MICHAEL ORTIZ v. NEW JERSEY STATE PAROLE BOARD

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4307-11T2

MICHAEL ORTIZ,

Appellant,

v.

NEW JERSEY STATE PAROLE

BOARD,

Respondent.

________________________________________________

June 6, 2013

Submitted May 21, 2013 Decided

Before Judges Harris and Hayden.

On appeal from the New Jersey State Parole

Board.

Michael Ortiz, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Michael Ortiz appeals from a final decision of the State Parole Board, dated December 13, 2011, regarding the calculation of his parole eligibility date. For the reasons that follow, we affirm.

We discern the following from the sparse record provided. On August 13, 2010, Ortiz received a sentence under Atlantic County Indictment 08-05-1206 (Atlantic Indictment) of a ten-year term of imprisonment with three years and four months parole ineligibility. He was awarded twenty-five days of jail credit. The same day, Ortiz received a sentence under Cape May County Indictment 08-12-0939 (Cape May Indictment) of "Credit [for] Time Served 765," concurrent with the sentence imposed under the Atlantic Indictment.

Based upon the mandatory-minimum term of three years and four months under the Atlantic Indictment, the Parole Board provided Ortiz with a parole eligibility date (PED) of November 17, 2013. Ortiz filed several administrative appeals, maintaining that the PED was incorrect. He contended that the 765 days applied to the "time served" sentence on the Cape May Indictment also should have been applied as jail credits to the mandatory-minimum sentence on the Atlantic Indictment. The Parole Board responded that jail credits are not aggregated from non-custodial terms. The Board also advised Ortiz to contact the sentencing judge to request an amended judgment of conviction reflecting the judge s intention that the Cape May jail credits apply to the Atlantic Indictment. Ortiz chose to pursue an internal Parole Board appeal.

A Board administrator issued the final Parole Board decision, which explained the grounds for the denial:

N.J.S.A. 30:4-123.51h provides that "when an inmate is sentenced to more than one term of imprisonment, the primary parole eligibility terms calculated pursuant to this section shall be aggregated by the board for the purpose of determining the primary parole eligibility date." It is noted that you are serving a single term of incarceration, specifically, a ten year term of incarceration with a forty-month mandatory-minimum on [Atlantic Indictment]. It is noted that the Judgment of Conviction issued on [Cape May Indictment] reflects that you were sentenced to "credit for time served" and does not reflect that you were sentenced to a term of imprisonment.

As noted above, the State Parole Board is authorized to aggregate parole eligibility terms derived from custodial sentences. As the sentence imposed on [Cape May Indictment] does not include a term of imprisonment, there is no "aggregation" for the purpose of calculating your parole eligibility date. Accordingly, as there is no aggregation of parole eligibility terms there is no aggregation of jail credits.

. . . .

If it is your expectation that you were to receive as part of the plea agreement the 765 days in question as additional jail credit on the sentence imposed on [Atlantic Indictment], then you should address the matter with the sentencing court. If an amended Judgment of Conviction is issued by the sentencing court awarding you the additional jail credit, the State Parole Board will update your parole eligibility date calculation accordingly.

On appeal, Ortiz raises the following contentions for our consideration:

POINT I - THE SAME DAY/SAME JUDGE SENTENCING STANDARD IDENTIFIES THE INTENT OF THE SENTENCING COURT TO EXERCISE ITS DISCRETION IN GRANTING THE APPELLANT THE JAIL CREDITS.

POINT II - THE PROCEDURES BEING UTILIZED BY THE N.J. STATE PAROLE BOARD DISREGARD THE DISCRETION OF THE SENTENCING COURT AND DEPRIVES THE DEFENDANT OF THE JAIL CREDITS GRANTED TO HIM.

POINT III - THE BOARD S DECISION TO NOT APPLY THE APPELLANT S JAIL CREDIT IS IN CONFLICT WITH ITS OWN POLICY AND PROCEDURES AS DESCRIBED IN N.J.A.C. 10A:71-3.2.

POINT IV - THE DENIAL AND FAILURE TO APPLY THE APPLICABLE JAIL CREDITS TO THE APPELLANT S PAROLE ELIGIBILITY, IN EFFECT, CONVERTS THE APPELLANT S JAIL CREDITS TO GAP TIME CREDITS.

We reject Ortiz s arguments as meritless and affirm the Board s final decision. R. 2:11-3(e)(1)(D). We add the following brief comments.

The issue before us is whether the Parole Board has the authority to change the amount of jail credits awarded on the sentence stemming from the Atlantic Indictment to include the jail credits awarded on a conviction for which Ortiz was not incarcerated.1 The Parole Board properly determined that Ortiz was only incarcerated on one sentence, for which he was awarded twenty-five days jail credit, and it could only calculate a parole eligibility date on that sentence. There is no dispute that Ortiz is not serving a sentence under the Cape May Indictment.

Here, the Board correctly determined that it is without authority to alter the jail credits attributable to Atlantic Indictment listed on the judgment of conviction. See Glover v. N.J. State Parole Bd., 271 N.J. Super. 420, 423 (App. Div. 1994) (holding that "the Parole Board s obligation is the administration of the parole process for each defendant but within the parameters of and in compliance with the terms of the sentence imposed by the trial court"). We find no authority for Ortiz s argument that the Parole Board could consider the jail credits on a conviction for which Ortiz is not serving time, absent the award of those credits by the sentencing judge. However, if Ortiz believes that the intent of the sentencing judge was to award him the Cape May jail credits for the Atlantic Indictment, he may seek to amend the judgment of conviction by filing a formal motion with the trial judge.

Affirmed.

1 We note that Ortiz was sentenced before our Supreme Court decided State v. Hernandez, 208 N.J. 24 (2011), which allowed jail credits to be applied to multiple indictments.