ANDREW NESMITH v. NEW JERSEY STATE PAROLE BOARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3318-04T33318-04T3

ANDREW NESMITH,

Petitioner-Appellant,

v.

NEW JERSEY STATE

PAROLE BOARD,

Respondent-Respondent.

________________________________________________________________

 

Submitted December 13, 2005 - Decided

Before Judges Lefelt and Hoens.

On appeal from a Final Decision of the

New Jersey State Parole Board.

Appellant submitted a pro se brief.

Peter C. Harvey, Attorney General,

attorney for respondent (Patrick

DeAlmeida, Assistant Attorney General,

of counsel; Kimberly A. Sked, Deputy

Attorney General, on the brief).

PER CURIAM

On May 27, 2003, the New Jersey State Parole Board paroled petitioner, Andrew Nesmith, from a seven-year sentence for theft by unlawful taking and resisting arrest. At the time of his parole, petitioner had two years, ten months, and one day to serve on his sentence. Petitioner violated parole almost immediately by failing to report to his parole officer. On November 5, 2003, petitioner was arrested and returned to custody. A revocation hearing was held on August 19, 2004, and a hearing officer recommended that parole be revoked. On September 1, 2004, the Parole Board affirmed the recommendation and revoked petitioner's parole, establishing a twelve-month future eligibility term (FET), applied retroactive by petitioner's return to custody. Petitioner now appeals from the Parole Board's February 9, 2005 final administrative determination denying parole and imposing a fourteen-month FET.

Petitioner argues that, because he is being imprisoned only as a parole violator, the Parole Board had no right to set another FET after he served the original twelve-month term. Thus, petitioner claims the State should have released him upon completion of the twelve-month term. In addition, petitioner argues that having been returned to custody solely because of a failure to report to his parole officer, the Parole Board had no right to consider factors that related to his original crime. Petitioner also complains that his due process rights were violated when he was not provided a revocation hearing within sixty days of being returned to custody and when he was returned to custody without being advised of the penalties that the Parole Board could impose upon his return.

Petitioner misconceives the nature of parole. Parole does not expunge or cancel the original sentence imposed on defendant. Parole is a conditional release from the sentence. Once parole is revoked, the remaining portion of petitioner's sentence is reactivated. The remaining portion of a defendant's sentence is tolled during defendant's release from custody, but the sentence remains the same. Once re-incarcerated, the State can require a former parolee to serve the remainder of his original sentence, in this case, two years, ten months and one day.

When the Parole Board is predicting whether an inmate, who has been returned to custody for violation of parole, would once again violate parole if released, N.J.S.A. 30:4-123.53(a), common sense dictates that such a difficult decision be informed by as many pertinent factors as possible. Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 360 (1973). Every factor mentioned in N.J.A.C. 10A:71-3.11(b), may be considered by the Parole Board in deciding whether to parole the inmate. The Board is not restricted to only those factors relating to the violation of parole.

In this case, the Board properly considered, among other factors, petitioner's extensive and repetitive prior record, previous failed parole and probation opportunities, insufficient problem resolution, lack of insight into criminal behavior, minimization of criminal conduct, and insufficient addressing of a substance abuse problem.

The Parole Board in such a case is also not restricted to one twelve-month FET. Hare v. N.J. State Parole Bd., 368 N.J. Super. 175, 178 (App. Div.), certif. denied, 180 N.J. 452 (2004). "Once the initial FET is imposed following revocation of parole, the Board is at liberty to evaluate defendant as it would any other inmate seeking parole." Ibid. We see no relevant distinction, for parole purposes, between Hare violating parole by using drugs and defendant's failure to report to his parole officer. Once defendant was returned to custody, as in Hare, the only term limitation would be that re-incarceration "not exceed the term specified in the original sentence." N.J.S.A. 30:4-123.65; Hare, supra, 368 N.J. Super. at 179.

Finally, we agree with the State that petitioner's contentions with regard to his revocation of parole are not properly before us. Defendant's March 7, 2005, Notice appealed only "from Final decision of the New Jersey State Parole Board, which denied Appellant Parole and imposed a Future Parole Eligibility of 14 Months." See Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41 (1994). The time for defendant's appeal from his August 2004 revocation hearing has long since passed. R. 2:4-1.

 
Affirmed.

(continued)

(continued)

5

A-3318-04T3

December 22, 2005