RICHARD LEHNER v. NEW JERSEY STATE PAROLE BOARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5388-08T1

RICHARD LEHNER,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

_______________________________

December 7, 2011

 

Argued October 5, 2011 - Decided

 

Before Judges Lihotz and St. John.

 

On appeal from New Jersey State Parole Board.

 

Louis N. Caggiano, Jr., argued the cause for appellant.

 

Christopher C. Josephson, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Josephson, on the brief).

 

PER CURIAM

Appellant Richard Lehner, a former New Jersey inmate, appeals the New Jersey State Parole Board's (the Board) May 20, 2009 decision, which affirmed a Board panel's denial of parole and established an eighteen-month future eligibility term (FET). Lehner's release on parole from South Woods State Prison on March 1, 2010, following the filing of his appeal, renders moot his challenge to the Board's prior denial of parole. See Cinque v. N.J. Dep't of Corr., 261 N.J. Super. 242, 243 (App. Div. 1993) ("[C]ourts will not decide cases in which the issue is hypothetical[.]" (quotation marks and citation omitted)).

Lehner's release, however, does not dispose of all issues raised on appeal, as he also contends he is entitled to jail credits resulting from time he was held by Arizona authorities enforcing a New Jersey detainer. We agree.

In 1987 and 1988, Lehner was convicted of a series of burglary and theft offenses set forth in four indictments issued in three counties.1 In 1987, he was sentenced to a five-year prison sentence as a youthful offender in Burlington County, and in 1988, to a consecutive five-year term of imprisonment for consolidated convictions in Burlington and Camden Counties. Lehner had been taken into custody on November 5, 1987, and released on parole on June 20, 1989. While still on parole, Lehner relocated to Arizona for employment opportunities, without first getting permission from his parole officer.

On May 17, 1991, parole warrant #06-2705 was issued for Lehner's arrest because he had violated the conditions of his parole. Sometime thereafter, this warrant was cancelled. Without evidentiary support, the Board insists the cancellation was inadvertent. A different parole warrant, #06-05652, was issued on August 27, 1997, more than a month after the expiration of Lehner's then maximum parole date of July 14, 1997. Lehner remained in Arizona for more than a decade. During this time, defendant claimed he "maintained gainful employment, greatly matured and became a law abiding citizen."

On December 21, 2004, Lehner was arrested in Phoenix, Arizona on drug possession offenses. Lehner certified he desired to post bail, but was told he could not be released from custody because of an outstanding New Jersey parole warrant. The Board lodged felony detainer out-of-state jurisdiction warrant OIS #12043 against Lehner on December 20, 2004, and preexisting warrant #B15-00473, dated June 26, 2004, was cancelled. The Board provides no information explaining the basis of parole warrant #B15-00473 or the disposition of warrant #06-05652, issued on August 27, 1997.

Lehner pleaded guilty to the Arizona charges on October 18, 2005. In accordance with the terms of the plea agreement, Lehner pleaded guilty to a charge of "attempted possession of marijuana for sale, a class 3 felony . . . committed on or about December 17, 2004[,]" for which he was sentenced to a three-year term of incarceration. Upon completion of his Arizona sentence on July 14, 2007, Lehner remained in custody until August 3, 2007, because of the New Jersey detainer.

Lehner was extradited to the custody of the New Jersey Department of Corrections and committed to the South Woods State Prison in Bridgeton. Following an administrative hearing, a two-member Board panel concluded Lehner violated the conditions of his parole. The panel revoked Lehner's parole, established a fourteen-month FET, and returned him to custody to serve the remaining portion of his original sentence of six years, one month, and twenty-nine days. His maximum release date was revised and is now listed as February 25, 2013.

Lehner timely appealed from the panel's decision. When no response was issued by the Board, Lehner filed an appeal with this court (Docket No. A-3716-07).2 Upon the Board's request, we granted a remand to allow it to consider Lehner's appeal from the panel's denial of parole. The Board affirmed the panel's decision. In follow-up correspondence, Lehner asserted several issues had not been addressed. The Board reviewed these issues relating to the denial of parole. In response to the contention that Lehner "[was] entitled to additional jail credits for the time . . . he was incarcerated in Arizona while awaiting sentencing for the 2004 out of state matter," the Board stated:

Upon review of the record, the full Board found that all court-awarded credit for time spent in custody, and applicable commutation credit, ha[d] been applied to your client's sentence. Therefore, the full Board found your contention on this matter is without merit. If you have an issue with the amount of jail credits awarded by the sentencing court, you should direct your concerns with that court. The [Board] does not have the authority to alter the amount of court-awarded jail credits.

 

Responding to Lehner's request for a "clarification concerning the specific nature and circumstances surrounding the inadvertent cancellation of the May 17, 1991 parole warrant and subsequent reissuance of the parole warrant in August 1997," and the contention that "[Lehner] [wa]s entitled to a documented explanation with regard to this issue beyond the assertion of a simple 'inadvertence[,]'" the Board stated:

Upon review of the record, it was found that the New Jersey Division of Parole issued a parole warrant on May 17, 1991, and your client was not returned to the custody of New Jersey until July 14, 2007, because of your client's incarceration in the State of Arizona. In addition, your client filed an appeal regarding the revocation matter on January 15, 2008, and the full Board affirmed the [panel's] determination to revoke his parole supervision status and establish a fourteen-month [FET]. Be advised this was a final agency decision and will not be considered in this current appeal.

 

On July 7, 2009, Lehner appealed from the final decision.

On this appeal, the Board also moved for a remand. We granted a limited remand, requiring the Board to issue its amended final order within forty-five days, and retained jurisdiction. The amended determination did not impact Lehner's request for jail credits.

Following the filing of this appeal, Lehner was paroled on March 1, 2010. The Board moved on two occasions to dismiss his appeal as moot. Lehner opposed dismissal, seeking review of the denial of his request for jail credits. We denied each of the Board's motions.

Lehner alleges the Board's determination was arbitrary and capricious because it failed to address the effect of the cancellation of parole warrant #06-2705 on his parole status and its impact on the maximum date of his accumulated sentence. Further, he seeks an adjustment to his awarded jail-time credits for the time he was kept incarcerated in Arizona because of the New Jersey detainer, necessitating his discharge from parole.

The scope of our review is limited. When reviewing the decision of a state agency, such as the Parole Board, we must determine whether the agency s findings "could reasonably have been reached on sufficient credible evidence" in the record. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (internal citations omitted). Generally, the actions of the Parole Board are presumed valid and reasonable, In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff d, 135 N.J. 306 (1994), as their decisions are considered "highly 'individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). We must affirm unless the determination by the Board "'went so far wide of the mark that a mistake must have been made.'" N.J. State Parole Bd. v. Cestari, 224 N.J. Super.534, 547 (App. Div.) (quoting 613 Corp. v. State of N.J., Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)), certif. denied, 111 N.J. 649 (1988). However, we are not "bound by the [Board's] interpretation of a statute or its determination of a strictly legal issue." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973). Like all matters of law, we undertake a de novo review to an agency's interpretation of a statute or case law. See Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002).

Rule 3:21-8 requires an award of jail credit for "'such confinement as is attributable to the arrest or other detention resulting from the particular offense.'" State v. Black, 153 N.J. 438, 456 (1998) (quoting State v. Allen, 155 N.J. Super. 582, 585 (App. Div.), certif. denied, 77 N.J. 472 (1978), overruled on other grounds, State v. Hernandez, 208 N.J. 24, 49 (2011)). "When the Rule [3:21-8] preconditions for the application of jail credits are satisfied, the award of such credits is mandatory, not discretionary." Hernandez, supra, 208 N.J. at 37.

Lehner's argument is based on the legal principle that

when a parolee is taken into custody on a parole warrant, the confinement is attributable to the original offense on which the parole was granted and not to any offense or offenses committed during the parolee's release. . . . If parole is revoked, then the period of incarceration between the parolee's confinement pursuant to the parole warrant and the revocation of parole should be credited against any period of reimprisonment ordered by the parole board. Any period of confinement following the revocation of parole but before sentencing on the new offense also should be credited only against the original sentence[.]

 

[Black, supra, 153 N.J. at 461.]

 

This principle also applies when a defendant has been incarcerated in another state. State v. Council, 137 N.J. Super. 306, 309 (App. Div. 1975); State v. Beatty, 128 N.J. Super. 488, 491 (App. Div. 1974).

The State argues Lehner is barred from proceeding on this issue following a Superior Court denial of his motion to modify his sentence. We disagree. We are aware the Criminal Division judge denied Lehner's motion for a modified sentence, R. 3:21-10, concluding the court lacked jurisdiction. The record does not contain the transcript of the previous Criminal Division motion. Likely, the order resulted because Lehner had included this issue in his appeal of the Board's parole decision, which was then pending before this court. Therefore, review is not precluded, and pursuant to Rule 3:21-10(b)(5), the court may correct a sentence not authorized by law at any time.

The facts in this limited record reflect Lehner was granted and would have posted bail after his Arizona arrest, but was told he could not be released on bail because New Jersey had interposed a detainer. Under these facts, Lehner's confinement was attributable to his New Jersey conviction, not his Arizona arrest.

We conclude Lehner is entitled to an examination whether he received full and proper credit for the period of incarceration in Arizona. Specifically, review must be made of whether Lehner received credit from the date of his Arizona arrest (December 21, 2004) to his Arizona conviction (October 18, 2005) because his confinement was attributable to the New Jersey detainer, a period of 302 days, and the period beginning from the date his Arizona sentence concluded (July 14, 2007) until he was extradited to New Jersey (August 3, 2007), a period of 21 days.3

Nevertheless, we do not agree the Board is charged with such reviewing authority. Jail credits are inherently part of the judiciary's sentencing function. Breeden v. N.J. Dep't of Corr., 132 N.J. 457, 469-70 (1993). The most sensible solution is for Lehner to move for a change in sentence to correct these errors. See also Hernandez, supra, 208 N.J. at 36-37.

There is another issue that requires the Board's action arising from circumstances surrounding the initial parole warrant, #06-2705. The State maintains Lehner is not entitled to any jail credits because he absconded from parole. See N.J.S.A. 30:4-123.65. This argument ignores the fact that the parole warrant was cancelled for several years.

In this somewhat muddled record, we are told parole warrant #06-2705 was cancelled, however, we are not told when or why. The record does not state whether the warrant was withdrawn or rescinded, which may affect the application of jail credits. N.J.A.C. 10A:71-7.20 provides:

(a) When a warrant for the arrest of a parolee is withdrawn, such warrant shall be immediately cancelled. Such cancellation shall not alter any forfeiture of time pursuant to N.J.S.A. 30:4-123.65.

 

(b) If the Board panel determines that a parole warrant was issued in error, upon withdrawal of such warrant the warrant shall be rescinded. Such rescission shall eliminate any forfeiture of time pursuant to N.J.S.A. 30:4-123.65.

 

Investigation of this matter is the responsibility of the Board and their determination affects the period of Lehner's parole, which, depending on the status of the warrant, may have ended. In its decision, however, the Board omitted discussion of this issue. We reverse on this issue and remand to the Board for its determination. Additionally, the Board is directed to specifically inform Lehner whether any jail credits were afforded for his confinement in Arizona to allow him to determine whether to pursue relief in the Superior Court. If the records are not clear, Lehner must be afforded all beneficial inferences. See State v. Buczkowski, 395 N.J. Super. 40, 45 (App. Div. 2007) ("The government must turn square corners in its dealings with the public." (quotation marks and citation omitted)).

D

ismissed in part, affirmed in part, reversed in part and remanded.

1 During this same time a separate accusation for theft by deception had also been issued.

2 During this period, Lehner filed a motion before the Criminal Part for a reduction or modification of his sentence, in which he raised the jail credit issue. The judge denied the motion concluding the court lacked jurisdiction. That order was not appealed.

3 On the latter issue, the Burlington County Prosecutor had asserted these credits were applied, however, there is nothing in the record to allow us to assess this assertion.