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David Dolivek v. New Jersey State Parole Board

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 1, 2011

DAVID DOLIVEK, APPELLANT,
v.
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.

On appeal from the New Jersey State Parole Board.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 26, 2011

Before Judges Sabatino and C.L. Miniman.

This is a parole case. Appellant David Dolivek is an inmate presently housed at the South Woods State Prison in Bridgeton. Appellant was convicted in 2007 of endangering the welfare of a minor through his operation of a website that displayed child pornography. Appellant received an eight-year indeterminate sentence, to run concurrently with a 2005 federal sentence for offenses he committed in California, which were also related to his operation of the website.

Appellant contests a final agency decision of the Parole Board ("the Board") dated July 28, 2010, denying him parole and imposing an eighteen-month future eligibility term ("FET"), pursuant to N.J.S.A. 30:4-123.56(a) and N.J.A.C. 10A:71-3.21. The full Board upheld an April 29, 2010 decision of a two-member Board panel, which had conducted a telephonic hearing while defendant was incarcerated in a federal penal facility in Arizona. The panel established the 18-month FET based upon its findings as to the severity of appellant's criminal record, his multiple institutional infractions while incarcerated, and its assessment that appellant "appears to have little understanding of his criminal thinking" and "does not yet seem to grasp the seriousness of his actions."

In his brief on appeal, appellant argues that the Board's decision was arbitrary, unduly severe, and tainted by an incomplete record that omitted favorable information. According to a May 4, 2010 letter to the Parole Board from an attorney then representing appellant, the omitted information included various psychiatric reports, progress reports, letters of recommendation, and documents from self-improvement programs and training classes.*fn1 Appellant contends that he did not present these mitigating proofs to the Board panel because he was not given proper advance notice of his hearing.

We need not address the merits of the determinations made by the panel and the full Board, because we concur with appellant that he did not receive proper notice of his hearing. At the time he became eligible for parole consideration in New Jersey, appellant was housed in a federal correctional facility in Arizona. In November 2009, the Board sent appellant an initial letter, correctly addressed to him at the Arizona facility, requesting him to complete and submit certain forms necessary to process his case. Appellant responded to that initial letter and apparently furnished the completed forms and some other information.

Thereafter, the Board panel scheduled for April 29, 2010 a hearing of appellant's case by teleconference. It did so in accordance with N.J.A.C. 10A:71-3.19, which permits such remote hearings when an inmate cannot attend his parole hearing in person. Ten days before that hearing, April 19, 2010, the Board transmitted a letter intended to notify appellant of the upcoming teleconference. Unfortunately, the notice letter was not addressed to appellant but instead was addressed to his case manager at the Arizona facility. The text of the letter, in fact, erroneously refers five times to the case manager rather than appellant as the subject of the parole hearing.

Appellant contends that he did not receive the hearing notice, and that his Arizona case manager did not tell him about the hearing before it took place. The Board does not refute those contentions, but notes that appellant did not request an adjournment when his hearing was convened.*fn2 The Board also contends that the panel considered appellant's full institutional record, and that the additional materials alluded to by appellant would not have made any difference to its overall assessment. It also faults the attorney who wrote the Board on appellant's behalf after the hearing for not enclosing the materials.

"Although parole is not a constitutional right, the prisoner's liberty interest is sufficient to invoke certain procedural protections[.]" Thompson v. N.J. State Parole Bd., 210 N.J. Super. 107, 121 (App. Div. 1986) (citing N.J. State Parole Bd. v. Byrne, 93 N.J. 192, 208 (1983)); see also Greenholtz v. Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1, 12-16, 99 S. Ct. 2100, 2106-08, 60 L. Ed. 2d 668, 678-81 (1979) (applying flexible norms of due process to parole release hearings). These protections include fair notice to an inmate of the hearing at which his suitability for parole will be evaluated and at which relevant evidence will be presented.

In fact, N.J.S.A. 30:4-123.55(c), the applicable provision within our parole statutes, prescribes such notice:

c. If the hearing officer or the assigned member determines that there is a basis for denial of parole, or that a hearing is otherwise necessary, the hearing officer or assigned member shall notify the appropriate board panel and the inmate in writing of his determination, and of a date for a parole consideration hearing. . . . Said hearing shall be conducted by the appropriate board panel at least 30 days prior to the eligibility date. . . . [N.J.S.A. 30:4-123.55(c) (emphasis added).]

The statute then details certain procedural features of the hearing, including the inmate's right to rebut the evidence weighing against his release and to present proofs on his own behalf:

At the hearing, which shall be informal, the board panel shall receive as evidence any relevant and reliable documents or videotaped or in person testimony, including that of the victim of the crime or the members of the family of a murder victim if the victim or a family member so desires. . . . All such evidence not classified as confidential pursuant to rules and regulations of the board or the Department of Corrections shall be disclosed to the inmate and the inmate shall be permitted to rebut such evidence and to present evidence on his own behalf. The decision of the board panel shall be based solely on the evidence presented at the hearing. [Ibid. (emphasis added).]

See also N.J.A.C. 10A:71-3.13 (delineating the procedures of the parole hearing, including the inmate's right to appear and present evidence).

Due to the multiple misidentifications in the Board's April 19, 2010 notice letter and the letter's misdirection to the inmate's case manager at the federal prison, appellant was not given proper advance notice of his hearing. Consequently, the matter must be remanded for a new hearing, preceded by correct and sufficient notice to appellant. Since appellant is now housed in New Jersey, we presume that the hearing may be more easily and promptly arranged. Both parties are free to update or otherwise supplement their proofs at the hearing.

Remanded to the agency for a further hearing consistent with this opinion. We do not retain jurisdiction.


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