January 31, 2012
GREGORY HICKMAN, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 January 9, 2012
Before Judges Grall and Alvarez.
Gregory Hickman's parole was revoked for "seriously" violating the "conditions" of his parole, N.J.S.A. 30:4-123.60; N.J.S.A. 30:4-123.63, and he was given a one-year future parole eligibility date, N.J.S.A. 30:4-123.64. That determination was made by a two-member panel of the Parole Board (Board) based on a recommendation of a hearing officer and the officer's written report summarizing the testimony and evidence presented at a revocation hearing. Hickman now appeals from that final agency decision. R. 2:2-3(a)(2).
When the administrative proceedings commenced, Hickman was on parole from a twenty-year sentence imposed in 1996 based on his plea of guilty to first-degree robbery. Hickman was first paroled in June 2007, but in December 2007 that parole was revoked. Hickman was paroled a second time on October 27, 2008.
On July 24, 2009, Hickman was arrested on a parole warrant and charged with violating three conditions of his parole. The allegations were: 1) failure to refrain from the use, possession, or distribution of a controlled dangerous substance (CDS), a charge which was based on a police report indicating he possessed drugs on May 2, 2009; 2) failure to refrain from drug use, a charge which was supported by drug screens that were positive for marijuana; and 3) failure to successfully complete a Community Resource Center Program (CRC program), a charge which was based on his discharge from the CRC program due to a positive drug test and unexcused absences on thirteen of the fifty-four days he was to attend.
Three days after his arrest on the parole warrant, Hickman was given notice that a probable cause hearing would be scheduled. In that notice, the charges and the factual basis for each alleged violation were set forth, and the pertinent police report, parole records and report from the CRC program were provided along with that notice. Hickman was also advised of his right to have representation, remain silent, confront witnesses and present evidence. N.J.S.A. 30:4-123.62d; N.J.A.C. 10A:71-7.7.
For reasons not documented in the record presented on appeal, the probable cause hearing was not held until December 2009, about five months after Hickman's arrest on the parole warrant. Cf. N.J.S.A. 30:4-123.62b-c (requiring a preliminary hearing to assess probable cause within fourteen days and authorizing one fourteen-day extension); accord N.J.A.C. 10A:71-7.5. At the probable cause hearing, Hickman was represented by counsel, waived his right to a preliminary hearing, and elected to proceed directly to a final hearing on revocation.
In accordance with N.J.S.A. 30:4-123.63a, a hearing on the revocation of Hickman's parole hearing was conducted by a hearing officer who prepared a written summary of the evidence and stated his findings and conclusions. We have not been provided with the recording of the proceeding, and our statement of the evidence is based on the hearing officer's written notice of decision. See N.J.S.A. 30:4-123.63c (requiring the hearing officer to maintain a record); N.J.A.C. 10A:71-7.16 (requiring electronic recording of the proceeding and a written decision).
At the revocation hearing, Hickman testified and acknowledged his violation of two of the three conditions of parole. He admitted he failed to refrain from drug use and comply with the rules of the CRC program. Noting that he was incarcerated before he was eighteen, he explained that the CRC staff was not qualified to address his problems and that his inability to get a job led him to use marijuana. There was evidence of these violations beyond Hickman's admissions. Records of the CRC program reflect that he had unexcused absences on thirteen of the fifty-four days he was to attend the program and that he tested positive for marijuana. In addition, there was a laboratory report of another positive test for marijuana in January 2009, and Hickman admitted that he had used marijuana in July 2009 as well.
In contrast to his admitted violation of the two conditions of his parole, Hickman disputed the violation based on the allegation that he possessed marijuana on May 2, 2009. The police officer who contended that Hickman had marijuana that day testified at the revocation hearing. According to the officer, while he and other officers were investigating a report of a domestic dispute, he heard a motor vehicle crash and turned to investigate the accident while his colleagues addressed the disturbance.
The officer saw someone, whom he later identified as Hickman, get out of the car and limp away from it. According to the officer, Hickman was a holding a bag, and threw it into a dumpster as he passed the trash. The officer could not catch up with Hickman, but he went to the dumpster and removed a bag that was on top of the other trash. It contained what the officer "suspected" to be a CDS and a ten-dollar bill. The officer later saw Hickman's brother, who told him that Hickman had left the scene. At headquarters, the officer identified Hickman from a photograph on a website maintained by the Department of Corrections. At the revocation hearing, the officer made a positive identification.
Hickman admitted that he and his brother-in-law argued at a family picnic on May 2. By Hickman's account, the police officer mistakenly connected the dispute and the unrelated car accident. He denied having anything to do with the accident or the drugs. Hickman's attorney questioned the reliability of the police officer's identification.
Relying on the police officer's "positive" identification at the revocation hearing, the hearing officer was clearly convinced that Hickman had "dropped a bag of suspected CDS in the dumpster" on May 2, 2009. (emphasis added). The hearing officer did not find, however, that the bag contained a CDS. In addition, the hearing officer found clear and convincing evidence supporting the remaining undisputed violations. Considering Hickman's three violations, his prior parole revocation, and his failure to complete the CRC program and refrain from drug use, the hearing officer concluded that the violations were serious or persistent and the revocation of parole was appropriate.
In accordance with N.J.S.A. 30:4-123.63d and N.J.A.C. 10A:71-7.17B, a two-member panel of the Board considered the hearing officer's written hearing summary and opinion and determined that Hickman's parole should be revoked. The panel indicated that the hearing officer's findings were supported by the record, but made no additional findings. Thus, the panel revoked parole in accordance with the hearing officer's decision. Pursuant to N.J.S.A. 30:4-123.64 and N.J.A.C. 10A:71-7.17B(a)(3)(v), the panel fixed a twelve-month future parole eligibility date. Although the panel decision should have been issued within twenty-one days of the December 11, 2009 revocation hearing, N.J.A.C. 10A:71-7.18(a), it was not issued until February 3, 2010.
On March 5, 2010, Hickman filed an administrative appeal of the panel's determination with the full Board. In a written decision dated August 25, 2010, the Board addressed and rejected Hickman's objections to: delay in the proceedings which he contended amounted to a denial of due process; his claim that parole was revoked based on a criminal charge for which he was never indicted; his claim that the police officer should not have been permitted to testify; his allegations of bias on the part of the hearing officer; and his claim that the evidence of his possession of a CDS on May 2, 2009 was inadequate. The Board acknowledged the non-compliance with timeframes but concluded that Hickman was not prejudiced because his parole was revoked. After considering the recording of the hearing, the Board found no evidence of bias or prejudice or any indication that the revocation of Hickman's parole was based on pending criminal charges. Finally, the Board concluded that the violations were established by clear and convincing evidence. Like the panel, the Board did not make any additional findings. Concluding that Hickman had "seriously violated the conditions of parole and revocation of parole [was] desirable," the Board affirmed the revocation and the twelve-month future parole eligibility date.
In assessing the validity of the Board's determination to revoke Hickman's parole, it is appropriate to apply the standards applicable to a denial of parole as stated in Trantino v. New Jersey State Parole Board, 154 N.J. 19, 24-25 (1998). That standard affords the deference due the Board in matters committed to its exercise of discretion and expertise in accordance with the law. Id. at 25. Accordingly, we consider "(1) whether . . . the agency follow[ed] 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." Id. at 24.
The legal standard is statutory. Where, as here, revocation of parole is sought for violations of the conditions of parole, as opposed to new convictions for a crime, there must be clear and convincing evidence that the parolee "seriously or persistently violated the conditions of his parole," N.J.S.A. 30:4-123.60b, and a determination that "revocation and return to custody is desirable," N.J.S.A. 30:4-123.63d.*fn1
Without question, the record includes sufficient evidential support for two of the three violations - failure to refrain from drug use and failure to complete the CRC program. In contrast, the agency has not made the findings necessary to support its determination that Hickman possessed a CDS on May 2, 2009.
With respect to Hickman's conduct on May 2, the charge was violation of a condition prohibiting possession, use or distributing of a CDS. The hearing officer found that the bag Hickman possessed contained a "suspected" CDS. But the violation charged could not be sustained without clear and convincing evidence that the substance actually was a CDS. Neither the two-member panel nor the Board addressed the obvious inadequacy in the hearing officer's findings. Accordingly, that violation must be vacated.
Despite our decision to vacate one of the violations, we have determined that the Board should have an opportunity to determine whether revocation of Hickman's parole is appropriate based on the two violations that are established. Arguably, the Board could conclude that these violations in themselves are sufficiently serious to meet the statutory standard and make revocation desirable. Accordingly, we remand to permit the Board to reconsider the propriety of revocation without reference to the allegation that Hickman possessed a controlled dangerous substance on May 2, 2009.
Although we are remanding, we address Hickman's claims that the parole revocation should be reversed because of delay amounting to a denial of due process.
There is no question that "due process requires a prompt preliminary hearing to determine whether there is probable cause or reasonable grounds to believe that the parolee has committed acts which would constitute a violation of parole conditions, and also requires a hearing prior to a final decision to revoke parole." Dougherty v. New Jersey State Parole Bd., 325 N.J. Super. 549, 554-55 (App. Div. 1999), certif. denied, 163 N.J. 77 (2000); see also Morrissey v. Brewer, 408 U.S. 471, 485-88, 92 S. Ct. 2593, 2608-09, 33 L. Ed. 2d 484, 496-98 (1972); Johnson v. State Parole Bd., 131 N.J. Super. 513, 521 (App. Div. 1974), certif. denied, 67 N.J. 94 (1975). We have previously cautioned that the Board is obligated to follow and may not disregard the statutes and its own regulations governing parole revocation hearings. Dougherty, supra, 325 N.J. Super. at 554.
Nevertheless, delay does not warrant reversal of a parole revocation if there is no resulting prejudice. Id. at 555. In the absence of prejudice, the remedy for delay is an order mandating a prompt hearing. See, e.g., Bryant v. Grinner, 563 F.2d 871, 873 (7th Cir. 1977). Hickman does not allege any prejudice to his ability to defend against the charged violations attributable to the delay. Accordingly, we cannot conclude that Hickman is entitled to a reversal of his parole revocation because of the delay.
In reviewing this matter on remand, however, the Board should ensure that the agency's delay between his arrest on the parole warrant and the Board's final decision has not contributed in any way to the establishment of later parole eligibility or maximum release dates. Based on our review of Hickman's prison records, it is not at all clear that he was given credit for all time he spent in custody after his arrest on the parole warrant, and it is not clear that the agency's delay played no role in the fixing of a twenty-four-month eligibility date at the end of the one-year period fixed by the two-member panel.
Hickman raises additional arguments that we have not addressed because they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Reversed and remanded for further proceedings. We do not retain jurisdiction.