Opinion
DOCKET NO. A-3581-12T4
11-09-2015
WALI YOUNG, Appellant, v. NEW JERSEY STATE PAROLE BOARD, Respondent.
Wali Young, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Andrew J. Sarrol, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from New Jersey State Parole Board. Wali Young, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Andrew J. Sarrol, Deputy Attorney General, on the brief). The opinion of the court was delivered by SUMNERS, JR., J.A.D.
Appellant Wali Young, currently an inmate incarcerated at a halfway house, appeals from a final agency decision of the New Jersey State Parole Board (Board) denying him parole and imposing a twenty-month future eligibility term (FET).
I.
We discern the following facts and procedural history from the record on appeal and prior opinions involving appellant. On October 17, 2003, Young pled guilty to first-degree robbery, N.J.S.A. 2C:15-1, and fourth-degree resisting arrest, N.J.S.A. 2C:29-2. He was sentenced on November 17, 2003, to eight years incarceration, subject to eighty-five percent parole ineligibility and five years mandatory parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(c), for first-degree robbery, and eighteen months incarceration for fourth-degree resisting arrest, to run concurrently. This was his sixth indictable conviction. His first three indictable convictions resulted in terms of parole and probation supervision, all three of which he violated.
After serving his maximum sentence, on January 14, 2010, Young was released on mandatory parole supervision. Twenty months later, Young violated parole by failing to report to his parole officer and not obtaining approval for change of address and employment. Young also admitted to using heroin daily, and failed to submit to drug and alcohol testing or to participate in outpatient drug and alcohol counselling. He was arrested on a parole warrant and subsequently returned to custody on September 19, 2011. On October 12, 2011, the Board revoked his mandatory parole supervision and established a twelve-month FET.
On June 6, 2012, Young's initial parole hearing was conducted, and the hearing officer referred the matter to a two-member Board panel, which denied parole on August 21, 2012, pursuant to N.J.S.A. 30:4-123.51(b). The panel also established a twenty-month FET, citing the following factors:
• prior criminal record is extensive and/or repetitive;
• presently incarcerated for multi-crime conviction;
• prior opportunities on probation and parole failed to deter criminal behavior;
• prior opportunities on probation and parole have been violated in the past;
• current opportunity on parole has been revoked because of drug use and failure to report;
• prior incarcerations did not deter criminal behavior;
• an institutional infraction on June 21, 2012;
• removal from a halfway house;
• insufficient problem resolution, specifically, lack of insight into his criminal behavior, minimization of conduct, and insufficiently addressing his substance abuse, as demonstrated by the panel interview and documentation in the case file; and
• a risk assessment evaluation, where the resulting score showed Young at a high risk of recidivism.The panel also noted relevant mitigating factors, such as Young's participation in institutional programs, his average to above average institutional reports, and that he achieved minimum custodial status.
On August 21, 2012, Young administratively appealed the panel's decision to deny him parole and to establish the twenty-month FET to the full Board. He contended that the panel's decision was contrary to written Board policy, and specifically, that NERA violates the Parole Act of 1970 and his Fifth Amendment due process rights, as afforded by the Fourteenth Amendment, because the parole violation sentence exceeds his custodial sentence.
After not receiving a decision by the Board within ninety days of his appeal, Young sent a request to the Board on January 7, 2013, regarding the status of his appeal. The Board responded the next day, advising Young in a letter that the Board will consider his appeal at its January 23, 2013 meeting. The Board did so, issuing a written decision denying Young's appeal and concurring with the panel, citing authority under N.J.S.A. 30:4-123.51(b) "to revoke an inmate's mandatory parole supervision status and return him to [the] remainder of term or until the Board has determined that the inmate[] is again eligible for release." This appeal followed.
On appeal, Young raised the following arguments pro se:
POINT I
THE PANEL'S DECISION WAS CONTRARY TO WRITTEN BOARD POLICY, DUE TO PAROLE ACT OF 1979.
POINT II
PAROLE BOARD VIOLATED THE DUE PROCESS OF THE NEW JERSEY ADMINISTRATIVE CODE.
II.
Our review of Board decisions is limited. Hare v. N.J. State Parole Bd., 368 N.J. Super. 175, 179 (App. Div.), certif. denied, 180 N.J. 452 (2004). "Parole Board decisions are highly individualized discretionary appraisals, and should only be reversed if found to be arbitrary or capricious." Id. at 179-80 (citations and internal quotation marks omitted). As directed by our Supreme Court, our task is to determine
(1) whether the agency's action violates express or implied legislative policy, i.e., did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[Trantino v. N.J. State Parole Bd., 166 N.J. 113, 172 (2001) (citation omitted).]
Consequently, where the Board has applied the correct legal standard, our role is limited to determining whether the decision was arbitrary, capricious or unreasonable. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002). We "must determine whether the factual finding could reasonably have been reached on sufficient credible evidence in the whole record." Hare, supra, 368 N.J. Super. at 179. In making this determination, we "may not substitute [our] judgment for that of the agency, and an agency's exercise of its statutorily-delegated responsibilities is accorded a strong presumption of reasonableness." McGowan, supra, 347 N.J. Super. at 563 (citation omitted). Thus, "[t]he burden of showing that an action was arbitrary, unreasonable or capricious rests upon the appellant." Ibid.
Young contends that the Parole Act of 1979 was meant to allow credit for any time served in jail in order to ensure that defendants who have their parole revoked do not end up being incarcerated for a longer time than required by their original sentence. He argues that his worktime credits must reduce the mandatory five year supervised parole. Young further argues that State v. Friedman, 413 N.J. Super. 480 (App. Div. 2010), rev'd, 209 N.J. 102 (2012), stands for the proposition that when a parolee violates conditions of his parole, then his penalty should be non-custodial only. We are not persuaded.
We agree with the State that Young's reliance on Friedman is misplaced. Friedman held that when a defendant has been sentenced to consecutive custodial terms under NERA, the periods of parole supervision that follow must be served consecutively. Friedman, supra, 209 N.J. at 120. This is not the case here. Young's two sentences, of which only one was NERA, ran concurrently. Accordingly, Friedman does not apply.
Here, Young's period of parole supervision pursuant to NERA was five years for first-degree robbery, despite being sentenced as a second-degree offender. See State v. Cheung, 328 N.J. Super. 368, 369 (App. Div. 2000) (parole supervision under NERA remains at five years even if defendant is sentenced as a second-degree offender). In State v. Johnson, 182 N.J. 232, 238 (2005), our Court recognized that a NERA defendant has "greater restraints after release from prison than otherwise would have applied to a non-NERA defendant." Accordingly, "should a NERA defendant violate parole and be re-incarcerated, the result may be that he or she will serve more than the original term of the sentence. On the other hand, a non-NERA defendant could not be required to serve a period of parole that exceeds the 'term specified in the original sentence.'" Ibid. (citing N.J.S.A. 30:4-123.65).
Young also contends that the Board's decision should be reversed because it violated his due process rights by not considering his appeal within ninety days, in violation of N.J.A.C. 10A:71-4.2(b). Again, we are unpersuaded by Young's contention.
While the Board's decision did not address the timeliness concern raised in Young's January 7, 2013 letter, it now contends, citing Jacobs v. Stephens, 139 N.J. 212, 219 (1995), that although the final decision was issued two months after the ninety-day requirement, the delay constituted harmless error because the full Board upheld the decision of the panel. In Jacobs, the Court held "that DOC's error in commencing Jacobs' disciplinary hearing one-and-one-half hours before the required twenty-four hours was harmless and did not prejudice him." Ibid. Harmless error only applies where fundamental rights at a hearing are unaffected. Ibid. (citation omitted). Balancing the concerns of regulations to afford due process, "a court should be reluctant to overtax and/or hamstring prison officials' execution of disciplinary policies and procedures by mandating an automatic remand for technical non-compliance with a regulation, absent some showing of prejudice to the inmate." Ibid. (citing Von Kahl v. Brennan, 855 F. Supp. 1413, 1422 (M.D.Pa. 1994)). Young makes no showing, and we cannot envision how the Board's two-month delay in deciding his administrative appeal has prejudiced him.
We further note that the record fails to explain the cause of the delay in deciding Young's appeal. Thus, we have no basis to assess the reasonableness of the cause of delay. Nevertheless, applying Jacobs, we conclude there was no violation of Young's rights which prejudiced his appeal to the Board and that would warrant reversal of the Board's decision.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION