M.L.V. v. NEW JERSEY STATE PAROLE BOARD et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2588-03T23859-03T2

M.L.V.,

Appellant,

v.

NEW JERSEY STATE PAROLE

BOARD and GRACE ROGERS,

Respondents.

_______________________________________

 

Submitted September 13, 2006 - Decided October 24, 2006

Before Judges Wefing, C. S. Fisher and Yannotti.

On appeal from final decisions of the New Jersey State Parole Board and the Adult Diagnostic and Treatment Center.

M.L.V., appellant pro se.

Anne Milgram, Acting Attorney General, attorney for respondents (Patrick DeAlmeida, Assistant Attorney General, of counsel; Nicole Morris, Deputy Attorney General, on the brief).

PER CURIAM

M.L.V. appeals from a final determination of the New Jersey State Parole Board (Board) placing an administrative hold on his scheduled parole release and a decision by the Adult Diagnostic Treatment Center (ADTC) referring M.L.V. to be screened for civil commitment under the Sexually Violent Predators Act N.J.S.A. 30:4-27.24 to -27.38 (SVPA or the Act). We affirm.

We briefly summarize the relevant facts. M.L.V. was convicted in 1976 of rape while armed. He also was convicted of breaking and entering with intent to steal while armed. Several sentences were imposed for these convictions, including an indeterminate term of up to 30 years for the rape. M.L.V. was incarcerated at the ADTC. M.L.V. escaped from that facility on August 24, 1979. He was captured one month later; however, while he was at large, M.L.V. committed a robbery, for which he was convicted and sentenced to a twelve-year custodial term, to run concurrently with the previously imposed sentences. M.L.V. also was convicted of escape and sentenced to a term of two to three years, consecutive to the sentences M.L.V. was then serving. On March 16, 1993, M.L.V. was paroled.

In 1995, while he was on parole, M.L.V. picked up a hitchhiker who he said offered to perform certain sex acts for money. M.L.V. agreed and paid the woman in advance. However, the woman refused to perform a sex act and refused to return a portion of the money, claiming that she dropped the money outside the building where M.L.V. had taken her. M.L.V. tied the woman to a chair and went outside to look for the money. The woman managed to escape and called the police. The charges arising from this incident were reduced to simple assault and M.L.V. pled guilty. He was sentenced to six months in the county jail. Although M.L.V. had violated the conditions of parole, the Board did not revoke M.L.V.'s parole.

On October 8, 1997, M.L.V. was arrested for soliciting a prostitute, who was an undercover police officer. M.L.V. pled guilty on October 14, 1997 and was fined. The Board issued a parole warrant and M.L.V. was returned to custody. On November 26, 1997, a panel of the Board revoked M.L.V.'s parole and referred him for an evaluation pursuant to State v. Dalonges, 128 N.J. Super. 140 (App. Div. 1974).

In Dalonges, we established a three-part test for revocation of the parole of persons convicted under the former Sex Offender Act (SOA), N.J.S.A. 2A:164-3 to -13 (repealed by L. 1978, c. 95):

[T]he parole of a sex offender cannot properly be revoked unless the reason for revocation is based at least in part upon the finding by the Parole Board and based on a determination by the [ADTC] founded on adequate medical reasons, that defendant's violation of parole reflects emotional or behavioral problems as a sex offender and evidences that he is incapable of making any acceptable social adjustment in the community because of such problems and in fact requires further specialized treatment as mandated by N.J.S.A. 2A:164-5.

[Id. at 148-49.]

The Dalonges test was codified by the Department of Corrections in its administrative regulations. See N.J.A.C. 10A:71-7.19.

M.L.V. was evaluated by Kenneth L. McNeil, Ph.D. (McNeil), who rendered two reports addressing the Dalonges factors. McNeil's report was forwarded to the Board panel and on August 19, 1998, the panel re-affirmed its decision to revoke M.L.V.'s parole. M.L.V. did not file an administrative appeal from the panel's decision until November 10, 2000; however, the Board agreed to entertain the appeal even though it had not been submitted within 180 days of the inmate's receipt of the decision, as required by N.J.A.C. 10A:71-4.3(a). By decision dated July 25, 2001, the full Board affirmed the panel's determination to revoke parole.

M.L.V. appealed and we remanded to the Board for reconsideration. M.L.V. v. N.J. State Parole Board, A-5103-00T3 (September 30, 2002) (slip. op. at 7). We noted that McNeil had not squarely addressed the three prongs of the Dalonges test and his conclusions were marred by certain inconsistencies as well as by his conclusory finding that the second part of the test, capability of social adjustment in the community, had not been met. Id. at 6.

We added that there were "other troubling aspects" with McNeil's reports:

The State concedes that soliciting a prostitute, particularly one who, as here, has apparently made an overt invitation, is hardly evidence of the emotional or behavioral problems of a sex offender. It is evident therefore that it was not this parole violation that motivated the Parole Board but rather this violation combined with the 1995 hitchhiker incident, which the Parole Board, at the time, apparently did not view as requiring revocation. It is extremely doubtful that the solicitation of prostitution could by itself have satisfied the three-prong Dalonges test, and there is no adequate explanation in this record of how the gravity of the 1995 incident was enhanced by the later and relatively innocuous offense of soliciting a prostitute, an act that appellant had previously engaged in from time to time wihtout untoward consequences to anyone. We are also concerned by the fact that while appellant has been attending the ADTC Aftercare Program since his 1993 parole, no consideration was given to his progress there . . . .

[Ibid.]

We ordered that M.L.V. be reevaluated by a different mental health professional. Id. at 7-8.

Following our remand, M.L.V. was examined by Mark Frank, Ph.D. (Frank), who rendered a report in which he addressed the Dalonges factors. Frank concluded that the 1997 incident in which M.L.V. solicited a prostitute was reflective of his emotional or behavioral problems as a sex offender. However, Frank found that the evidence did not establish that M.L.V. was incapable of making an acceptable social adjustment in the community. Frank further found that M.L.V. required additional specialized treatment as a sex offender but he did not require continued custodial supervision. Based on Frank's report, the Board issued a decision dated January 22, 2003 reinstating M.L.V.'s parole upon the submission by M.L.V. of a community plan and acceptance of the same by the Board.

In conformity with its usual procedures, M.L.V. was evaluated at the ADTC prior to his release. In a "termination report" dated March 27, 2003, Emili Rambus, Psy.D. (Rambus), stated that M.L.V.'s score on the Static 99 indicated that he was at high risk for sexual reoffending and his score on the MnSOST-R suggested a moderate risk. Rambus said that the high score on the Static 99 was mitigated by M.L.V.'s therapeutic progress and the "strict requirements" of his parole supervision. Rambus concluded that, from a clinical viewpoint, continuation on parole was appropriate.

However, on April 1, 2003, the ADTC Institutional Release Committee (IRC) reviewed the matter and determined that M.L.V. should not be released. He was referred for psychiatric screening for possible civil commitment based on his high score on the Static 99 and his offense history. The Civil Commitment Review Committee (CCRC) at the ADTC concurred in the decision to refer M.L.V. for psychiatric screening. On April 2, 2003, the Board placed an administrative hold on M.L.V.'s parole release because he was being considered for commitment and there was a need to review new information not previously considered.

On April 21, 2003, psychiatrist Howard Gilman, M.D. (Gilman) executed a clinical certificate in which he diagnosed M.L.V. as suffering from sexual sadism and anti-social personality disorder. Gilman stated that M.L.V. suffers from a mental abnormality, as defined in the Act, or personality disorder, that makes him likely to engage in acts of sexual violence if not confined to a secure facility for control, care and treatment. Gilman stated that in his opinion, M.L.V. has serious difficulty controlling his sexually inappropriate impulses and there is a significantly elevated risk that he will sexually reoffend.

On April 22, 2003, psychiatrist Lawrence A. Siegel, M.D. (Siegel) executed a clinical certificate in which he diagnosed paraphilia, not otherwise specified (NOS), probable sexual sadism and anti-social personality disorder. Siegel noted that M.L.V.'s scores on the actuarial tests placed him in a group of individuals who are at high risk to re-offend. Siegel wrote that in his opinion, if M.L.V. were released, "he would be at high risk to sexually reoffend and would have serious difficulty refraining from acting on his sexual impulses due to the combination of his personality organization and deviant arousal pattern."

On April 24, 2003, the Attorney General filed a petition in the Law Division seeking M.L.V.'s commitment pursuant to the SVPA and sought a temporary order of commitment pursuant to N.J.S.A. 30:4-27.28. On April 29, 2003, the judge entered an order finding that there was probable cause to believe that M.L.V. is a sexually violent predator in need of commitment and directing his temporary commitment at the Special Treatment Unit (STU) pending a final hearing. On April 30, 2003, the Parole Board vacated the administrative hold. On June 6, 2003, M.L.V. was transferred to the STU.

M.L.V. raises the following arguments for our consideration in his initial brief:

POINT I:

WHERE THE PAROLE BOARD HAS GRANTED PAROLE, THE ISSUE OF AN INMATE'S ULTIMATE RELEASE HAS BEEN DECIDED, NEITHER THE SVPA NOR OTHER LAW ALLOWS THE ADMINISTRATOR OF THE ADTC TO CIRCUMVENT THAT DECISION.

POINT II:

PRINCIPLES OF ADMINISTRATIVE COMITY BAR THE ADTC FROM CIRCUMVENTING THE PAROLE BOARD'S DECISION AND THE EXCLUSIVE JURISDICTION OF THIS COURT.

POINT III:

THE RELEVANT STATUTES SUPPORT THE CONCLUSION THAT THE PAROLE BOARD HAS EXCLUSIVE JURISDICTION OVER THE QUESTION OF WHETHER M.L.V. SHOULD BE RELEASED.

POINT IV:

THE REFERRAL OF M.L.V. TO THE STU WAS IN RETALIATION FOR PROTECTED CONDUCT (APPEAL OF PAROLE DECISION) AND IS THEREFORE BOTH INVALID AND AN ABUSE OF DISCRETION ON THE PART OF THE ADTC OFFICIALS.

POINT V:

THE PROCEDURES OF THE ADTC ADMINISTRATOR AND THE IRC VIOLATE THE DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION.

POINT VI:

THE DENIAL OF ALLOWING M.L.V. TO BE AT OR PARTICIPATE IN ANY REVIEW HEARINGS TO DETERMINE WHETHER M.L.V. IS A SEXUALLY VIOLENT PREDATOR VIOLATES HIS FUNDAMENTAL RIGHT TO DUE PROCESS AS GUARANTEED BY THE UNITED STATES CONSTITUTION.

POINT VII:

THE STATE PAROLE BOARD CANNOT ESTABLISH THAT IT WAS JUSTIFIED IN PLACING AN ADMINISTRATIVE HOLD ON M.L.V.'S PAROLE RELEASE AND THE PROCESS OF SCREENING M.L.V. FOR CIVIL COMMITMENT IS IN DIRECT CONFLICT WITH THE LAWS GOVERNING PAROLE AND THE SVPA.

POINT VIII:

THE ACTIONS OF THE PAROLE BOARD, THE ADTC ADMINISTRATOR, THE IRC, AND THE ATTORNEY GENERAL'S OFFICE VIOLATES THE EX POST FACTO CLAUSES OF THE UNITED STATES CONSTITUTION AND THE NEW JERSEY CONSTITUTION.

In a supplemental brief, M.L.V. raises the following arguments:

POINT I:

THE PAROLE BOARD SHOULD NOT BE ALLOWED TO USE ONE DOCUMENT TO GRANT PAROLE AND THEN TO USE THE SAME DOCUMENT TO MAKE A DECISION TO PLACE APPELLANT'S PAROLE RELEASE ON HOLD.

POINT II:

THE ADTC ADMINISTRATOR SHOULD NOT BE PERMITTED TO CIRCUMVENT OR OVERRULE A MEDICAL TREATMENT PROFESSIONAL'S DECISION THAT APPELLANT WAS SUITABLE TO BE RELEASED ON PAROLE.

POINT III:

THE RESPONDENTS CANNOT ESTABLISH THAT APPELLANT SUFFERED FROM A CURRENT MENTAL CONDITION TO JUSTIFY HAVING APPELLANT SCREENED FOR CIVIL COMMITMENT.

In his reply brief, M.L.V. advances the following additional contentions:

POINT I:

THE PAROLE BOARD'S DECISION TO SUSPEND M.L.V.'S PAROLE WAS ARBITRARY AND CAPRICIOUS.

POINT II:

THE PRINCIPLE OF ADMINISTRATIVE COMITY SHOULD APPLY IN THIS MATTER.

POINT III:

THE APPELLANT SHOULD HAVE BEEN RELEASED ON PAROLE AND THE ATTORNEY GENERAL REFRAIN FROM INTERFERING WITH THE BOARD'S DECISION.

POINT IV:

THE RESPONDENTS' REQUEST TO HAVE ALL ASPECTS OF APPELLANT'S ARGUMENTS DISMISSED BASED ON HIS COMMITMENT IS NOT A DECISION MADE BY THE PAROLE BOARD AND SHOULD BE REJECTED.

We have considered these arguments in light of the record before us on this appeal. We are satisfied that the contentions are entirely without merit and therefore we affirm.

"In light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." In re Musick, 143 N.J. 206, 216 (1996) (citing Gloucester County Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390 (1993)). The judiciary can intervene only in "rare circumstances in which an agency action is clearly inconsistent with its statutory mission or other state policy." Ibid. In reviewing a final determination of the Parole Board, we consider: 1) whether the agency's action is consistent with the applicable law; 2) whether there is substantial credible evidence in the record as a whole to support the findings upon which the agency acted; and 3) whether in applying the law to the facts, the agency clearly erred in reaching a conclusion that could not have been reasonably made based on the relevant facts. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24 (1998).

We are convinced that the Board acted in accordance with the applicable administrative regulation when it placed the administrative hold on M.L.V.'s parole release. The Board's action was authorized by N.J.A.C. 10A:71-5.1(a), which provides

Any suspension by the Chairperson or a designated representative of a parole release date shall act to prohibit the release of the inmate by the Department or Commission on the original parole release date unless such suspension is subsequently vacated.

Furthermore, the Board acted reasonably in delaying M.L.V.'s parole release pending psychiatric evaluation and a determination by the Attorney General as to whether to initiate commitment proceedings pursuant to the SVPA.

Although Rambus stated in her "termination report" that it was appropriate to continue M.L.V.'s parole, she also noted that M.L.V.'s score on the Static 99 indicated that there was a high risk that M.L.V. would sexually reoffend if he was released into the community. That finding, along with M.L.V.'s offense history, which includes two rapes and more recent high risk behavior with prostitutes, was sufficient to warrant screening and referral so that the Attorney General could determine whether to seek M.L.V.'s commitment.

Indeed, the referral of this matter to the Attorney General was entirely consistent with the SVPA, which provides in pertinent part that, when it appears that a person may meet the criteria for commitment under the Act, "the agency with jurisdiction" must give written notice to the Attorney General prior to "the anticipated release from total confinement of a person who has been convicted of or adjudicated delinquent for a sexually violent offense." N.J.S.A. 30:4-27.27a(1).

The term "agency with jurisdiction" is defined in N.J.S.A. 30:4-27.26 to mean, "the agency which releases upon lawful order or authority a person who is serving a sentence or term of confinement, or is otherwise being detained or maintained in custody." This includes the State Department of Corrections. When such notice is given, the "agency with jurisdiction" must provide the Attorney General with "all information relevant to a determination of whether the person may be a sexually violent predator . . . . " N.J.S.A. 30:4-27.27b. The Attorney General then determines whether to initiate court proceedings for the person's involuntary commitment. N.J.S.A. 30:4-27.28.

In this matter, the agency with jurisdiction is the Department of Corrections (DOC), which operates the ADTC. N.J.S.A. 30:1B-8. The DOC was required by N.J.S.A. 30:4-27.27a(1) to inform the Attorney General of M.L.V.'s anticipated release from "total confinement" upon his parole release because the IRC and CCRC at the ADTC had determined that M.L.V. may meet the criteria of a sexually violent predator. As noted, these determinations were based upon M.L.V.'s high score on the Static 99 and his offense history.

We also are satisfied that there is no merit in M.L.V.'s argument that he was denied due process because he was not afforded an opportunity to be heard when the IRC evaluated him for referral to the Attorney General for civil commitment. That contention was rejected in Greenfield v. N.J. Dep't. of Corr., 382 N.J. Super. 254, 260-63 (App. Div. 2006). There, we stated:

In matters such as the one presented here, the screening committee serves very much the same function as the prosecutor who considers the possibility of a charge; the Attorney General serves as the analog of the grand jury. If a potential criminal defendant has no right of access to a grand jury or a prosecutor to attempt to avoid criminal prosecution, there is no reason to think a person subject to possible civil commitment under the [SVPA] has the right to be heard by the screening committee. Plaintiff has no more interest in the proceedings that determine whether the institution will refer the matter than he does in being present when the police determine to investigate a crime in which he may have been involved.

[Id. at 262.]

 
We have considered the other arguments raised by M.L.V. and find them not to be of sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

M.L.V. also has appealed the temporary and final orders of commitment entered by the Law Division. In an opinion also filed this date, we have affirmed the commitment orders. In re Civil Commitment of M.L.V., A-3859-03T2.

The Static 99 and the MnSOST-R are actuarial instruments used to predict sexual recidivism. In re Commitment of R.S., 339 N.J. Super. 507, 517-19 (App. Div. 2001), aff'd o.b., 173 N.J. 134 (2002).

(continued)

(continued)

14

A-3859-03T2

RECORD IMPOUNDED

October 24, 2006