IN THE MATTER OF TERRILL PAUL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3905-08T23905-08T2

IN THE MATTER OF TERRILL PAUL

___________________________________

 

Argued April 28, 2010 - Decided

Before Judges Cuff and Waugh.

On appeal from the Final Agency Decision of the New Jersey State Parole Board.

Carol J. Sands, Assistant Deputy Public Defender, argued the cause for appellant Terrill Paul (Yvonne Smith Segars, Public Defender, attorney; Ms. Sands, of counsel and on the brief).

Christopher C. Josephson, Deputy Attorney General, argued the cause for respondent New Jersey State Parole Board (Paula T. Dow, Attorney General; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Josephson, on the brief).

PER CURIAM

Appellant Terrill Paul, who is subject to community supervision for life (CSL) pursuant to N.J.S.A. 2C:43-6.4, appeals the final agency decision of the New Jersey State Parole Board requiring him to return to New Jersey from Georgia and to reside in New Jersey so that he can be subject to regular supervision by the Parole Board in New Jersey. We remand to the Parole Board for the development of a full factual record and a clear articulation of the Parole Board's reasons for requiring Paul's physical presence in New Jersey in light of the disruption it would cause for him and his family, a mere four months before he can seek release from CSL.

I.

We discern the following factual and procedural background from the relatively sparse record before us.

In 1995, Paul pled guilty to endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a). The charge was apparently based upon consensual sexual conduct with a younger female when Paul was eighteen years old. Paul was sentenced to two years of probation, community service, and the required penalties and fees. At the time of sentencing, Paul had no other adult offenses.

Although such a conviction should have subjected Paul to CSL, he was not sentenced to CSL at that time. He successfully completed his period of probation. He apparently complied with N.J.S.A. 2C:7-2, which required him to register as a sex offender. For example, in 2000, his registration reflected that he was in the United States Army Reserve, serving in Kosovo. Paul moved to the State of Georgia in 2004 and registered his change of address pursuant to N.J.S.A. 2C:7-2. On December 17, 2004, an official in Georgia verified his new address on a New Jersey sex offender registration form. Paul married, found employment, and established a family in Georgia.

In 2004, it was discovered that Paul had not been sentenced to CSL. His sentence was amended in April 2004 to include CSL. Because there is no transcript from the resentencing, it is not clear from the record whether Paul was present at the resentencing or was notified that it had occurred. Although the Parole Board suggests that he was notified and that he signed a document acknowledging the requirements of CSL, that document is not contained in the record. In addition, it is not clear whether he moved to Georgia before or after his sentence was amended to include CSL, or whether he was aware of the CSL amendment when he moved to Georgia.

In July 2005, Paul was charged with a fourth-degree offense, N.J.S.A. 2C:43-6.4(d), for violating three conditions of CSL: failing to report as instructed, moving from his approved residence, and relocating out of state. It is not clear when Paul learned of the indictment. After missing a pre-arraignment conference for these charges, a bench warrant was issued for his arrest. Paul was subsequently arrested in Georgia and returned to New Jersey. He was released on his own recognizance on January 5, 2006, and the charges were later dismissed.

It appears that, after consultation with a parole officer, Paul was permitted to return to Georgia pending disposition of an application to have his parole supervision transferred to Georgia. As part of that process, he was required to have a psychological evaluation. The psychologist concluded that Paul had no "signs of mental illness" and was "under low stress because he has good coping resources." The examiner found "[n]o abnormal sexual ideation," and indicated that "his profile is different from a confirmed pedophile." The examiner concluded, based upon the available information, that there was no evidence that Paul is "dangerous to a child or a risk to the community," that he had "a low probability of a repeat offense," and that he was "not seen as a danger to the children of his wife."

After returning to Georgia, Paul began reporting to his parole officer in New Jersey by telephone. The Parole Board attempted to transfer his supervision to Georgia on two occasions. Georgia declined both requests. The first denial was based on the fact that Paul was living with a non-biological child, his wife's child from a prior relationship, in violation of Georgia's own parole regulations. After that situation was apparently remedied, the second denial was based on his having moved to Georgia prior to submission of the transfer application. There is, however, nothing in the record to suggest that Paul's residence in Georgia is unlawful under Georgia law.

By letter dated March 6, 2009, the Parole Board demanded that Paul return to New Jersey and establish residency so that he could be supervised in New Jersey. He was told that he would be charged with violation of his CSL if he did not return by April 10, 2009. Through a letter from the Office of the Public Defender dated March 30, 2009, Paul requested a stay pending appeal of the requirement that he return to and reside in New Jersey. The Parole Board denied the stay by letter dated April 3, 2009.

After the Parole Board denied the stay, Paul applied to us for an emergent stay. On April 6, 2009, we granted Paul's application and stayed the Parole Board's action pending resolution of this appeal.

II.

Paul raises the following issues on appeal:

POINT I: BY FORCING THE APPELLANT TO RETURN TO NEW JERSEY, FIVE YEARS AFTER HIS SUCCESSFUL ESTABLISHMENT OF RESIDENCE IN ANOTHER STATE, THE NEW JERSEY STATE PAROLE BOARD IS ACTING IN DIRECT VIOLATION OF THE PRIMARY PURPOSE OF MEGAN'S LAW TO PROTECT NEW JERSEY CITIZENS. SANCHEZ v. N.J. STATE PAROLE BOARD, 368 N.J. SUPER. 181, 189 (APP. DIV. 2004).

POINT II: THE PAROLE BOARD'S ACTION TO FORCIBLY REQUIRE T.P. TO RETURN TO NEW JERSEY, CAUSING HIM TO LOSE HIS HOME AND SEPARATING HIM FROM HIS FAMILY VIOLATES FUNDAMENTAL CONSTITUTIONAL RIGHTS.

A. THE BOARD'S DECISION VIOLATES T.P.'S FUNDAMENTAL CONSTITUTIONAL RIGHT TO TRAVEL, INCLUDING HIS RIGHT TO MOVE FROM ONE STATE TO ANOTHER WITHIN OUR FEDERAL SYSTEM.

B. THE BOARD'S DECISION VIOLATES T.P.'S RIGHT TO ASSOCIATE WITH HIS FAMILY MEMBERS, TAKING HIM AWAY FROM HIS WIFE AND THREE CHILDREN.

POINT III: THE PAROLE BOARD'S DECISION IS ARBITRARY AND CAPRICIOUS AS IT DOES NOT FULFILL THE REQUIREMENT OF REDUCING THE RISK OF THE REGISTRANT'S RECIDIVISM AND VIOLATES HIS DUE PROCESS RIGHT TO NOTICE AND A HEARING.

A. THE PAROLE BOARD'S ACTION IS ARBITRARY AND CAPRICIOUS AS IT VIOLATES THE PURPOSE OF PAROLE SUPERVISION TO REDUCE THE INDIVIDUAL'S RISK FOR RECIDIVISM.

B. THE PAROLE BOARD'S ACTION VIOLATES T.P.'S DUE PROCESS RIGHT TO NOTICE AND A HEARING ON THE CONDITIONS OF HIS PAROLE SUPERVISION.

Our role in reviewing the decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that there was a lack of fair support in the evidence; or that the decision violated legislative policies. In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Further, decisions of administrative agencies carry with them a presumption of reasonableness. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). We may not vacate an agency's determination because of doubts as to its wisdom or because the record may support more than one result. De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985).

Paul relies primarily on our opinion in Sanchez v. New Jersey State Parole Board, 368 N.J. Super. 181 (App. Div. 2004), appeal dismissed, 187 N.J. 487 (2006). That case involved a CSL defendant who sought to live in New York, which had refused to accept his transfer under the Uniform Act for Out-of-State Parolee Supervision (UAOPS), N.J.S.A. 2A:168-14 to -17. Id. at 188-89. New York later replaced the UAOPS with the Interstate Compact for Adult Offender Supervision (ICAOS), N.J.S.A. 2A:168-26 to -39. Id. at 189. However, the outcome would not have changed. Ibid.

Noting that "[t]he Legislature's primary purpose in enacting Megan's Law was to increase the protection of the citizens of New Jersey from recidivism by CSL defendants," we held that "[t]he spirit of the original Megan's Law is best served by interpreting it to permit CSL defendants who otherwise qualify for residency in another state under UAOPS to live in that state even if that state declines supervision." Id. at 188. We added that "the Parole Board may make the change in residency 'subject to conditions appropriate to protect the public and foster rehabilitation[,]' N.J.S.A. 2C:43-6.4(b)." Id. at 188-89.

The Parole Board seeks to distinguish Sanchez on the grounds that Georgia turned Paul's application down because he had moved there before he received permission under the compact. According to ICAOS Advisory Opinion 9-2006, a receiving state "can properly reject the request for transfer of such an offender, until returned to the sending state, due to the prior failure of the sending state to comply with the requirements of the compact and [its] rules." Although it "can properly" do so, we do not read the opinion as requiring the receiving state to deny the application on that basis.

As we have noted, the record is unclear as to whether Paul's move to Georgia took place before or after he knew he was subject to CSL. Nor is it clear whether that would make a significant difference under the circumstances of this case, inasmuch as we are reviewing an administrative decision of New Jersey's Parole Board, rather than Georgia's.

Given the deference we owe administrative agencies, we are reluctant to reach the merits of this case on the basis of an incomplete record and without a full explanation of the Parole Board's reasons, based upon the particular facts of this case, for declining to supervise Paul in Georgia instead of forcing him to live in New Jersey. Consequently, we remand to the Parole Board for further proceedings consistent with this opinion.

Although we do not retain jurisdiction, we continue the stay of the Parole Board's requirement that Paul return to New Jersey pending completion of the remand.

 
Remanded, stay continued.

There is a suggestion in the record that he may have had a juvenile record, but, if so, the nature of any juvenile offenses is not clear.

As originally enacted, the statute was enforceable only through indictment for failure to abide by the conditions of CSL. The Legislature changed the statute in 2003 to provide the Parole Board with additional enforcement mechanisms. See L. 2003, c. 267, 1. However, the change only applies to offenses committed after the amendment. See Sanchez v. N.J. State Parole Bd., 368 N.J. Super. 181, 185-86 (App. Div. 2004), appeal dismissed, 187 N.J. 487 (2006).

Georgia adopted ICAOS in 2002. See Ga. Code Ann. 42-9-81 (2010).

The remand is without prejudice to Paul's right to petition for release from CSL pursuant to N.J.S.A. 2C:43-6.4(c), which provides that release may be granted

only upon proof by clear and convincing evidence that the person has not committed a crime for 15 years since the last conviction or release from incarceration, whichever is later, and that the person is not likely to pose a threat to the safety of others if released from parole supervision.

Paul, who was sentenced to probation rather than incarceration, pled guilty on September 25, 1995. The judgment of conviction is dated November 17, 1995. Consequently, it would appear that Paul can make his application later in 2010.

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A-3905-08T2

RECORD IMPOUNDED

July 26, 2010