JAMES J. KRIVACSKA v. SPECIAL CLASSIFICATION REVIEW BOARD

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1217-08T3

JAMES J. KRIVACSKA,

Appellant,

v.

SPECIAL CLASSIFICATION

REVIEW BOARD,

Respondent.

___________________________________________

August 24, 2011

Submitted March 7, 2011 Decided

Before Judges A. A. Rodr guez and Grall.

On appeal from the Special Classification Review Board.

James J. Krivacska, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel and on the brief; Daniel M. Vannella, Deputy Attorney General, on the brief).

PER CURIAM

James Krivacska appeals from the decision of the Special Classification Review Board (SCRB) recommending that the State Parole Board deny his parole request. We affirm.

Following a jury trial, Krivacska was convicted of one count of aggravated sexual assault; two counts of second-degree endangering the welfare of a child; and two counts of aggravated criminal sexual contact. State v. Krivacska, 341 N.J. Super. 1, 11 (App. Div.), certif. denied, 170 N.J. 206 (2001), cert. denied, Krivacska v. N.J., 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002). He was sentenced to twenty-six years at the Adult Diagnostic and Treatment Center (ADTC). We affirmed on direct appeal. Ibid.

During his time at the ADTC, Krivacska has been subject to semi-annual "Routine Reviews." Reports from these reviews reveal that although Krivacska has made "general progress," he has failed to participate in support groups and admit or discuss his convictions or the facts underlying those convictions.

In 2008, Krivacska requested a recommendation for parole from the SCRB. As part of his request, Krivacska met with his primary therapist, Richard G. Stiga, Ph.D., on April 4, 2008. According to Krivacska, Stiga stated at this meeting that "he was inclined to recommend . . . parole." The two met again on May 15, 2008. After Krivacska explained his employment and residence plans, Stiga allegedly "advised [Krivacska] that [Stiga] had been advised of a department policy that precluded him from making a positive parole recommendation for anyone who doesn't admit to the offense they were convicted of." The State contends that no such policy exists.

Stiga summarized his evaluation of Krivacska:

The MnSOST-R and STATIC-99 are actuarial instruments to estimate the risk for sexual reoffending. Mr. Krivacska scored in the low risk category on the MnSOST-R and in the moderate high risk category on the STATIC-99. Mr. Krivacska has consistently denied committing the sexual offense for which he was convicted. He has cited this and his legal appeal as his reasons for not discussing details of the instant offense and any sex offending dynamics. However, Mr. Krivacska is a convicted sex offender and was ordered by the Court to participate in sex offender specific treatment at the ADTC. As he has not, to date, engaged in the full sex offender treatment program, he cannot be recommended for parole consideration at this time. Further inpatient sex offender treatment is recommended.

The SCRB made the following findings after Krivacska's hearing:

. . . Krivacska states he created victims and admits to some guilt even though he is presently in the appeal process. He states he felt he was too arrogant in the past and hurt people by his actions. He says he violated trust and those actions got him in this place. He states he has been legally convicted and feels he can make a safe adjustment to society. He states if he participates in the ADTC Treatment Program, he would be admitting he is guilty as convicted. He states he was hopeful he would be recommended to the New Jersey State Parole Board . . . by the SCRB based on risk factors. He states he was surprised the SCRB was not able to help him [obtain parole.] . . . He states he realizes he is legally convicted as a sex offender, but still denies being a sex offender.

Based on Stiga's report and these findings, the SCRB declined to recommend Krivacska to the parole board on June 10, 2008. Krivacska had failed to "engage[] in the full sex offender specific treatment program and has consistently denied committing the sexual offense for which he was convicted." Therefore, he was "not likely . . . to be able to make an acceptable social adjustment to the community."

Krivacska attempted to appeal the SCRB decision pursuant to N.J.A.C. 10A:9-8.8. The SCRB rejected the request, explaining that the appellate procedure in N.J.A.C. 10A:9-8.8 was only available to inmates who had been denied a recommendation to the parole board on two consecutive appearances. The SCRB had only denied Krivacska's request once. Unable to obtain reconsideration, Krivacska filed the present appeal.

He also moved to settle the record, seeking "[t]he written policy of the ADTC sex offender treatment program upon which Dr. Stiga relied to change his final report from a positive to a negative recommendation for parole, and which Dr. Stiga stipulated requires that ADTC patients must admit to their instant offense in order to receive a positive parole recommendation from treatment staff." We granted the motion in part, but denied the motion as to the supposed ADTC policy because "no written policy exists."

On appeal, Krivacska contends:

[THE] STATE HAS [THE] BURDEN OF PROVING, BY PREPONDERANCE OF EVIDENCE, THAT APPELLANT IS A SEX OFFENDING RECIDIVIST IN ORDER TO DENY APPELLANT HIS LIBERTY INTEREST IN PAROLE.

[THE] SCRB DENIAL OF POSITIVE PAROLE RECOMMENDATION [IS AN] ARBITRARY AND CAPRICIOUS DENIAL OF DUE PROCESS UNDER STATE AND FEDERAL CONSTITUTION.

Krivacska argues that he has a fundamental liberty interest in parole. Consequently, he argues that the State must prove by a preponderance of the evidence that, based on the "Social Adjustment" standard, he "will recidivate if released on parole." Krivacska argues that the State did not meet this standard with "credible, reliable and relevant evidence," and failed to consider evidence favorable to his case. We disagree.

Defendants convicted of sexual crimes may be sentenced to incarceration in the ADTC where the inmate appears amenable to therapy to reduce his risk of recidivism. N.J.S.A. 2C:47-1. An inmate in the ADTC "shall become eligible for parole consideration upon referral to the State Parole Board of the offender's case by [the SCRB.]" N.J.S.A. 2C:47-5(a). If the offender can demonstrate a "satisfactory level of progress" then the SCRB should make a referral that the inmate be granted parole. Ibid. After a referral from the SCRB, the State Parole Board "shall" grant parole unless they determine that the evidence "indicates by a preponderance of the evidence that the offender has failed to cooperate in his or her own rehabilitation or that there is a reasonable expectation that the offender will violate conditions of parole . . . if released on parole at that time." Ibid. (emphasis added); N.J.A.C. 10A:9-8.1 ("Inmates committed to the [ADTC] shall be eligible for parole consideration only upon recommendation by the S.C.R.B. pursuant to N.J.S.A. 2C:47-5").

The SCRB should make its decision regarding whether to recommend parole for inmates based on semi-annual reports concerning "the physical and psychological condition of each inmate." N.J.A.C. 10A:9-8.4(a). Each report should include a recommendation whether the SCRB should recommend parole. N.J.A.C. 10A:9-8.4(b). If the SCRB conducts an "in-person review," the inmate "shall be afforded the opportunity to present any matter which he or she believes is related to his or her possible parole." N.J.A.C. 10A:9-8.4(f). In addition, the members of the SCRB shall be given copies of a report from the "primary therapist, which shall include a summary of the inmate's overall adjustment and progress in therapy." N.J.A.C. 10A:9-8.4(i)(1).

After the hearing, the SCRB must issue a written decision. N.J.A.C. 10A:9-8.6(e). Its decision, however, is "within the sole discretion of the [SCRB] and may include therapeutic issues deemed to require additional work." N.J.A.C. 10A:9-8.6(f).

The SCRB decision is an agency decision. Reversal is warranted only where the agency's decision is "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole" Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

As an initial matter, we note that the SCRB is not required to apply the Social Adjustment standard on which Krivacska relies. The SCRB must review specific evidence to determine where the inmate has achieved a "satisfactory level of progress." N.J.S.A. 2C:47-5(a). Contrary to Krivacska's argument, the SCRB has the discretion and the expertise to choose the standard by which an inmate will be evaluated.

Besides Krivacska's general dissatisfaction with the SCRB decision and Stiga's report, he does not demonstrate how the findings were arbitrary or capricious. Stiga issued detailed findings after interviewing Krivacska, and the SCRB found these determinations persuasive after a full review of the evidence. Further, according to the express language of N.J.S.A. 2C:47-5(a), the SCRB may refuse to recommend parole for an inmate who fails to cooperate with treatment.

We share his concern about the members' reliance on his failure to admit his guilt to crimes that he denies committing despite the jury's verdict. See In re Commitment of E.S.T., 371 N.J. Super. 562, 577 n.7 (App. Div. 2004) (observing that the issue of whether an offender's "denial of the offense and refusal of treatment would be entitled to any weight" where that offender was convicted by a jury was not before the court on an appeal by a defendant who had pled guilty). But we cannot conclude that the SCRB's decision to deny a recommendation for parole was grounded on his failure to admit guilt. The SCRB's focus was Krivacska's failure to participate in the therapy offered.

Krivacska contends:

PAROLE CONDITIONED UPON ADMITTING GUILT IS A FORM OF COMPELLED SPEECH BANNED BY FREE SPEECH CLAUSE OF STATE & FEDERAL CONSTITUTIONS.

He argues the State is violating his First Amendment rights by compelling him to make inculpatory statements. We disagree.

The SCRB did not condition Krivacska's parole on his admission of his offenses. Instead, they found that his denial of committing the offenses was a factor that, taken with his failure to participate with the sexual offender treatment program, supported the determination that Krivacska was unable to make the adjustments necessary for parole.

Krivacska's argument is purely legal, and is one of first impression. Consequently, our analysis is plenary. State v. Gandhi, 201 N.J. 161, 176 (2010).

The First Amendment protects a citizen's right not to speak. Wooley v. Maynard, 430 U.S. 705, 714, 97 S. Ct. 1428, 1435, 51 L. Ed. 2d 752, 762 (1997). It is axiomatic, however, that this negative right is only implicated by government action compelling an individual to speak. See, e.g., Lehnert v. Ferris Faculty Ass'n., 500 U.S. 507, 516, 111 S. Ct. 1950, 1957, 114 L. Ed. 2d 572, 587-88 (employees forced to "financially support their collective-bargaining representative"), reh'g denied, 501 U.S. 1244, 111 S. Ct. 2878, 115 L. Ed. 2d 1044 (1991). For example, the government compelled speech where New Jersey police officers were faced with the choice "between self-incrimination or job forfeiture" in choosing whether to answer questions as part of a state investigation. Garrity v. N.J., 385 U.S. 493, 496, 87 S. Ct. 616, 618, 17 L. Ed. 2d 562, 565 (1967).

A recent United States Supreme Court case addressed an issue similar to those in the present case. In McKune v. Lile, 536 U.S. 24, 30-31, 122 S. Ct. 2017, 2023, 153 L. Ed. 2d 47, 55 (2002) (plurality opinion), the respondent, a convicted sex offender, sued the warden of a Kansas prison alleging violations of Fifth Amendment privilege against self-incrimination. The prison required convicted sex offenders to admit all prior sexual offenses as part of treatment. Ibid. Failure to participate resulted in a reduction of security privilege, visitation rights, earnings, work opportunities and access to the television. Ibid. Admissions could be used in future prosecution of that prisoner. Ibid.

Justice Kennedy wrote a plurality opinion in favor of Kansas, finding that conditioning prison privileges on cooperation with rehabilitative treatment was not compulsion. Id. at 48, 122 S. Ct. at 2032, 153 L. Ed. 2d at 66. Justice Kennedy explained that a criminal defendant or prisoner has choices and that "the government need not make the exercise of the Fifth Amendment privilege cost free." Id. at 41-42, 122 S. Ct. at 2029, 153 L. Ed. 2d at 62. The state has a strong interest in rehabilitating prisoners and admission of guilt is a step which Justice Stevens, in dissent, agreed, "clearly serves legitimate therapeutic purposes." Id. at 68, 122 S. Ct. at 2043, 153 L. Ed. 2d at 73; see also Jamgochian v. N.J. State Parole Bd., 196 N.J. 222, 238 (2008) (recognizing New Jersey's strong interest in rehabilitating sex offenders). Therefore, conditioning privileges on the prisoner's admission of guilt was not state "compulsion."

We agree with this interpretation. The State is not compelling appellant to speak. Rather, it is giving Krivacska a choice: (1) participate in rehabilitation and, if treatment is successful, have the opportunity to transition to society or (2) do not participate in treatment and remain in prison. Krivacska may exercise his right not to speak but, in so doing, may subject himself to serving his entire twenty-six year term.

Finally, Krivacska contends:

CONDITIONING APPELLANT'S PAROLE SOLELY ON SECURING AN ADMISSION OF GUILT VIOLATES STATE AND FEDERAL GUARANTEES AGAINST SELF-INCRIMINATION

He argues that the denial of his parole application for his failure to incriminate himself is a violation of his Fifth Amendment privilege against self-incrimination. We disagree.

The privilege against self-incrimination "does not expire until sentencing and upon exhaustion of . . . direct appellate remedies." Lewis v. Dept. of Corrs., 365 N.J. Super. 503, 506 (App. Div. 2004). Therefore, the State may not compel a prisoner to make inculpatory statements at any point prior to the finality of that prisoner's conviction. Id. at 506-07.

Here, Krivacska's conviction became final in 2002, when the United States Supreme Court denied certification. Krivacska, supra, 535 U.S. at 1012, 122 S. Ct. at 1594, 152 L. Ed 2d. at 510. Krivacska may no longer invoke his privilege against self-incrimination, and his contention is therefore without merit.