JAMES DAVIS v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5023-05T35023-05T3

JAMES DAVIS,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

_______________________________________

 

Submitted February 7, 2007 - Decided March 14, 2007

Before Judges Wefing and Yannotti.

On appeal from a Final Decision of the New Jersey Department of Corrections.

James Davis, appellant pro se.

Stuart Rabner, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Lisa A. Puglisi, Deputy Attorney General, on the brief).

PER CURIAM

Appellant James Davis (Davis) appeals from a final determination of the New Jersey Department of Corrections (DOC), dated May 1, 2006, concluding that Davis' maximum release date is January 13, 2008. For the reasons that follow, we affirm.

This appeal arises from the following facts. On April 16, 1999, Davis pled guilty to three counts of second-degree robbery, contrary to N.J.S.A. 2C:15-1a. Defendant was sentenced to three, concurrent, ten-year terms of incarceration, each with a five-year period of parole ineligibility. The judge granted Davis 183 days of jail credit.

On January 24, 2004, while serving his sentences, Davis escaped from a halfway house. He was later apprehended in New York, charged and convicted of grand larceny in that state, and sentenced to a three-year term of incarceration. Davis thereafter was charged in New Jersey with escape, contrary to N.J.S.A. 2C:29-5a. On August 30, 2004, Davis pled guilty to the escape charge.

At the plea hearing, the assistant prosecutor asserted that, as part of the plea agreement, the State would recommend that Davis be sentenced to three years of incarceration "concurrent to two other sentences" that Davis was "currently serving; one in New York, one in New Jersey." Davis's attorney stated that he had reviewed the plea form with Davis. Defense counsel said that he was satisfied that Davis had voluntarily waived his rights.

Davis informed the judge that he had gone over "everything carefully" with his attorney and said that he was satisfied with the advice he had been given. Davis additionally commented:

Just like to state on the record, as [defense counsel] already stated, once again that the agreement as I understand it is the charge will run concurrent with my New York sentence under Inmate Number 04A246A, which I'm presently serving; and the New Jersey sentence under Inmate Number 3107721, I'm presently serving, also.

The judge replied, "That is correct, Mr. Davis." The judge added that the "sentence is to run concurrent to those two sentences." Davis provided the judge with the factual basis for his plea and asked to be sentenced in absentia. The judge accepted the plea and agreed that Davis did not have to be present for his sentencing.

Davis was accordingly sentenced to a term of three years of incarceration. The judgment of conviction states that Davis's sentence was concurrent to the 1999 New Jersey sentence and the 2004 New York sentence. The judge awarded Davis 59 days of jail credits for the period from August 30, 2004, to October 27, 2004.

It appears that Davis subsequently was paroled by New York. He was returned to DOC custody on March 15, 2006. The DOC thereafter determined that Davis's maximum release date is January 13, 2008; however, Davis questioned the accuracy of the DOC's calculation. The DOC responded to Davis's inquiry in a letter dated April 18, 2006. The DOC explained that Davis's three-year custodial sentence imposed in 2004 for escape had been absorbed into the ten-year sentence for robbery imposed in 1999. The DOC thus found that the 1999 sentence was the "controlling sentence."

According to the DOC's calculation, the 1999 ten-year sentence expired on April 15, 2009, from which jail credits were deducted, leaving a "flat max expiration" date of October 15, 2008. The DOC then subtracted an additional 936 days for commutation credits, which resulted in a "max date" of March 24, 2006. The DOC added 784 days for the period that Davis was absent from DOC custody. The DOC deducted 247.8 days for work credits, as well as 126 days of minimum credits, and added 250 days in lost commutation credits for the escape. This resulted in the "actual max" date of January 13, 2008.

Davis thereafter wrote to the Commissioner of the DOC and questioned the accuracy of the determination of his maximum release date. Davis's inquiry was referred to Cindy Ford (Ford) in the Division of Operations, and Ford responded in a letter dated May 1, 2006, reaffirming the determination that Davis's "max date" is January 13, 2008. This appeal followed.

Davis raises the following contentions for our consideration: 1) the DOC violated his constitutional and statutory rights by allowing its administrative policy to supersede a court order directing that his interrupted 1999 sentence run concurrent with the 2004 sentence and the sentence he was serving in New York; 2) the DOC's refusal to grant him credits against the 1999 sentence for the time served in New York violated the plea agreement, his right to due process and other constitutional rights; and 3) the failure of the DOC to properly compute his sentence has resulted in his being incarcerated beyond the maximum expiration date of both New Jersey sentences, in contravention of his right to due process and to be free of cruel and unusual punishment.

The scope of our review of a final decision of an administrative agency is strictly limited. George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994) (citing Gloucester County Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390 (1983)). Our review is restricted to four inquiries: 1) whether the agency's decision is contrary to the State or Federal Constitution; 2) whether the agency's action violates either express or implied legislative policies; 3) whether there is substantial credible evidence in the record as a whole to support the agency's decision; and 4) whether, in applying the law to the facts, the agency clearly erred in reaching a decision that could not reasonably have been made on consideration of the relevant factors. Ibid. Having carefully considered the record in light of this standard of review, we are convinced that the DOC's determination must be affirmed.

As the DOC correctly found, Davis's three-year sentence for escape was absorbed into the longer sentence imposed in 1999 and, therefore, the 1999 sentence is the controlling sentence for purposes of determining Davis's maximum release date. The record does not support Davis's contention that the DOC's determination impermissibly supersedes a court order mandating that the 1999 sentence run concurrent with the New York sentence. The judgment of conviction entered in 2004 does not state that the 1999 sentence is to run concurrently with Davis's New York sentence. Moreover, the judgment of conviction entered in 1999 was never explicitly amended or modified to require that the sentences imposed pursuant to that judgment were to run concurrent with any other sentence.

Furthermore, the DOC correctly determined that Davis is not entitled to credit against the 1999 sentence for the time he spent serving his New York sentence. Davis's service of the 1999 sentence was suspended when he escaped from the halfway house. Indeed, it has been held that, "[a]s a matter of common law, constitutional law, and common sense, a prisoner is not entitled to credit on his sentence for those periods when he willfully and voluntarily absents himself from prison without authorization." Breeden v. N.J. Dept. of Corr., 132 N.J. 457, 464 (1993) (quoting Woods v. Steiner, 207 F. Supp. 945, 953 (D. Md. 1962)). Accordingly, Davis's service of the 1999 sentences did not commence again until he was returned to DOC custody on March 15, 2006.

Davis argues, however, that he should be given credit for the time he served in New York because his three-year sentence for escape runs concurrently with the 1999 New Jersey sentence and the 2004 New York sentence. We disagree. The 2004 judgment of conviction does not explicitly provide for such credits. The judgment merely provides that the 2004 New Jersey sentence would run concurrently with the New York sentence and the previously imposed New Jersey sentence.

Davis's 2004 New Jersey sentence was, in fact, served concurrently with those other sentences. The time served in New York was credited against the 2004 New Jersey sentence. Furthermore, after Davis was returned to DOC custody on March 15, 2006, the 2004 New Jersey sentence was served concurrently with the 1999 sentence, until Davis reached the "max date" on the 2004 New Jersey sentence, which occurred on or about August 27, 2007.

Davis additionally argues that the DOC erred by failing to grant him work credits earned while he served his New York sentence. In support of this contention, Davis relies upon our decision in Van Winkle v. N. J. Dept. of Corr., 370 N.J. Super. 40 (App. Div. 2004), where we held that a New Jersey inmate, who was incarcerated in Pennsylvania while serving concurrent sentences, could not be denied work credits earned in Pennsylvania. Davis's reliance upon the Van Winkle decision is misplaced. Under the reasoning of Van Winkle, the credits that Davis earned while serving his New York sentence could be applied to his 2004 New Jersey sentence because that sentence was concurrent to the New York sentence. However, Davis was not entitled to credits against the 1999 sentence because, according to the 1999 judgment of conviction, that sentence did not run concurrent with the New York sentence.

Davis further contends that he would not have pled guilty to the escape charge if he thought that the time served in New York would only be applied to the escape sentence and not the sentences imposed in 1999 for robbery. However, the plea agreement does not state that the time served in New York would be credited against his 1999 sentence. The plea agreement merely indicates that the 2004 New Jersey sentence would be concurrent with the New York sentence and the previously imposed New Jersey sentences. The discussion at the plea hearing is consistent with the plain language of the agreement. Moreover, as we have stated, the 2004 sentence was, in fact, served concurrently with those other sentences.

Although we are convinced that the DOC correctly calculated Davis's sentence based on the plain language of the judgments of conviction, our decision is not meant to preclude Davis from seeking relief in the trial court, with notice to the prosecutor, based on his claim that it was his understanding when he entered his plea that the time served in New York would be applied not only to his 2004 sentence but also to his 1999 sentence. Cf. Breeden, supra, 132 N.J. at 470 (holding that a prisoner could seek credits against a New Jersey sentence for time served in another jurisdiction by means of an application for a change of sentence). As we have indicated, the record before us does not support Davis's contention; however, Davis may be able to muster additional factual support for his assertions. Defense counsel and the assistant prosecutor also may be able to shed some light on the intent and the understanding of the parties when they entered into the plea agreement on the escape charge in 2004.

Affirmed.

 

(continued)

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9

A-5023-05T3

March 14, 2007