On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 13, 2012
Before Judges Sapp-Peterson and St. John.
Appellant, John Martin Roth, is an inmate currently incarcerated at the Adult Diagnostic and Treatment Center ("ADTC") in Avenel. He appeals a determination by respondent, New Jersey State Parole Board ("Board"), revoking his parole, resulting in Roth currently serving a parole violation term of eighteen years, five months and eighteen days in connection with a rape conviction, and 964 days for assault convictions. We affirm.
In 1971, defendant was sentenced to an indeterminate term to the ADTC, not to exceed thirty years, and to three concurrent terms of three to nine years for three counts of assault with intent to commit robbery while armed. Roth was paroled in 1978, but returned to custody in 1979 following his arrest on burglary and assault charges. He pled guilty to three counts of assault with intent to commit robbery while armed, and was sentenced to three concurrent terms of three to nine years to run concurrent to any parole violation. He was once again paroled in June 1981, but arrested three months later in Seattle, Washington, where he was charged with rape, two counts of attempted rape, and attempted robbery. He was convicted of all charges and received an aggregate custodial term of ten years to life imprisonment.
New Jersey lodged a parole violation warrant, and upon his release from custody in the State of Washington in 2010, the New Jersey warrant was executed. A parole violation hearing was conducted on January 14, 2001, and the parole violation charge was sustained.
On March 24, 2011, a two-member Board Panel reviewed the hearing officer's decision, along with Roth's record, and adopted the hearing officer's recommendation that his parole be revoked and that he be referred to ADTC for a Dalonges evaluation.*fn1 Following the evaluation, the two-member Board Panel reconsidered its decision and re-affirmed its decision to revoke Roth's parole and directed that future consideration of parole would occur as a result of a referral from the Special Classification Review Board (SCRB), which, pursuant to N.J.S.A. 2C:47-5(a), reviews parole eligibility for those persons classified as "repetitive and compulsive."
Roth filed an administrative appeal of the two-member Board Panel's ruling to the full Board, which affirmed the Board Panel's decision. The present appeal followed.
On appeal, Roth raises the following points for our consideration:
WHEN A NEW SENTENCE IS IMPOSED ON A PRISONER WHO IS ON PAROLE, THE BALANCE OF THE PAROLE TERM ON THE FORMER SENTENCE SHALL BE DEEMED TO RUN DURING THE PERIOD OF THE NEW IMPRISONMENT. THE INCARCERATION OF THE APPELLANT FOR THE OCTOBER 26, 2011 PAROLE VIOLATION IS AN EX POST FACTO VIOLATION[.]
THE APPELLANT'S SENTENCE WAS NOT THE SUBJECT OF AN ILLEGAL SENTENCE AND THEREFORE THE APPELLANT WAS ENTITLED TO AN EXPECTATION OF FINALITY. FURTHER, THE UNLAWFUL INCARCERATION ...