December 8, 2011
JOHN TAYLOR, APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 28, 2011 - Decided Before Judges Ashrafi and Fasciale.
Pro se John Taylor appeals from a May 26, 2010 final decision by the New Jersey State Parole Board (the Board) revoking his parole and imposing a twelve-month future eligibility term (FET). We affirm.
On January 24, 2005, Taylor pled guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, and third-degree tampering with a witness, N.J.S.A. 2C:28-5a.*fn1 On April 1, 2005, the judge sentenced Taylor to twenty-one years on the aggravated manslaughter conviction, and imposed a concurrent three-year term on the tampering conviction.
On June 14, 2007, Taylor was paroled. He obtained a job as a "set-up" worker at the Atlantic City Convention Center (employer) but was terminated on December 11, 2009. Taylor then violated his parole by using marijuana and possessing two straight-edged razors. On December 22, 2009, Taylor admitted that he smoked marijuana, and on December 30, 2009, while he was in the District Parole Office, Taylor was arrested and charged with the weapons offense.
At the initial hearing on January 15, 2010, the hearing officer (HO) listened to testimony from Taylor and a parole officer. Taylor admitted to the drug use, but explained that he possessed the razors as part of his job. The HO postponed the hearing to verify Taylor's explanation.
On January 27, 2010, the hearing reconvened. The HO received letters from the employer's human resources manager and assistant manager. From these letters, the HO learned that razor blades were used by set-up workers, but that Taylor had been terminated before he was arrested for possessing the razors. The HO found that there was no authorized business reason for Taylor to have the razors when the police arrested him. The HO concluded that Taylor was not credible, found by clear and convincing evidence that Taylor had violated the conditions of his parole, and determined that revocation was warranted.
On February 3, 2010, a two-member Board panel reviewed the record, concurred with the HO, and found that the violations were serious enough to revoke parole. The panel then revoked Taylor's parole and imposed a twelve-month FET.
On February 17, 2010, Taylor appealed to the full Board. He argued that there was insufficient evidence to establish a parole violation, and that revocation was unwarranted. In its final decision dated May 26, 2010, the Board stated:
[T]he full Board notes that you admitted to the use of marijuana December 22, 2009 as indicated by your signature on the Admission of Use Form dated December 23, 2009. The full Board found that you admitted to be in possession of razor blades but claim the blades were in a package and were used for work[;] however[,] the Hearing Officer notes that you were not working at the time that you were in possession of the razor blades. Therefore, the full Board concurs with the Panel's findings that the violations are serious to warrant revocation of your parole supervision status.
As a result, the Board upheld the panel's decision. This appeal followed.
On appeal, Taylor contends that there was insufficient evidence to revoke his parole and that he was denied due process. He also argues that he is "an ideal candidate" for entry into a "community based treatment program."
Our review of a Parole Board's determination is limited. We have previously stated that In addressing the validity of the Parole Board's denial of parole, the judicial role concentrates on three inquiries: (1) whether the agency's action violates express or implied legislative policies, 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. State Parole Bd., 154 N.J. 19, 24 (1998) (citing Brady v. Dep't of Personnel, 149 N.J. 244, 256 (1997)).]
We will uphold Parole Board decisions unless they are arbitrary or an abuse of discretion. Id. at 25 (citing Monks v. State Parole Bd., 58 N.J. 238, 242 (1971); State v. Lavelle, 54 N.J. 315, 322 (1969)). Because "Parole Board determinations are highly 'individualized discretionary appraisals,'" Ibid. (quoting Beckworth v. State Parole Bd., 62 N.J. 348, 359, certif. denied, 63 N.J. 583 (1973), dependent on the facts of the case, we "must determine whether [the] factual finding[s] could reasonably have been reached on sufficient credible evidence in the whole record." State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988).
We find that the Board's decision was reasonable, and we see no basis for disturbing it. We affirm substantially for the reasons expressed by the Board in its May 26, 2010 final decision. We add the following comments.
Revocation of parole is governed by N.J.A.C. 10A:71-7.1 to -7.21. "Whenever the parole officer has probable cause to believe that a parolee under his supervision has seriously or persistently violated the conditions of parole, the parole officer shall file a report with the District Parole Supervisor requesting the commencement of revocation proceedings."
N.J.A.C. 10A:71-7.1. Taylor was entitled to a preliminary probable cause hearing within fourteen days of return to custody. N.J.A.C. 10A:71-7.5a. Taylor waived his probable cause hearing.
The United States Supreme Court has established the minimum requirements of due process in a revocation proceeding, to include:
(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a "neutral and detached" hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. We emphasize there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial. [Morrissey v. Brewer, 408 U.S. 471, 488-489, 92 S. Ct. 2593, 2604, 33 L. Ed. 2d 484, 498-99 (1972).]
Our state's Supreme Court has also recognized these minimum due process requirements. Jamgochian v. State Parole Bd., 196 N.J. 222, 244 (2008) (quoting Morrissey, supra, 408 U.S. at 489, 92 S. Ct. at 2604, 33 L. Ed. 2d at 499).
Taylor appeared at the hearing, testified, declined to call witnesses, and was provided an opportunity to confront the parole officer. The hearing was before a neutral and detached HO, and although Taylor waived a full hearing summary, the HO issued a written opinion containing findings of fact and conclusions. As a result, Taylor received the process he was due.
We have carefully reviewed the record and conclude that Taylor's remaining arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E).