EVERETT L. MONROE 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NOT FOR PUBLICATION WITHOUT THE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-5766-09T3

EVERETT L. MONROE,

Appellant,

v.

NEW JERSEY STATE PAROLE

BOARD,

Respondent.

______________________________

October 27, 2011

Submitted October 13, 2011 - Decided

Before Judges Harris and Koblitz.

On appeal from the New Jersey State Parole Board.

Everett L. Monroe-Bey, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jason S. Postelnik, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Everett L. Monroe is serving concurrent fifty-year sentences in North Carolina for two 1989 murders that he committed while subject to parole supervision in this State. He appeals from the final decision of the New Jersey State Parole Board (the Board) refusing to vacate the general fugitive parole warrant that it issued after Monroe failed to report, and the more specific warrant addressed to North Carolina officials pursuant to the Interstate Agreement on Detainers Act (IAD), N.J.S.A. 2A:159A-1 to -15; N.C.G.S. 15A-761 to -767, after Monroe's whereabouts were ascertained following his arrest there. We affirm.

I.

The limited administrative record reveals the following facts. In 1986, Monroe came under the supervision of the Board after completing a term of incarceration as part of a sentence for a 1979 armed robbery. In January 1989, Monroe went missing. Following an investigation, which revealed Monroe's failure to comply with several conditions of his parole, a fugitive parole warrant was issued on March 21, 1989, and a probable cause hearing was conducted on April 7, 1989. In Monroe's absence, the hearing officer found probable cause that Monroe had violated parole conditions as charged and authorized his arrest and confinement.

In May 1989, the Board learned that Monroe had been arrested and was incarcerated in North Carolina. It immediately lodged an IAD detainer, which subsists to the present. Monroe was convicted of the murders in North Carolina, where he remains imprisoned.

According to Monroe, "the [New Jersey] detainer/warrant is the sole instrument hindering [him] from all promotions in [North Carolina] due to [its] departmental policy." He further claims that as "a [North Carolina] inmate who has a detainer filed against him . . . [he] is . . . ineligible for beneficial programs available to inmates at the same level." Because approximately five months of parole supervision are left for the Board to oversee, Monroe contends that "good cause, amount of time served, a release date of 2026, coupled with other mitigating factors" combine to require the revocation of the Board's warrant.

After a campaign of letter writing by Monroe, the Board's two-person Adult Panel considered the issues raised in the correspondence in 2004. In a letter penned by the Chief of the Board's Revocation Unit, the Board wrote:

On October 13, 2004, the New Jersey State Parole Adult Panel formally revisited your situation and made the determination to return you to New Jersey for a Final Parole Revocation Hearing once you have completed the custodial portion of the sentence you are now serving.

The parole warrant currently lodged against you will remain in place.

A year later, a three-member panel of the Board affirmed this decision in a letter written by a successor Chief of the Board's Revocation Unit:

The New Jersey State Parole Board Three Member Adult Panel reviewed your situation, and on December 7, 2005, they affirmed the October 13, 2004 decision to return you to New Jersey to await a Final Parole Revocation Hearing once you have been released from the custodial portion of the sentence you are currently serving.

The parole violation detainer currently lodged against you will remain in place to ensure your return once you are released from North Carolina.

Five years later, in January 2010, Monroe again wrote to the Board pleading,

I owe New Jersey less than [five] months to complete the parole owed [versus] being incarcerated in [North Carolina] for over [twenty] years!! [North Carolina] will not allow me to progress through [its] system as long as the [New Jersey] detainer is lodged. In addition I know there is no legal mechanism to resolve this matter and I am fully aware of all remedies and viable options.

So I plead and pray to God you review and evaluate my case for termination. As I show good cause for removal in the name of justice, fairness, and mercy. I humbly ask that you withdraw your detainer/warrant[.]

A formal motion was filed with the Board in April, 2010,1 and on June 30, 2010, the Board issued a Notice of Final Agency Action affirming the two prior decisions of its adult panels. The Board considered Monroe's multi-faceted arguments and concluded, in part:

The full Board noted that the aforementioned violations of conditions of your parole and your prior absconding while on parole status to the State of North Carolina, where you committed two [m]urders while on parole supervision, all indicate unwillingness on your part to abide by the conditions of parole supervision. Such an abject failure on your part leaves the Board with a justifiable lack of confidence in your assertion that you would report if the detainer were lifted.

. . . .

Pursuant to N.J.S.A. 30:4-123.60(c), the conviction of a crime while on parole carries a presumption that your parole will be revoked unless you demonstrate at a Final Revocation Hearing by clear and convincing evidence that good cause exists why you should not be returned to confinement. Regardless of the time owed, it is noted that the presumption is that parole will be revoked in your case as a result of your commission of a crime while on parole. Based on the information in the record, it is noted that the violations in your case are serious and that it is imperative that the Parole Warrant be maintained in your case and that the Parole Warrant remain in place until a Final Revocation Hearing has been conducted in your case.

This appeal ensued.

II.

We apply the same standard to parole decisions as to other agency determinations. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998) (Trantino IV). Such decisions "should not be reversed by a court unless found to be arbitrary . . . or an abuse of discretion[.]" Ibid. (citations omitted). Our scope of review is both deferential and constrained. We must affirm the Board's decision unless it was unreasonable, unsupported by credible evidence in the record, or contrary to law. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 126 (2001) (Trantino VI). In conducting this circumscribed review, we must accord the Board's decision a presumption of validity; the burden is on Monroe as the challenging party to show that the Board's actions were unreasonable. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994). In determining whether the Board's decision was arbitrary and capricious, the refusal to afford relief must be measured against a three-part standard. First, we must determine "whether the agency's action violat[ed] express or implied legislative policies." Trantino IV, supra, 154 N.J. at 24. Second, we must assess "whether the record contains substantial evidence to support" the agency's decision. Ibid. Finally, we must evaluate "whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors." Ibid.

The Board carefully reviewed all of the pertinent facts that were available to it. It concluded, with substantial justification, that N.J.S.A. 30:4-123.60(c) imposed a significant burden upon Monroe. The statute provides, in part, as follows:

c. Any parolee who is convicted of a crime or adjudicated delinquent for an act which, if committed by an adult, would constitute a crime, committed while on parole shall have his parole revoked and shall be returned to custody unless the parolee demonstrates, by clear and convincing evidence at a hearing pursuant to section 19 of P.L. 1979, c. 441 (C. 30:4-123.63), that good cause exists why he should not be returned to confinement.

Thus, because the North Carolina murders occurred during New Jersey's parole supervision, there is a legislative presumption that Monroe "shall have his parole revoked and shall be returned to custody." Id. The presumption may be overcome by clear and convincing proof of why the parolee should not be returned to custody. That showing, by legislative pronouncement, can occur only at a revocation hearing pursuant to N.J.S.A. 30:4-123.63, which perforce, can take place only after Monroe's release from his penal obligations in North Carolina. The parole warrant serves the pragmatic purpose of ensuring Monroe's attendance at such a hearing in the future.

Monroe's arguments that either (1) the revocation hearing be conducted long distance (with him in North Carolina) or (2) his sentence be modified in some fashion to eliminate the remaining five months enjoy no provenance in the law. The Board's decision was amply supported by substantial credible evidence on the record. We perceive no basis for judicial intervention. The Board exercised its legislative mandate properly. The decision was reasonable, and neither arbitrary nor capricious, as Monroe alleges.

To the extent that we have not explicitly considered Monroe's other arguments in this opinion, it is because they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D); (E).

Affirmed.

1 It appears that this motion was precipitated by our order, dated March 19, 2010, which denied Monroe's motion for reconsideration of an earlier order that dismissed his appeal, Monroe v. New Jersey State Parole Board, No. A-6257-08, M-3852-09. In that March 19 order we wrote:

Appellant complains about an action taken [fourteen] years ago. The detainer-warrant was filed in 1996. Nothing has happened thereafter. Appellant may file an administrative proceeding seeking removal of the warrant or detainer, and appeal from the disposition in that matter.