STATE OF NEW JERSEY v. JONATHAN THOMAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JONATHAN THOMAS,

Defendant-Appellant.

________________________________________________________________

January 11, 2017

Submitted July 12, 2016 Decided

Before Judges Carroll and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 00-01-0290.

Joseph E. Krakora, Public Defender, attorney for appellant (Jamie P. Clouser, Designated Counsel, on the brief).

Christopher S. Porrino, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

The opinion of the court was delivered by

ROTHSTADT, J.A.D.

Defendant Jonathan Thomas appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.

Defendant pled guilty in 2000 to one count of first-degree robbery, N.J.S.A. 2C:15-1, and one count of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). The court sentenced defendant to ten years imprisonment on the robbery conviction, subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a period of five years parole supervision after his release. On the aggravated assault conviction, the court sentenced defendant to a consecutive term of five years, also subject to NERA, and to a three-year period of parole supervision that was to be "consecutive to" the period imposed for robbery. Defendant did not file a direct appeal from his convictions or sentences.

The facts underlying defendant's convictions are not relevant to this appeal as the lynchpin to his contentions before the PCR court was the action taken by the New Jersey State Parole Board (Board) after his initial release from prison on June 26, 2012, when he violated the terms of his parole by being arrested in April 2013 on weapons charges. At that time, he was placed back in custody and after several adjournments, defendant appeared before a hearing officer who recommended to the Board that defendant's parole be revoked. The hearing officer noted that defendant would complete his eight-year period of parole supervision on June 26, 2020.

A Board panel reviewed the recommendation, and on July 9, 2014, adopted the hearing officer's recommendation, revoked defendant's parole, and established a fifteen-month future eligibility term (FET). Defendant filed an administrative appeal of that determination to the Board. While his appeal was pending, defendant filed his PCR petition with the Law Division on July 25, 2014.1

In his petition, defendant contended that he was challenging an illegal sentence and claiming ineffective assistance of counsel. At oral argument, Judge John Thomas Kelley summarized defendant's arguments on the record.2 The judge stated defendant argued that his sentence on his violation of parole was illegal because he was subjected to the "aggregate of both parole terms" as provided in his judgment of conviction. According to the judge, defendant's position was that "[t]he consecutive terms of parole supervision are an illegal sentence and should be concurrent," and the NERA provisions that the court applied to his sentence were fundamentally unfair because "under the pre-2001 amendment to NERA[, the] . . . statute [was] not uniformly applied." Judge Kelley also observed that defendant argued his trial counsel was ineffective "for failing to adequately challenge the consecutive nature of the parole terms . . . ."

After considering oral argument, the judge found defendant's petition was barred as untimely by Rule 3:22-12 as it related to his claim of ineffective assistance of counsel. The judge also found that defendant's challenge to his sentence was barred by Rule 3:22-4, which provides that matters that could have been raised on direct appeal are inappropriate for consideration through a PCR petition.

Judge Kelley also addressed defendant's substantive claim that being subjected to consecutive terms of parole supervision was illegal. Relying on the Court's opinion in State v. Friedman, 209 N.J. 102 (2012), the judge rejected defendant's contention, explaining that "two or more sentences running consecutive for purposes of incarceration also run consecutive for purposes of parole supervision." As a result, Judge Kelley held that defendant failed to prove his sentence was illegal or a prima facie case that his trial counsel was ineffective because he did not object to the consecutive periods of parole supervision.

Judge Kelley concluded by observing that to the extent defendant wanted to pursue a claim that the Board improperly imposed a period of parole ineligibility, defendant's recourse was through a direct appeal and not PCR. The judge denied defendant's request for an evidentiary hearing and entered an order denying his petition.

Defendant presents the following issues for our consideration in his appeal.

POINT I

THE DEFENDANT'S PRESENT CONTENTION CAN PROPERLY BE ADDRESSED ON ITS SUBSTANTIVE MERITS AS IF ORIGINALLY PURSUED ON DIRECT APPEAL

POINT II

THE PAROLE BOARD'S DECISION TO SUBJECT DEFENDANT TO AN [EIGHT] YEAR PAROLE VIOLATION SENTENCE, RATHER THAN A [FIVE] YEAR SENTENCE, IS UNLAWFUL BECAUSE DEFENDANT NEVER VIOLATED THE PAROLE TERM ON HIS SECOND CHARGE AS IT HAD YET TO COMMENCE

We find defendant's arguments to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Kelley in his comprehensive and thoughtful oral decision as placed on the record on May 29, 2015. Suffice it to say, defendant's claims were not appropriately raised through a PCR petition as they challenged the Board's determinations and not his convictions, R. 2:2-3(a)(2); see also Johnson v. N.J. State Parole Bd., 131 N.J. Super. 513, 515, 517 (App. Div. 1974), certif. denied, 67 N.J. 94 (1975); State, Parole Bd. v. McNair, 131 N.J. Super. 522, 526 (App. Div. 1974) (stating post-conviction relief "cannot be pursued when the objective is to review" the Board's actions), certif. denied, 67 N.J. 99 (1975), and, as Judge Kelley explained, there was no evidence his sentence was illegal. See Friedman, supra, 209 N.J. at 120.

Affirmed.

1 While defendant's appeal to the Board and PCR petition were pending, he again became eligible for parole. On September 19, 2014, the Board's panel recommended that defendant's second parole application be denied and established a twenty-three month FET. On November 26, 2014 and December 17, 2014, the Board issued written decisions adopting both of its panel's recommendations. Defendant filed appeals on December 2, 2014 and February 4, 2015, to this court, see Thomas v. N.J. State Parole Bd., A-2431-14 and A-2669-14, which we are simultaneously deciding today, affirming the Board's decisions.

2 The PCR judge noted that defendant's counsel filed a brief in support of the PCR petition. We have not, however, been provided with a copy of the brief.