                                NOT FOR PUBLICATION WITHOUT THE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-4890-17T2

MICHAEL MITCHELL,

           Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
____________________________

                    Submitted May 7, 2019 – Decided May 30, 2019

                    Before Judges Geiger and Enright.

                    On appeal from the New Jersey Department of
                    Corrections.

                    Michael Mitchell, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa Dutton Schaffer, Assistant Attorney
                    General, of counsel; Tasha M. Bradt, Deputy Attorney
                    General, on the brief).

PER CURIAM
      Appellant Michael Mitchell appeals from the denial of his grievance

challenging the seizure of $3000 from his inmate account by the New Jersey

Department of Corrections (DOC) to satisfy a portion of his court ordered fines and

restitution. We affirm.

      Tried to a jury, appellant was convicted of first-degree robbery, N.J.S.A.

2C:15-1, and sentenced to a twenty-five-year prison term under the No Early Release

Act (NERA), N.J.S.A. 2C:43-7.2, and ordered to pay restitution in the amount of

$19,046.88 to Liberty Mutual Insurance. On direct appeal, we affirmed appellant's

conviction, but remanded for resentencing within the standard ten to twenty-year

range for first-degree robbery because the State was barred from seeking a greater

extended prison term than it disclosed in the pretrial memorandum.              State v.

Mitchell, No. A-0675-14 (App. Div. May 4, 2017) (slip op. at 2, 15-16). "We [left]

it to the [trial] court to determine, based on its application of the sentencing factors,

the appropriate sentence . . . within the regular range." Id. at 16. Appellant did not

argue the restitution award should be reversed, modified, or remanded. Id. at 5-6.

The Supreme Court denied certification. State v. Mitchell, 231 N.J. 153 (2017).

      On remand, the trial court conducted a resentencing hearing on August 9,

2017. Neither appellant nor his trial counsel sought any change in the restitution

obligation. Appellant was resentenced to a twenty-year NERA term. The trial court


                                                                                 A-4890-17T2
                                           2
issued an amended judgment of conviction imposing the twenty-year NERA term

and the same $19,046.88 restitution obligation. Appellant did not appeal from his

resentencing.

      Appellant is an inmate at South Woods State Prison (SWSP). On August 22,

2017, the DOC seized a $3000 civil lawsuit settlement check sent to appellant by his

attorney. The seized check was deposited into appellant's inmate account and

applied by the Business Office at SWSP to satisfy a portion of appellant's court

ordered fines and restitution.

      Appellant challenged the seizure; the Business Office instructed appellant to

contact the Central Office Review Unit regarding the seizure of his funds. Appellant

grieved the seizure. The Offender Revenue Collection Unit informed appellant the

amended judgment of conviction obligated him to pay the restitution. He was further

advised that pursuant to N.J.S.A. 30:4-16.4 and N.J.A.C. 10A:2-2.2, the lawsuit

settlement funds were processed correctly by being used "to pay a portion of [his]

court ordered fines and restitutions." Accordingly, his request for a refund of the

$3000 seized was denied.         Appellant sought an administrative appeal of that

decision. He was told there was no further administrative appeal process and the

seizure decision was final. This appeal followed.




                                                                            A-4890-17T2
                                           3
      Appellant argues the DOC's seizure of his funds was illegal and its failure to

address the merits of his appeal renders the decision arbitrary and capricious. We

disagree.

      Our remand for resentencing was limited to sentencing appellant within the

ordinary ten to twenty-year range for first-degree robbery. The trial court was not

directed to reconsider the restitution award.       The restitution award was not

challenged by appellant during the resentencing hearing. The trial court included

the unchanged restitution obligation in the amended judgment of conviction.

Appellant did not appeal from the resentencing. The court-ordered restitution

obligation is thereby binding and the settlement funds on deposit in appellant's

inmate account must be applied to satisfy that obligation pursuant to N.J.S.A. 30:4-

16.4, which provides in pertinent part:

             If an inmate is awarded a money judgment as the result of
             a civil action, the monies derived from that judgment shall
             be deposited in the inmate's account at the correctional
             institution in which the inmate is confined. These monies
             shall be used to satisfy any court-imposed fines, restitution
             or penalties which the inmate has not met.

             [Ibid. See also N.J.A.C. 10A:2-2.2(i).]

Deductions from inmate accounts "shall be made to pay . . . [c]ourt ordered

payments, penalty assessments, restitution, and fines. N.J.A.C. 10A:2-2.2(e)(1).



                                                                             A-4890-17T2
                                          4
The DOC cannot ignore or modify the restitution imposed by a judgment of

conviction.

      The decision to seize the $3000 settlement funds derived from a civil lawsuit

was not illegal. Rather, it was lawful and statutorily mandated. The DOC explained

the factual and legal basis for the seizure. Its decision was not arbitrary or capricious.

      Affirmed.




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                                            5
