SHAWN JULY VS. NEW JERSEY DEPARTMENT OF CORRECTIONSÂ (NEW JERSEY DEPARTMENT OF CORRECTIONS) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2687-15T4
SHAWN JULY,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
____________________________
Submitted June 8, 2017 – Decided July 11, 2017
Before Judges Lihotz and Whipple.
On appeal from New Jersey Department of
Corrections.
Shawn July, appellant pro se.
Christopher S. Porrino, Attorney General,
attorney for respondent (Lisa A. Puglisi,
Assistant Attorney General, of counsel; Nicole
E. Adams, Deputy Attorney General, on the
brief).
PER CURIAM
Shawn July, an inmate at New Jersey State Prison in Trenton,
appeals from a May 6, 2015 final decision from the New Jersey
Department of Corrections regarding the calculation of gap-time
credits. We affirm.
On June 25, 1999, July began serving a five-year maximum
sentence for unlawful possession of a firearm, possession of a
controlled dangerous substance (CDS), distribution of a CDS,
conspiracy to distribute a CDS, receiving stolen property, and
resisting arrest. On January 6, 2002, July was sentenced to an
aggregate twenty-year term with an eighty-five percent period of
parole ineligibility, pursuant to the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2, for aggravated manslaughter and unlawful
possession of a weapon. The 2002 sentence ran concurrent to the
1999 sentence, totaling an aggregate maximum sentence of twenty-
two years, six months, and thirteen days. July was awarded 927
days of gap-time credit for the time he spent incarcerated between
the 1999 conviction and the 2002 conviction.
On February 10, 2015, July filed an inmate grievance form
seeking a correction to his sentence and arguing his gap-time was
not applied. Department of Corrections staff responded on April
6, 2015, indicating the gap-time credits are included in his
calculation. July appealed from this determination on April 9,
2015, again arguing the credits were incorrectly calculated. A
final decision from May 6, 2015, stating the gap-time credits had
been included. July subsequently appealed from the final decision.
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July argues the agency did not correctly apply his gap-time
credits to his sentence. We disagree.
Gap-time credits are awarded when a defendant has been
previously incarcerated and is sentenced to another term "for an
offense committed prior to the former sentence." N.J.S.A. 2C:44-
5(b)(2). Then, the defendant shall be credited with time served
in imprisonment on the prior sentence in determining the
permissible aggregate length of the term . . . remaining to be
served." Ibid. These credits cannot be used to reduce an inmate's
mandatory sentence, which is what July seeks here. N.J.A.C. 10A:9-
5.2(c). These credits "advance the date on which a defendant
first becomes eligible for parole," but only when "neither a
judicial nor a statutory parole bar has been imposed." State v.
Hernandez, 208 N.J. 24, 38-39, 41 (2011) (citing Booker v. N.J.
State Parole Bd., 136 N.J. 257, 261, 263-65 (1994)).
July began serving his aggravated manslaughter sentence on
January 7, 2002. July's mandatory minimum of seventeen years for
this conviction expires on January 6, 2019, and the agency listed
July's maximum and minimum date as January 6, 2019. The maximum
for this conviction is twenty years. July was awarded 927 days
of gap-time credits and 400 days of work credit by the court.
Together, these credits reduce the maximum twenty-year sentence
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to the mandatory minimum of seventeen years because the credits
cannot reduce the sentence below the mandatory minimum.
Gap-time credits are governed by N.J.A.C. 2C:44-5(b).
"Unlike jail credits, gap-time credits are applied to the 'back
end' of a sentence." Hernandez, supra, 208 N.J. at 38. Gap-time
credit will not reduce the period of parole ineligibility imposed
by NERA. Id. at 41. July's aggravated manslaughter conviction
requires he serve a term of seventeen years before he is eligible
for parole; gap credits cannot reduce that term. Thus, the
agency's decision was not arbitrary or capricious.
Affirmed.
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