the jury or court[,] or the jury was unable to reach a unanimous verdict as to the weight of the factors, the defendant shall be sentenced by the court to a term of life imprisonment during which the defendant shall not be eligible for parole.

The following language was added below this provision in a separate paragraph: "With respect to a sentence imposed pursuant to this subsection, the defendant shall not be entitled to a deduction of commutation and work credits from that sentence."

In effect, defendant argues that these statutory changes should be interpreted so that individuals sentenced to thirty years without parole for murder before 1997 and after 2000 should be entitled to a deduction of commutation and work credits from that sentence. No statutory language enacted or subtracted after his offense affects our understanding of defendant's sentence. He must serve thirty years in total, with no credits applied, before being eligible for parole.

With regard to defendant's claim that credits were "already entered on his official classification records," the February 3, 2009 East Jersey State Prison Face Sheet Report supplied by defendant does reflect original commutation time of 3745 days, lost commutation time of 30 days and work credits of 569.22 days, resulting in a total of 4284.22 days, or approximately 11.7 years. This form also shows both a minimum and maximum term of thirty years with April 1, 2027, as the release date for both. We do not conclude that this form in any way provides support for defendant's argument that he is entitled to a deduction of work or commutation time from his mandatory thirty-year sentence.

A

1 The State does not raise the timeliness of this application nor that defendant should have exhausted his administrative remedies through the Department of Corrections, so we do not address these issues. R. 3:22-4; R. 3:22-12(a)(2); R. 2:2-3.

2 Defendant indicates the murder was committed in November 1995. We are not able to independently verify the date, but the State does not dispute it.