Abdiel Avila v. State of New Jersey, Department of Corrections

NOT FOR PUBLICATION WITHOUT APPROVAL OF

THE TAX COURT COMMITTEE ON OPINIONS

TAX COURT OF NEW JERSEY

Patrick DeAlmeida R.J. Hughes Justice Complex

Presiding Judge P.O. Box 975

Trenton, New Jersey 08625-0975

(609) 292-8108 Fax: (609) 984-0805

July 31, 2013

Abdiel F. Avila

SBI #788891C

New Jersey State Prison

P.O. Box 861

Trenton, New Jersey 08625

Thu N. Lam

Deputy Attorney General

Division of Law

R.J. Hughes Justice Complex

P.O. Box 106

25 Market Street

Trenton, New Jersey 08625-0106

Re: Abdiel Avila v. State of New Jersey, Department of Corrections

Docket No. 019590-2012

Dear Mr. Avila and DAG Lam:

This letter constitutes the court s opinion with respect to defendant Director, Division of Taxation s cross-motion to dismiss the Complaint for want of jurisdiction. For the reasons stated more fully below, defendant s motion is granted and the Complaint against all defendants will be dismissed. Plaintiff asks this court to release him from incarceration and vacate fines and penalties imposed on him by the Superior Court as a result of his conviction for numerous sexual offenses against a child. Plaintiff s claims are wholly outside the jurisdiction of this court.

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I. Findings of Fact

The following findings of fact are based on the pleadings and written submissions of the parties.

Plaintiff Abdiel F. Avila is an inmate assigned to the custody of the Commissioner of the Department of Corrections and housed at New Jersey State Prison.

On March 25, 2009, Avila was convicted in Superior Court of two counts of first degree aggravated sexual assault and two counts of second degree endangering the welfare of a child.

On June 25, 2009, the Hon. Lee A. Solomon, J.S.C., sentenced Avila as a persistent offender to an aggregate term of 95 years of incarceration. According to the No Early Release Act, N.J.S.A. 2C:43-7.2, Avila must serve 85% of his sentence, or more than 80 years, before becoming eligible for parole. Upon his release from imprisonment, should that event ever come to pass, Avila must comply with all registration requirements of Megan s Law and will be subject to parole supervision for life.

In addition, Judge Solomon imposed various fines and penalties on Avila. This aspect of plaintiff s sentence includes fines and penalties for the Victims of Crime Compensation Board, the Safe Neighborhoods Services Fund, the Law Enforcement Officers Training and Equipment Fund, the Sex Crime Victim Treatment Fund, the Statewide Sexual Assault Nurse Examiners program, and a Sexual Offender s Surcharge. All fines and penalties were transferred to the Department of Corrections for collection as part of any parole which may be granted.

On April 18, 2011, the Superior Court, Appellate Division, affirmed plaintiff s convictions and sentence. State v. Avila, 2011 N.J. Super. Unpub. LEXIS 968 (App. Div.), certif. denied, 2 011 N.J. LEXIS 1167 (2011).

On January 28, 2013, plaintiff filed a Complaint in this Court naming the State of New Jersey, Department of Corrections as a defendant. The Complaint demands that the fines and penalties imposed on plaintiff as a result of his criminal conviction be vacated. In addition, plaintiff s Proposed Judgment submitted along with this Compliant seeks an Order releasing plaintiff from prison and directing the Department of Corrections to give plaintiff release clothing and travel provisions and to package and mail all of plaintiff s personal property to his next of kin.

During the pendency of this matter, plaintiff filed numerous documents seeking various forms of relief including a Notice of Claim, Notice of Exemptions Claimed, Notice of Deficiencies, Judicial Notice, Jurisdictional Statement, Motion for Failure to Appear, Application for Orders to Show Cause, Motion to Issue Orders to Show Cause, Notice and Demand, Amended Proposed Judgment, numerous Cancellation of Debt forms, Order to Show Cause, Certification of No Objection Regarding Motion to Issue Orders to Show Cause, and Motion for Joinder of Additional Party. In addition, plaintiff has submitted numerous public record requests to the court seeking printed copies of the court s docket for this matter.1 All of plaintiff s filings in one way or another relate to the fines and penalties imposed on him as a result of his criminal convictions and/or seek his release from incarceration.

On June 13, 2013, the Director, Division of Taxation opposed plaintiff s various applications for relief and cross-moved in lieu of answer to dismiss the Complaint for want of jurisdiction. Although the Director is not named in the Complaint as a defendant, he was served with a copy of the Complaint. Because the court determines that it lacks jurisdiction over any of the claims raised by plaintiff, the court, sua sponte, dismisses the Complaint against all defendants. See R. 4:6-7 ( Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the matter . . . ."); Caine v. Anchor Petroleum Co., 65 N.J. Super. 271, 274 (App. Div. 1961))( [A] court should dismiss for lack of jurisdiction whenever, at any stage of the proceedings, it is satisfied from the facts then of record that jurisdiction is absent. ).

II. Conclusions of Law

This court was established in 1979 for the purpose of adjudicating tax and tax-related matters. See N.J.S.A. 2A:3A-1 (repealed by L. 1993, c. 74, 3, re-codified as N.J.S.A. 2B13-1 to -15); see also Farrell v. City of Atlantic City, 10 N.J. Tax 336, 342-43 (Tax 1989). As our Supreme Court recently reiterated, the Tax Court is vested with limited jurisdiction defined by statute. McMahon v. City of Newark, 195 N.J. 526, 546 (2008)(citing N.J.S.A. 2B:13-2 and Union City Assocs. v. City of Union City, 115 N.J. 12, 23 (1989)). The statutory scheme establishing this court s jurisdiction is one with which continuing strict and unerring compliance must be observed . . . . McMahon, supra, 195 N.J. at 543. The court may exercise only that jurisdiction which the Legislature has conferred to it. DSC of Newark Enterps. v. Borough of South Plainfield, 17 N.J. Tax 510 (1997), aff d, 17 N.J. Tax 507 (App. Div. 1998). This court has jurisdiction to determine its jurisdiction. American Trucking Ass ns v. State, 324 N.J. Super. 1 (App. Div. 1999), rev d on other grounds, 180 N.J. 377 (2004).

Tax Court jurisdiction is established in N.J.S.A. 2B:13-2 as follows:

a. The Tax Court shall have jurisdiction to review actions or regulations with respect to a tax matter of the following:

(1) Any State agency of official;

(2) A county board of taxation;

(3) A county or municipal official.

b. The Tax Court shall have jurisdiction over actions cognizable in the Superior Court which raise issues as to which expertise in matters involving taxation is desirable, and which have been transferred to the Tax Court pursuant to the Rules of the Supreme Court.

c. The Tax Court shall have jurisdiction over any other matters as may be provided by statute.

d. The Tax Court jurisdiction shall include any powers that may be necessary to effectuate its decisions, judgments and orders.

Plaintiff claims that the fines and penalties imposed on him as a result of his criminal convictions are taxes within the meaning of N.J.S.A. 2B:13-2, creating jurisdiction in this court to review and vacate those fines and penalties. Plaintiff s position is entirely lacking in merit and finds no support in law or logic.

A tax is imposed by the government for general revenue purposes. New Life Gospel Church v. Department of Community Affairs, 257 N.J. Super. 241, 245-246, certif. denied, 133 N.J. 429 (1992). If the primary purpose of the assessment is to raise revenue for general purposes, the assessment is a tax. Holmdel Builders Ass n v. Township of Holmdel, 121 N.J. 550, 582 (1990)(citing Daniels v. Borough of Point Pleasant, 23 N.J. 357 (1957)).

The fines and penalties imposed on plaintiff as a result of his criminal convictions are not taxes. They are sanctions for criminal behavior imposed by the Superior Court in accordance with Title 2C. The fines and penalties, if ever collected from plaintiff, are not designed to raise revenue for general purposes, but are intended for use to ameliorate the costs and effects of the criminal activity in which plaintiff engaged. See N.J.S.A. 2C:43-3.1a(4)(detailing use of funds collected by Victims of Crime Compensation Board to satisfy claims of crime victims and for other purposes for the benefit of crime victims and witnesses of crime); N.J.S.A. 52:17B-163b (amounts deposited in Safe Neighborhoods Services Fund to be used for law enforcement projects and equipment); N.J.S.A. 2C:43-3.3c (penalties collected for deposit in Law Enforcement Officers Training and Equipment Fund shall be used to support the development and provision of basic and in-service training courses for law enforcement officers by police training schools . . . . ); N.J.S.A. 52:4B-59 (all amounts in the Statewide Sexual Assault Nurse Examiner fund shall be used for the operational expenses of the sexual assault nurse examiner program in each county. ); N.J.S.A. 52:4B-43.2 ( all moneys deposited in [the Sex Crime Victim Treatment Fund] shall be used for the provision of counseling and treatment services to victims of specified sex offenses . . . and the families of these victims. ); and N.J.S.A. 2C:43-3.7 (Sex Offender Surcharge to be used to fund programs and grants for the prevention of violence against women. ).

Plaintiff also argues that his body is property which is being held illegally by the State, apparently as collateral for the payment of his fines and penalties, and that this court should, as a result, release him from custody. This argument is nothing more than an attempt to have this court terminate plaintiff s incarceration. It is quite obvious that this court does not have jurisdiction to review or alter plaintiff s lengthy prison term.

In light of these findings, the court will enter Judgment dismissing the Complaint for want of jurisdiction.

Very truly yours,

Patrick DeAlmeida, P.J.T.C.

1 3 On February 28, 2013, the court issued an Order pursuant to R.1:13-2(a), waiving the filing fee for the filing of plaintiff s Complaint.