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Dollar v. New Jersey State Parole Board

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 4, 2008

HOMER B. DOLLAR, APPELLANT,
v.
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.

On appeal from the State Parole Board.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: April 14, 2008

Before Judges Collester and C.L. Miniman.

Appellant Homer B. Dollar appeals the May 24, 2007, final decision of respondent New Jersey State Parole Board revoking parole based on its finding that appellant had violated Condition No. 5a, approval for any change in residence, Condition No. 10, registration as a sex offender, and a Special Condition, participation in outpatient drug and alcohol counseling. We affirm.

On November 8, 1978, after consuming alcohol, mostly beer and rum, appellant went to his sister's house where she was baby-sitting for three children, T.M., age 5; A.M., age 4; and D.M., age 3. Appellant smoked five marijuana cigarettes and was reading a Playboy magazine. He then went up to the attic where the three children were playing with his sister's seven-year-old son, J.J. Appellant removed T.M.'s panties and raped her. T.M. and A.M. later told their mother, who immediately took T.M. to Dr. Raj Sharnia, who performed some tests. On November 17, 1978, Dr. Sharnia informed T.M.'s mother that T.M. had gonorrhea. After his arrest, appellant also tested positive for gonorrhea. He pled guilty to carnal abuse and lewdness on September 18, 1979, and was sentenced to thirty years at the Adult Diagnostic and Treatment Center (ADTC) in Avenel under the Sex Offender Act, N.J.S.A. 2A:164-3 to -13, repealed by N.J.S.A. 2C:47-1 to -10. Appellant had also been convicted on March 2, 1977, of carnal abuse of a five-year-old child on August 13, 1976, when he was a juvenile.

Appellant's maximum date for release from incarceration is December 19, 2010. He was first paroled on May 14, 1990, but did not comply with his parole conditions and was arrested on September 29, 1992, for failing to participate on a regular basis in an ADTC aftercare program. While incarcerated appellant received an evaluation pursuant to State v. Dalonges, 128 N.J. Super. 140 (App. Div. 1974). Dr. Kenneth McNeil stated that he was concerned about appellant's alcohol abuse and family conflicts, but concluded that these concerns were not related to his repetitive and compulsive pattern of abuse.

Appellant was paroled for the second time on June 16, 1993, but was again arrested on May 4, 1994, for violating his conditions of parole because he failed to submit to random urine monitoring and to participate in Narcotics Anonymous and mental health counseling. Another Dalonges evaluation was performed on September 22, 1994, this time by Dr. Mark Frank. Dr. Frank found that appellant harbored resentment toward authority, although his parole violation was unrelated to his pattern of repetitive and compulsive sexual pathology. Dr. Frank found that appellant presented a relatively high risk of reoffense.

Appellant was released on parole for the third time on November 16, 1994. He managed on parole for a longer period of time before again violating his conditions of parole. He was arrested on February 3, 1997, and charged with violating his parole because he left the state without prior approval, failed to participate in random urine monitoring and mental health programs, failed to refrain from using alcohol, and failed to register as a sex offender every ninety days with the Passaic Police Department. Dr. Frank performed another Dalonges evaluation on May 7, 1997. He observed that appellant spent so much time blaming others that he failed to see his own fault. Dr. Frank also observed that appellant would rather engage in self-defeating behavior than conform to what he was told to do. He concluded that the violations of parole did not indicate that appellant was likely to commit a sexual offense, but that it was likely that he would violate parole in the future because he "experience[ed] parole as an unfair curtailment of his freedom."

For the fourth time, appellant was continued on parole on December 3, 1997, but before two years elapsed he was again arrested on November 5, 1999, for violations of parole. In the four months prior to his arrest, appellant was absent or tardy for two-thirds of his scheduled aftercare counseling sessions. Yet another Dalonges evaluation was performed by Dr. Frank on May 8, 2000, who reached the same conclusions as he did in 1997 and opined that appellant's parole should be continued. However, a two-member parole panel did not agree with Dr. Frank's ultimate opinion and affirmed the revocation of parole. On April 30, 2002, we affirmed the revocation of parole concluding that it was supported by sufficient credible evidence in the record based on appellant's repeated refusals to comply with the conditions of parole.

Appellant was paroled for the last time on April 11, 2005. Within six weeks the District Parole Supervisor issued a bench warrant for appellant's arrest for parole violations. Appellant had failed to obtain approval for a change in residence, failed to re-register with the local police department after changing his residence, failed to participate in an outpatient drug counseling program and failed to comply with the program's regulations.

Appellant admitted that he had not been staying at his designated residence, the Good Shepherd Mission in Paterson. After claiming that he had been staying with his sister, he admitted that he had been living on the streets. He also admitted that he had not started the required counseling at the Damon House. Dr. Frank again conducted a Dalonges evaluation on May 5, 2006. His opinion remained the same, that is, Dalonges applied and appellant needed to work on "his tendency to resent authority and engage in self-defeating behavior." Nonetheless, appellant's parole was revoked on October 20, 2006.

On administrative appeal, the Parole Board remanded the case on February 27, 2007, to the Revocation Unit for issuance of an amended Notice of Decision. In that September 20, 2006, decision the two-member Parole Panel found that appellant had misrepresented his living arrangements to his parole officer and that his excuse for not staying at the Good Shepherd Mission was not brought to the attention of his parole officer until after he was confronted with proof that he had not stayed there. The Parole Panel also concluded that Dr. Frank had placed too much reliance on appellant's claimed reasons for not staying at the mission. The panel also determined that appellant's excuse for not attending outpatient drug counseling was unpersuasive and that he had not advised his parole officer of any difficulties contacting Damon House before issuance of the warrant. The panel also concluded that appellant's failure to attend drug counseling was part of a self-destructive pattern of behavior directly related to his sexual abuse of the second five-year-old girl. The panel revoked appellant's parole and the full Board affirmed on May 24, 2007. This appeal followed.

Defendant raises the following issues for our consideration on appeal:

POINT I - CONSTITUTIONAL BASIS AND LEGAL BACKGROUND OF APPELLANT'S CLAIMS.

POINT II - APPELLANT'S CONFINEMENT WAS AN INVOLUNTARY COMMITMENT TO A LEGISLATIVELY MANDATED AND COURT IMPOSED SPECIALIZED PROGRAM OF PSYCHIATRIC/PSYCHOLOGICAL TREATMENT WITH NO ASPECT OF APPELLANT'S CONFINEMENT APPORTIONED TO PUNISHMENT.

POINT III - APPELLANT'S COMMITMENT CONTINUES TO BE GOVERNED BY PRE-CODE 2A LEGISLATION.

POINT IV - APPELLANT'S RIGHT TO PSYCHIATRIC/ PSYCHOLOGICAL TREATMENT.

POINT V - UNIQUE PURPOSE AND GOAL OF THE ADTC.

POINT VI - PAROLE IS A CONTINUANCE OF SENTENCE OUTSIDE THE FACILITY, AND MUST COMPORT WITH THE SENTENCE IMPOSED BY THE COURT.

POINT VII - N.J.A.C. 10A:71-4.2(e)(1), THE BOARD FAILED TO CONSIDER MATERIAL FACTS OR FAILED TO DOCUMENT THAT CLEAR AND CONVINCING EVIDENCE INDICATES THAT THE PAROLEE HAS SERIOUSLY OR PERSISTENTLY VIOLATED THE CONDITIONS OF PAROLE. CONDITION #5a - OBTAIN APPROVAL FOR ANY CHANGE IN RESIDENCE.

POINT VIII - N.J.A.C. 10A:71-2 (e)(1), THE BOARD FAILED TO CONSIDER MATERIAL FACTS OR FAILED TO DOCUMENT THAT CLEAR AND CONVINCING EVIDENCE INDICATES THAT THE PAROLEE HAS SERIOUSLY OR PERSISTENTLY VIOLATED THE CONDITIONS OF PAROLE. CONDITION #10 - FAILED TO REGISTER AS A SEX OFFENDER.

POINT IX - N.J.A.C. 10A:71-4.2 (e)(2), THE BOARD PANEL FAILED TO DEMONSTRATE, IN THE CASE OF A PAROLEE REVOKED FOR OTHER THAN NEW CRIMES, THAT REVOCATION OF PAROLE IS DESIRABLE.

POINT X - N.J.A.C. 10A:71-4.2 (e)(3), THE BOARD PANEL'S DECISION IS CONTRARY TO WRITTEN BOARD POLICY OR PROCEDURES. VIOLATION SPECIAL CONDITION OF PAROLE -FAILURE TO PARTICIPATE AND COMPLY WITH AN OUTPATIENT DRUG COUNSELING PROGRAM AT DAMON HOUSE.

The first six points on appeal were not raised below, as defendant acknowledges. He contends that he did not present these issues to the Parole Board because "due to the Parole Board's continual supervision of sex offenders as part of their regular duties, they are well aware of the special considerations due persons committed under N.J.S.A. 2A:164-1 to [-]13 . . . ." We generally do not consider issues that were not raised before the lower court or administrative body:

It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available "unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest." [Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citation omitted).]

None of the first six issues concern the jurisdiction of the Parole Board. Furthermore, they do not raise issues of great public interest. We do not, therefore, consider them.

Turning to the remaining issues on appeal, we do not review the facts de novo. Rather, we have observed that:

Our scope of review is limited. A reviewing court must determine whether the factual finding could reasonably have been reached on sufficient credible evidence in the whole record. Trantino v. New Jersey State Parole Bd., 166 N.J. 113, 172 (2001), modified, 167 N.J. 619 (2001); New Jersey State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988). Moreover, "Parole Board decisions are highly individualized discretionary appraisals," Trantino, supra, 166 N.J. at 173 (citing Beckworth v. New Jersey State Parole Bd., 62 N.J. 348, 359 (1973)), and should only be reversed if found to be arbitrary or capricious. Trantino, supra, 166 N.J. at 173. The Parole Board must determine by a preponderance of the evidence whether there is a substantial likelihood the inmate will commit another crime if released. Id. at 189. [Hare v. N.J. State Parole Bd., 368 N.J. Super. 175, 179-80 (App. Div.), certif. denied, 180 N.J. 452 (2004).]

After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that appellant's arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).

We affirm substantially for the reasons expressed by the Parole Board in its written opinion delivered on October 4, 2006. The findings and conclusions of the Board are supported by substantial, credible evidence in the record. State v. Locurto, 157 N.J. 463, 471 (1999). It is abundantly clear from all of the evidence that appellant will not comply with the conditions of his parole, including the important requirement that he participate in outpatient therapy and drug and alcohol counseling. This therapy is essential to ameliorate the conditions that led to the rape of a five-year-old girl while appellant was under the influence of drugs and alcohol. His failure to comply with this therapy mandates revocation of parole in order to promote his rehabilitation.

Affirmed.

20080604

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