RICHARD DIBENEDETTI v. NEW JERSEY DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1151-06T15954-05T5

RICHARD DIBENEDETTI,

Appellant,

v.

NEW JERSEY DEPARTMENT OF CORRECTIONS,

Respondent.

___________________________________

 

Submitted September 19, 2007 - Decided

Before Judges R. B. Coleman and Lyons.

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

Richard DiBenedetti, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General; of counsel; Keith S. Massey, Jr., Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Plaintiff Richard DiBenedetti (DiBenedetti) is an inmate currently incarcerated at Northern State Prison serving a thirty-year term with thirty-year parole ineligibility on convictions for murder and armed robbery. He has appealed the final agency decision of the Department of Corrections (DOC) denying him commutation and work credits so as to reduce his mandatory minimum term. We affirm.

The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal. On April 30, 1997, DiBenedetti pled guilty to murder, pursuant to N.J.S.A. 2C:11-3, and robbery, pursuant to N.J.S.A. 2C:15-1. On July 25, 1997, he was sentenced to a term of thirty years with thirty years to be served before becoming eligible for parole. Pursuant to Rule 3:21-8, DiBenedetti was entitled to and received 661 days of jail credit for time served in custody between arrest and the imposition of sentence. This credit reduced the time to be served in State prison to twenty-eight years and sixty-nine days.

Pursuant to N.J.S.A. 30:4-140, certain credits shall be remitted "upon any person committed to any State correctional institution for a minimum-maximum term." Based on the schedule set out in N.J.S.A. 30:4-140, DiBenedetti claims he would be entitled to have 3,658 commutation credits awarded.

On August 8, 2005, DiBenedetti submitted an inmate request form (IRF) requesting the award of his commutation and work credits. On the IRF, DiBenedetti stated:

I have a 30 year sentence without parole. I would like to have my work credits, and commutation credits awarded, so as I may reduce my maximum sentence. Could you please calculate my maximum sentence as to award me my legally entitled commutation and work credits.

The DOC denied this request on September 13, 2005, stating that although all of the credits have been recorded, DiBenedetti is serving a thirty-year sentence with thirty-year parole ineligibility period. Attached to the denial was a copy of DiBenedtti's "face sheet" report indicating that his credits have been calculated and recorded.

On January 17, 2006, DiBenedetti submitted an "administrative remedy form," appealing from the September 13, 2005 denial. DiBenedetti wrote that "[t]his is a final administrative appeal of a previous request . . . for all of my work and commutation credits unlawfully denied me." On February 16, 2006, the DOC staff responded, "Please review that attached face sheet. Your record does not indicate any disciplinary charges. Therefore, there is no commutation time to restore."

On appeal, appellant presents the following arguments for our consideration:

POINT I

THE DEPARTMENT OF CORRECTIONS HAS ILLEGALLY AND UNCONSTITUTIONALLY DENIED THE APPELLANT-PETITIONER HIS CONSTITUTIONAL RIGHT TO REDUCE HIS SENTENCE THROUGH COMMUTATION AND WORK CREDITS IN IT'S MISINTERPRETATION OF THE STATUTE.

POINT II

THE RETROACTIVE CANCELLATION OF APPELLANT-PETITIONER'S WORK AND COMMUTATION CREDITS IS AN EX POST FACTO VIOLATION OF THE UNITED STATES CONSTITUTION AND THE NEW JERSEY CONSTITUTION.

Jail Credit is mandatory and "allocable to any imposed period of parole eligibility." Pressler, Current N.J. Court Rules, comment 1.1 on R. 3:21-8 (2004). See State v. Grate, 311 N.J. Super. 456 (App. Div. 1998); R. 3:21-8 ("The defendant shall receive credit on the term of a custodial sentence for any time served in custody in jail . . . between arrest and the imposition of sentence."). DiBenedetti did properly receive 661 days of jail credit.

The statute under which DiBenedetti was sentenced, N.J.S.A. 2C:11-3, imposes a thirty-year mandatory minimum sentence for murder. N.J.S.A. 2C:11-3; Merola v. Department of Corrections, 285 N.J. Super. 501, 508 (App. Div. 1995), certif. denied, 143 N.J. 519 (1996). "[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." N.J.S.A. 30:4-123.51.

We have had the opportunity to squarely decide this issue in Merola. Merola, supra, 285 N.J. Super. 501. "A convicted murderer not sentenced to death must be sentenced to either thirty years of imprisonment or a term of incarceration between thirty years and life. In either instance, however, the murderer is not eligible for release from prison prior to thirty years of incarceration." Id. at 507. The Merola court found that, "[s]imply put, the New Jersey Code of Criminal Justice

. . . does not permit convicted murderers to receive any sentence less than thirty years of incarceration." Ibid.

"The Legislature has enacted unambiguous statutes prohibiting the reduction of mandatory minimum sentences through the application of commutation and work credits." Id. at 509. See N.J.S.A. 30:4-123.51. The Administrative Code reiterates this as well. Ibid. See N.J.A.C. 10A:9-5.1(a)(2), -5.2(c). "When an inmate is sentenced to a mandatory minimum term, any commutation and work credits earned will be awarded upon the expiration of the mandatory minimum term for application to the remainder of the sentence." Merola, supra, 285 N.J. Super. at 510.

Defendant's claim that he is entitled to be awarded his commutation and work credits against his minimum mandatory thirty-year sentence, therefore, is without merit and contrary to law.

DiBenedetti has properly received his jail credit. His commutation and work credits have been properly calculated and recorded. The commutation and work credits, however, are precluded by statutory and case law from being awarded to reduce his mandatory minimum sentence. Given his sentence, we recognize these credits may never be awarded. However, "[n]othing in the federal or State constitutions, the controlling legal opinions, or New Jersey statues or regulations entitle prison inmates to reduce the length of mandatory minimum sentence with commutation and work credits." Id. at 512.

We reject defendant's ex post facto claims raised in Point II as lacking sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(2).

Accordingly, we affirm.

It should be noted Merola v. Department of Corrections, 285 N.J. Super. 501 (App. Div. 1995), certif. denied, 143 N.J. 519 (1996), was decided on December 1, 1995, and the petition for certification was denied on February 21, 1996. DiBenedetti pled guilty on April 30, 1997, and was sentenced July 25, 1997.

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A-1151-06T15954-05T5

October 16, 2007