State v. Webster

• Decision Date: 24 February 2006
• Citation: 892 A.2d 688,383 N.J. Super. 432
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Abdul WEBSTER, Defendant-Appellant.
• Court: New Jersey Superior Court

892 A.2d 688

383 N.J. Super. 432

STATE of New Jersey, Plaintiff-Respondent, v. Abdul WEBSTER, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Submitted January 24, 2006.

Decided February 24, 2006.

Yvonne Smith Segars, Public Defender, attorney for appellant (Barbara A. Hedeen, Assistant Deputy Public Defender, of counsel and on the brief).

Nancy Kaplen, Acting Attorney General, attorney for respondent New Jersey Parole Board¹ (Patrick DeAlmeida, Assistant Attorney General, of counsel, and Lisa A. Puglisi, Deputy Attorney General, on the brief).

Before Judges SKILLMAN, AXELRAD and PAYNE.

The opinion of the court was delivered by

PAYNE, J.A.D.

Defendant Abdul Webster has appealed from his sentence of six years in custody with an eighty-five percent period of parole ineligibility, imposed pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, following his plea of guilty to second-degree aggravated assault.

The Parole Board interprets NERA to preclude the application of commutation and work credits to the "front end" of a sentence subject to NERA so as to lessen the period of parole ineligibility, and instead recognizes those credits as applicable only to the remaining base term or "back end" of a sentence. As the result of the operation of statutory sentence maximums, which effectively require a period of custody that is less than the custodial term stated by the sentencing court, the credits thus become of little or no substantive use to an inmate, since the end of the period of parole ineligibility imposed under NERA will usually be coterminous with the maximum sentence pursuant to statute.

Defendant argues that the Parole Board's interpretation of NERA results in a denial of the benefit of credits to which the Parole Act entitles him. He argues that this interpretation is not required by NERA, which does not prohibit the application of commutation and work credits to reduce a period of parole ineligibility imposed pursuant to that statute, nor is it required by the relevant provision of the Parole Act, N.J.S.A. 30:4-123.51a. Defendant claims that the interpretation is thus contrary to law, and as a result, he is entitled either to the elimination of his period of parole ineligibility under NERA or to a declaration that commutation and work credits are applicable to reduce his period of parole ineligibility.

Defendant's challenge to the manner in which his parole eligibility date is calculated was not raised before the Parole Board, as administrative law requires. Nonetheless, because the Parole Board has filed an answering brief addressing the issues that defendant has raised, we will consider the substance of defendant's challenge in order to again clarify the interrelationship between NERA and the Parole Act and their application in sentencing. In doing so, we reject defendant's position, finding the actions of the Parole Board consonant with the provisions of both the Parole Act and NERA.

The Parole Act provides, in N.J.S.A. 30:4-140, for an award of progressive time or commutation credits for continuous orderly behavior in custody and, in N.J.S.A. 30:4-92, for an award of work credits as compensation for an inmate's employment in "productive occupations" during that period of custody.

N.J.S.A. 30:4-123.51a specifies that an inmate shall become primarily eligible for parole after serving any judicial or statutory mandatory minimum term or, in the absence of a parole disqualifier, one-third of the sentence imposed. Ibid. The statute further permits commutation and work credits to reduce that one-third term. Ibid. The statute provides in relevant part:

a. Each adult inmate sentenced to. . . a specific term of years at the State prison or the correctional institution for women shall become primarily eligible for parole after having served any judicial or statutory mandatory minimum term, or one-third of the sentence imposed where no mandatory minimum term has been imposed less commutation time for good behavior pursuant to . . . R.S. 30:4-140 and credits for diligent application to work and other institutional assignments pursuant to . . . R.S. 30:4-92.

However, the statute precludes the use of such credits to reduce any judicial or statutory mandatory minimum term, stating:

Consistent with the provisions of the New Jersey Code of Criminal Justice (N.J.S.2C:11-3, 2C:14-6, 2C:43-6, 2C:43-7), commutation 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.

The Administrative Code contains a similar prohibition against the use of commutation and other credits to reduce a period of parole ineligibility, stating in N.J.A.C. 10A:9-5.1(a)2:

Commutation credits are not awarded until after the expiration of the mandatory minimum portion of the sentence. When the mandatory minimum part of the sentence has been served, commutation credits are awarded on the full sentence.

N.J.A.C. 10A:9-5.2(b) further provides:

In all cases where the sentence includes a mandatory minimum term of imprisonment, commutation credits, work credits, gap time and minimum credits may not be applied to the mandatory minimum term, but may only reduce the maximum term.

NERA, as amended in 2001 to enumerate specific crimes to which it is applicable, provides:

a. A court imposing a sentence of incarceration for a crime of the first or second degree enumerated in subsection d. of this section shall fix a minimum term of 85% of the sentence imposed, during which the defendant shall not be eligible for parole.

We have analyzed the phrase "not eligible for parole" that appears in NERA when deciding a similar challenge to the application of commutation and work credits by an inmate sentenced to thirty years without parole for murder pursuant to N.J.S.A. 2C:11-3b, a statute containing the same parole ineligibility language.² Merola v. Dept. of Corr., 285 N.J.Super. 501, 667 A.2d 702 (App.Div.1995). There, we stated that "[t]he use of the term `not eligible for parole' in a sentencing statute unquestionably denotes a mandatory minimum sentence." Id. at 507, 667 A.2d 702 (citing State v. Davis, 175 N.J.Super. 130, 417 A.2d 1075 (App.Div.), certif. denied, 85 N.J. 136, 425 A.2d 291 (1980)). Additionally, we rejected the argument that the defendant had a constitutionally protected liberty interest under the Due Process Clause of the Fourteenth Amendment in the reduction of his sentence by application of commutation and work credits. We stated:

The United States Supreme Court has held that there is no federal constitutional right to good time credits. In addition, the United States Constitution does not guarantee an inmate with right-to-work opportunities during his incarceration. If an inmate has no constitutional right to receive commutation or work credits, he or she certainly has no constitutional right to apply those credits in contravention of a state statute requiring that an inmate serve a mandatory minimum term.

[Id. at 513, 667 A.2d 702 (citations omitted).]

In a second related decision, we determined that gap-time credit could not be utilized to reduce a period of parole ineligibility imposed pursuant to NERA after defendant's conviction for first-degree robbery, despite the defendant's argument that the Parole Board's refusal to apply the credit to the period of parole ineligibility rendered the credit meaningless. Meyer v. N.J. State Parole Bd., 345 N.J.Super. 424, 785 A.2d 465 (App.Div.2001), certif. denied, 171 N.J. 339, 793 A.2d 717 (2002). There, we stated: "In our view, the Legislature has spoken in clear and unambiguous terms that a person convicted of a NERA offense must serve eighty-five percent of the sentence imposed before becoming eligible for release. To adopt [the defendant's] argument would be inconsistent with that clear legislative intent." Id. at 430, 785 A.2d 465.

Similarly, in Salvador v. Dept. of Corr., 378 N.J.Super. 467, 876 A.2d 309 (App. Div.), certif. denied, 185 N.J. 295, 884 A.2d 1265 (2005), when confronted with the argument that commutation and work credits should be utilized to reduce the five-year extended period of parole supervision imposed upon defendant because of his NERA sentence for robbery, we acknowledged our determination in Meyer that such credits could not be utilized to reduce the period of parole ineligibility resulting from a NERA sentence. Id. at 469, 876 A.2d 309.

We see no reason to diverge from precedent in the present case finding, contrary to defendant's argument, evidence of a clear intent by the Legislature when enacting NERA in 1997 to require defendants subject to the Act's provisions to serve the full eighty-five percent period of their parole disqualification prior to any release from custody.

NERA was introduced and adopted following a number of well-publicized murders of New Jersey children, and it constituted a legislative response to the position of increasingly vocal victims rights representatives that sentences for violent crimes were inadequate and were unjustifiably reduced by the application of credits such as those awarded for good behavior and for work in prison. See Stacey L. Pilato, Note, New Jersey's No Early Release Act: A Band-Aid Approach to Victims' Pain and Recidivism?, 22 Seton Hall Legis. J. 357, 366-69 (1997)³; see also Report of the Study Commission on Parole at 26 (December 23, 1996) (recognizing the public's concerns regarding the length of actual sentences served and finding them addressed by NERA).

As initially introduced in the New Jersey Senate on February 26, 1996, the Act contained a specific provision disallowing the use of commutation and work credits to reduce the eighty-five percent period of parole ineligibility.⁴ See S. No. 855 (introduced February 26, 1996). Although that provision was eventually eliminated in amendments proposed by the Assembly...