June 13, 2013
CHRISTOPHER MERZ, Appellant,
NEW JERSEY STATE PAROLE BOARD, Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 5, 2013
On appeal from New Jersey State Parole Board.
Christopher Merz, appellant pro se.
Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey State Parole Board (Melissa H. Raksa, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).
Before Judges Sapp-Peterson and Haas.
In these two consolidated appeals, appellant Christopher Merz appeals the April 27, 2011 final decision of the State Parole Board to revoke his parole and impose a twelve-month future eligibility term (FET). He also appeals the Board's January 25, 2012 decision denying his request for parole and imposing a twenty-seven month FET. We affirm.
The essential facts of this case are as follows. On October 7, 1998, Merz was driving a pick-up truck, when he ran a stop sign and crashed into the driver's side of the victim's car. The victim, who was pregnant, subsequently died as the result of the injuries she received in the crash. Merz admitted drinking "five beers" prior to the accident. A passenger in the truck told police he and Merz "drank a lot" that day and that Merz had gone through five stop signs before he struck the victim's vehicle.
On September 29, 2000, Merz pled guilty to one count of aggravated manslaughter, N.J.S.A. 2C:11-5. The judge sentenced Merz to thirteen years in prison, with a mandatory eighty-five percent parole ineligibility period pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and imposed a five-year period of parole supervision following the completion of his custodial sentence.
On October 23, 2009, Merz was released from custody and began serving his five-year period of mandatory parole supervision. As a special condition of parole, Merz was required "to refrain from the purchase, the possession and any use of alcohol."
Less than a year later, on August 11, 2010, Merz was arrested for driving while intoxicated. His blood alcohol concentration was 0.18%. While at the police station, Merz admitted to his parole officer that he had consumed five or six beers that day.
On August 17, 2010, Merz was served with a notice of probable cause hearing, which advised him the Board was going to consider revoking his parole because he had violated the special condition by consuming alcohol. The hearing was held on November 12, 2010. Merz was represented by counsel and he elected to waive the probable cause hearing. The matter then proceeded as a final parole revocation hearing. At the conclusion of the hearing, the hearing officer found by clear and convincing evidence that Merz had violated his parole by consuming alcohol and that his parole should be revoked.
On December 1, 2010, a two-member Board panel reviewed the record and concurred with the hearing officer's determination. The panel revoked Merz's parole and imposed a twelve-month FET. Merz filed an administrative appeal of this decision and, on April 27, 2011, the full Board affirmed the panel's decision.
Merz was eligible to be considered for parole on August 10, 2011. On June 8, 2011, a two-member panel considered Merz's case, denied parole, and imposed a twenty-seven-month FET. In its decision, the panel focused upon Merz's criminal record, including the nature of his criminal history; his previous failed opportunities at probation and parole; insufficient problem resolution, including a failure to sufficiently address his substance abuse problem; his continued minimization of his offense; and the results of a risk assessment evaluation indicating that Merz was a "moderate" risk to re-offend. On the mitigating side, the panel noted that Merz had been infraction-free since his return to prison, had participated in institutional programs, and had achieved and maintained minimum custody status.
Merz filed an administrative appeal of the panel's decision to the full Board. On January 25, 2012, the Board affirmed the denial of parole and the imposition of a twenty-seven-month FET. This appeal followed.
In appealing the Board's April 27, 2011 decision revoking his parole and imposing a twelve-month FET, Merz argues that "[t]he Board failed to demonstrate that [he] persist[e]ntly and seriously violated the conditions of his parole supervision." With regard to the Board's January 25, 2012 decision denying parole and imposing a twenty-seven month FET, Merz argues the Board's decision was arbitrary and capricious, "contrary to written policy, administrative regulation, and procedures, " and failed to take all relevant factors into consideration.
We have considered the arguments advanced on appeal in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D). We add the following comments.
Our standard of review of administrative decisions by the Parole Board is limited and "grounded in strong public policy concerns and practical realities." Trantino v. N.J. State Parole Bd. ("Trantino V"), 166 N.J. 113, 200 (2001). "The decision of a parole board involves 'discretionary assessment[s] of a multiplicity of imponderables. . . .'" Id. at 201 (alteration in original) (quoting Greenholtz v. Inmates of Nebraska Penal and Corr. Complex, 442 U.S. 1, 10, 99 S.Ct. 2100, 2105, 60 L.Ed.2d 668, 677 (1979)). "To a greater degree than is the case with other administrative agencies, the Parole Board's decision-making function involves individualized discretionary appraisals." Ibid. (citing Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 358–59 (1973)). Consequently, our courts "may overturn the Parole Board's decisions only if they are arbitrary and capricious." Ibid. With respect to the Parole Board's factual findings, we do not disturb them if they "'could reasonably have been reached on sufficient credible evidence in the whole record.'" Id. at 172 (quoting Trantino v. N.J. State Parole Bd. ("Trantino IV"), 154 N.J. 19, 24 (1998)). We will not second-guess the Parole Board's application of its considerable expertise in sustaining the hearing officer's determination. See, e.g., In re Vey, 272 N.J.Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994).
Here, we are fully satisfied that the Board's revocation of Merz's parole and the imposition of a twelve-month FET was supported by substantial credible evidence in the record. Merz was in prison on an aggravated manslaughter charge for killing a pregnant woman while driving drunk. He did not dispute that, as a special condition of his parole, he was not to purchase, possess, or consume alcohol. He admitted he violated this provision at the time of his arrest and again at the revocation hearing. The Board's decision to revoke Merz's parole under these circumstances and to impose a twelve-month FET was neither arbitrary or capricious.
Similarly, the record fully supports the Board's subsequent decision to deny Merz's parole request and to impose a twenty-seven month FET. Merz's previously failed experience on parole and probation and his continued failure to appreciate the gravity of his prior offense, amply support the Board's decision to deny parole The twenty-seven-month FET imposed by the Board is the standard FET for an inmate serving a sentence for aggravated manslaughter NJAC 10A:71-321(a)1 We discern no basis to disturb the Board's decision.