JOHN NELSON v. NEW JERSEY PAROLE BOARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1136-10T1

JOHN NELSON,

Appellant,

v.

NEW JERSEY PAROLE BOARD,

Respondent.

_________________________________________________

July 13, 2012

 

Submitted March 6, 2012 - Decided

 

Before Judges Payne and Reisner.

 

On appeal from the New Jersey State Parole

Board.

 

William H. Buckman, attorney for appellant.

 

Jeffrey S. Chiesa, Attorney General,

attorney for respondent (Melissa H. Raksa,

Assistant Attorney General, of counsel;

Christopher C. Josephson, Deputy Attorney

General, on the brief).

PER CURIAM

Parolee, John Nelson, appeals from the October 20, 2010 final decision of the New Jersey State Parole Board denying his request for early discharge from parole supervision. On appeal, he argues:

THE DECISION TO DENY NELSON DISCHARGE WAS ARBITRARY AND CAPRICIOUS

 

A. The Board has no Guiding Criteria For Discharge Matters.

 

B. The Board's Consideration Related Little to Discharge.

 

1. Inaccurate Information

 

2. Gut Reactions About Prescribed Medication

 

a. The Invidious Nature of the Board's Reliance on Appellant's Handicaps

 

3. Arbitrary Reliance on Remorse

 

4. The Burden on Appellant to Justify Discharge

 

5. Appellant's "Debt to Society"

 

6. A Decision Unsupported by the Record

 

I.

 

The record reflects that, on November 21, 1973, Nelson was sentenced to life in custody following his conviction by a jury on charges of murder and to a consecutive sentence of five to seven years on his conviction on charges of assault with the intent to kill. It appears that Nelson was the get-away driver in connection with an armed robbery, by another, of an armored vehicle, during which one person was killed and another was wounded.

Nelson was released on parole on July 6, 1992. However, on November 8, 1996, he was again taken into custody on charges of violation of the conditions of parole, upon evidence that he had failed to obtain the approval of his parole officer for a change in his employment location and had failed to refrain from the use of controlled dangerous substances. At Nelson's parole revocation hearing, counsel stated that Nelson had completed both in-patient and out-patient drug treatment. As a result, he was released from custody pending a decision by the Parole Board. However, on December 19, 1996, he was again taken into custody for violating parole and was charged with the use of a controlled dangerous substance. On January 21, 1997, his parole was revoked for a term of twelve months, but his case was referred to the Mutual Agreement Program (MAP) for a substance abuse evaluation and possible placement in the MAP program. On June 4, 1997, the Parole Board continued Nelson's parole, effective June 26, 1997, on the condition that he complete a 180-day in-patient drug treatment program at Straight & Narrow. Nelson successfully completed treatment and was discharged from Straight & Narrow on December 23, 1997. Nelson claims to have been drug-free thereafter, and there is no subsequent evidence of abuse of his drug of choice, heroin.

On July 27, 1998, Nelson was again taken into custody on a parole violation after he allegedly failed to provide an adequate urine sample for drug testing. On November 18, 1998, a Board Panel determined to revoke Nelson's parole for a period of nine months. Nelson sought reconsideration of the Panel's decision and sentence, but, in a letter from the Parole Board dated June 14, 1999, relief was denied. The letter stated: "Please be advised it has been determined Mr. Nelson was recently granted a parole date to District Office #11 for June 16, 1999. Accordingly an appeal of the previous revocation decision is moot and will not be processed."

Nelson's parole officer, Steven Gosses, stated in a February 24, 2010 Parole Summary Recommendation for Discharge Report that, since Nelson's release from custody in 1999,

he has appeared to abide by the conditions of his parole. All drug screens taken since his release have all been negative for illegal or unprescribed CDS and alcohol. The subject has remained arrest free and has not received a criminal complaint or summons.

 

Gosses noted that Nelson's only contact with law enforcement resulted in a motor vehicle summons for operating a motorcycle without a helmet on April 2, 2009. In fact, the summons was for wearing an "unauthorized" helmet. Nelson pled guilty and paid fifty-four dollars in fines and court costs.

Nelson was placed on "annual status" on December 22, 2006, and, as of Gosses' February 2010 report, he was stated to be in "Phase IV (Advanced) status." Gosses concluded his report by stating:

Subject was considered for discharge from parole supervision as the case meets the criteria in Administrative Manual for Recommendation for Discharge Prior to Maximum. On 6/19/09, Lt. John Craig determined that good cause did not exist to require continued supervision and that the subject qualified for discharge from parole supervision. On 9/25/09, Captain Sean Assay determined that the subject would benefit from continued supervision and that the subject should not be discharged from supervision in the interest of public safety. Per the Director, Division of Parole, the case will be presented to the Full Board for discharge consideration.

On January 25, 2010, Nelson wrote to the Director of Parole for the State Parole Board, stating that he had been "requesting to be released from Parole for the last several years[,]" and that his request had been approved by Parole Officer Gosses and his supervisor, but had been denied by Captain Assay. The letter continued:

I asked Officer Gosses the reason for the denial but he and his supervisor had not been so advised. I asked him how I could find the reason for the denial . . . so I could address any issue. I also asked him what steps I could take to appeal Captain Assay's decision. He spoke with his supervisor and he informed me that I should write to you.

 

I would greatly appreciate any assistance you could provide.

 

The record does not contain the criteria set forth in the Administrative Manual for Recommendation for Discharge Prior to Maximum to which Officer Gosses made reference, the recommendation for discharge of Lt. John Craig, or the contrary recommendation of Captain Assay. Further, there is nothing in the record to suggest that any of these documents or the information contained in them were ever furnished to Nelson.

A hearing on Nelson's application for discharge from parole was conducted by the full Parole Board on April 28, 2010, when Nelson was sixty years of age and had been on parole without significant incident since 1999. At the hearing, it was established that Nelson, a Vietnam War veteran, had contracted hepatitis-C while in the service, and that he presently had liver cancer that his physicians considered to be a service-related condition. Additionally, he had a service-related back injury and post-traumatic stress disorder (PTSD), which had been diagnosed while Nelson was being treated at Straight & Narrow. Nelson was found to be 140-percent disabled, with twenty percent attributed to intervertebral disc syndrome, twenty percent attributed to residuals of hepatitis and one hundred percent attributed to PTSD. Nelson stated that he was being treated for his liver complaints at Mt. Sinai Hospital in New York City because of its expertise in that area.

Although Nelson suffered from chronic and acute pain as the result of his back injury, in light of his liver condition, his doctors recommended against back surgery. As a consequence, since 2003, Nelson had been treated for pain management by a spine surgeon with maintenance and quick-release doses of Oxycodone1 to control chronic and acute pain, respectively. Nelson stated that he saw his pain management doctor on a monthly basis. Additionally, Nelson was being treated at Lyons Veterans Administration Hospital for his PTSD and was attending, at that institution, weekly group meetings of patients with PTSD and histories of drug or alcohol abuse, as well as implementing on a daily basis the steps he had learned in his drug treatment's twelve-step program. Nelson testified that he had also sustained a non-service related severely broken ankle that was repaired with plates and screws, and that his ankle condition exacerbated his back problems. As a consequence, he walked with the use of a cane. Nelson, who was sixty years of age at the time of the hearing, stated that he had been totally disabled since 2003. He was no longer able to work in construction, as he had previously.

Nelson resided with his second wife. He had been married previously and had a daughter, for whom he paid child support until her emancipation. A court order precluded his contact with the daughter.

At the hearing, members of the Parole Board focused on the fact that Nelson had been treated for a heroin addiction, and that he was presently taking significant doses of Oxycontin and Oxycodone, drugs that were, like heroin, opiates. During testimony on that subject, the following exchange occurred:2

MS. HUNT: So, while you're taking Oxycodone for your pain, you're still getting your opiates?

 

MR. NELSON: Well, yes. I mean, I'm not abusing it. I see my doctor every month. I'm not taking it to get high. When I got on this pain management program, I didn't specifically ask for a certain drug. That's just what they gave me.

 

MS. HUNT: Well, when you went to pain management, did you mention to them that you had a heroin addiction?

 

MR. NELSON: Yes, Ma'am.

 

MS. HUNT: And they didn't see a problem with prescribing more opiates under those conditions?

 

MR. NELSON: They asked me if I felt it would be a problem, and I didn't think it would because I deal with my past addiction daily and I'm aware of, you know, triggers, and other stuff that may lead to that. But, I'm checked every month to make sure that I'm not abusing my medication.

 

MS. HUNT: Who checks?

 

MR. NELSON: My doctor.

 

MS HUNT: And how does he check?

 

MR NELSON: Well you know, he (indiscernible) and to make sure that, you know, I'm not trying to get refills earlier, and he does a medical examination and makes sure that, you know, I'm taking the amount that I'm supposed to be taking.

 

Nelson admitted that, while taking Oxycontin, he operated a car and a motorcycle. However, he denied the accusation that he was, improperly, driving under the influence of a narcotic, indicating his knowledge of the potential side effects of the medication and stating "I take medication and drive, yes. . . . It's not like I'm not in control of my motor skills or anything like that. It doesn't impair me in any way." Nelson also testified to the circumstances leading to his citation for failure to wear an approved helmet while riding a motorcycle, stating that he was stopped as he rode the motorcycle to a "place to see if [he] could get it sold." Nelson testified that he had never had his driving privileges suspended.

Additionally, at the hearing, Nelson was questioned about the circumstances of his crime, and he testified that, although he was not the person pulling the trigger, he nonetheless acknowledged responsibility for the crime and for the grief caused to the families of the victims. He stated: "Even though I didn't kill anyone, I did drive the car and maybe my not participating in this, maybe the crime never would have happened." When asked if he had attempted to contact the families to express his remorse, Nelson testified that he had been advised by his supervising parole officers not to do so, and he had complied.

When asked why he sought a discharge from parole, Nelson testified that, because of his various medical conditions, he would like the ability to move out of state. Additionally, he wished to travel freely, without the need to obtain prior permission from his parole officer, but he admitted that permission had always been promptly granted. As a final matter, Nelson stated that he wished to be spared the embarrassment of visits from his parole officer, who came to his home, rather than requiring defendant to report elsewhere.

At the conclusion of the hearing, the Parole Board conferred off the record and, upon resumption of proceedings, the Chair of the Board announced:

[A]s far as your request for a discharge, we have decided to deny that request. We feel the board has concerns about you being able to continue to be monitored with your post-traumatic stress. We feel that's essential to your rehabilitation, and also with the continued monitoring of your drug drug not your abuse, but the prescription drugs that you take.

 

Following this pronouncement, Nelson expressed some confusion, asking how parole was going to monitor his PTSD, which Nelson had always undertaken to treat himself through the Veterans Administration. He was told: "Your parole officer will do that through the continued supervision that he's going to provide." Nelson then requested a written decision, but that request was effectively denied.

Nelson appealed the Parole Board's determination, and in a final decision dated October 20, 2010, his appeal was rejected. In a letter of that date, the Parole Board misstated the nature of Nelson's 1998 parole violation, stating that it was for "failing to obey all laws and ordinances (shoplifting on January 4, 1996), failing to participate in random urine monitoring and failure to refrain from the use of CDS," whereas his violation had related only to urine monitoring. Additionally, the letter misstated the basis for the 2009 motor vehicle summons, stating that it was for "operating a motorcycle without a helmet."

As reasons for the denial of Nelson's application for discharge, the letter stated:

The Board's decision was based on the fact that you do not appear to be addressing your sobriety issues. The record is clear that you have struggled with addiction issues for some time. During the interview with the Board, you stated that you are currently seeing doctors both through the VA hospital and for pain management. Your are not only on an acute dose of oxycodone and oxycontin, but you are also routinely taking an extended-release prescription of those medications. Taken together, this is a large quantity of a highly addictive medication, which you have been self-dosing for years. When the Board questioned you at length about your medications, specifically, whether you have merely transferred your addiction from an illegal substance to a legal prescription, you wholly failed to see the potential for abuse of prescription medication.

 

In addition, you were recently given a citation for driving a motorcycle without a helmet. Although on its face this is a relatively minor traffic violation, you nevertheless acted in violation of the law. When coupled with the fact that you are admittedly on large doses of opiates and should not be operating a motor vehicle, this shows that you continue to have lapses in judgment.

 

Lastly, the full board found no compelling reason to discharge you from parole supervision. You are only required to report to your parole officer once per year, and when you have requested permission to travel out of state, permission has been granted. Therefore, the full Board found that continued supervision was not unduly burdensome on you.

 

The Board therefore concluded that continued parole supervision provided Nelson with the structure necessary for him to lead a law-abiding life, and that discharge was not appropriate. This appeal followed.

II.

Discharge from parole prior to the expiration of a defendant's full maximum term is governed by N.J.S.A. 30:4-123.66, which provides:

Except as otherwise provided in [N.J.S.A. 2C:43-6.4,] the appropriate board panel may give any parolee a complete discharge from parole prior to the expiration of the full maximum term for which he was sentenced . . . provided that such parolee has made a satisfactory adjustment while on parole, provided that continued supervision is not required, and provided the parolee has made full payment of any fine or restitution.

 

Additionally, N.J.A.C. 10A:71-6.9 provides:

The appropriate Board panel may grant any parolee a complete discharge from parole prior to the expiration of the maximum term for which he or she was sentenced, provided that:

 

1. Such parolee has made a satisfactory adjustment while on parole; and

2. Continued supervision is not required;

 

3. The parolee has made full payment of any assessment, fine, penalty, lab fee or restitution or the parolee has in good faith established a satisfactory payment schedule; or

 

4. In the opinion of the Board panel continued supervision is not warranted or appropriate based upon a review of the facts and circumstances considered pursuant to N.J.A.C. 10A:71-7.10, 7.11, 7.12, 7.16 and 7.17, 7.17A or 7.17B.3

 

In its appellate brief, the Parole Board concedes that, in the related context of parole eligibility decisions, inmates possess a liberty interest that entitles them to due process protection of their right to a fair decision. In support of that proposition, the Board cites, generally, to Greenholtz v. Inmatesof the Nebraska Penal& Correctional Complex, 442 U.S. 1, 12-16, 99 S. Ct. 2100, 2106-08, 60 L. Ed. 2d 668, 678-81 (1979); Watsonv. DeSabato, 933 F. Supp. 390, 393 (D.N.J. 1996); and New Jersey StateParole Board v. Byrne, 93 N.J. 192, 210-11 (1983).

In Byrne, the Court held:

[T]he joint interests of society and the prisoner in basic fairness require some measure of protection from gross miscarriages of justice and totally arbitrary action. . . .

 

Only a few, basic procedures are required to deal with the risks of erroneous or arbitrary determinations in this context.

 

[Id. at 211.]

See also Watson, supra, 833 F. Supp. at 393 (adopting Byrne formulation). The process recognized as required in Byrne consisted of notice of the pendency of a disposition on the issue of parole eligibility, a statement of the reasons for any unfavorable decision, and an opportunity for a response. Byrne, supra, 93 N.J. at 211.

We recognize that the right to be relieved of a criminal sentence and any potential for reincarceration constitutes relief far more extraordinary than the right to be considered for parole. Nonetheless, we note the Parole Board's concession that: "Of course, any liberty interest in early discharge from parole entitles an inmate to due process protection of fair consideration for such relief" which in accordance with Byrne would include notice of the basis for any unfavorable recommendation on the discharge issue, prior to a hearing before the Parole Board.

In this case, Nelson claims that fair consideration did not occur, in part, because he was deprived of any notice as to the basis of the determination by Captain Assay that discharge from parole should be denied. As a consequence, Nelson claims to have been deprived of his ability to effectively address Captain Assay's position whatever its basis may have been. We agree, concluding that Nelson, like inmate Byrne, was entitled to "some measure of protection from gross miscarriages of justice and totally arbitrary action[,]" which he failed to receive in this case.

We are particularly troubled by a proceeding in which Nelson's use of prescription medications was challenged in the absence of any notice to him that such use would be at issue. With notice, Nelson potentially could have offered testimony or other evidence from his treating physician as to the dosages prescribed, their necessity, Nelson's compliance with the doctor's orders, any impairment to Nelson's ability to drive or operate a motorcycle, the risk of addiction, and the likelihood that Nelson had substituted an illegal opiate drug for one that was legally obtained all issues addressed by the lay Parole Board without the benefit of such medical evidence.

Moreover, we note that, as in any administrative appeal, the Board's action is subject to judicial review for arbitrariness. N.J.State Parole Bd. v.Cestari, 224 N.J. Super. 534, 547 (App. Div. 1988), certif. denied, 111 N.J. 649 (1988).

[A] reviewing court must determine whether [the Board's] factual finding could reasonably have been reached on sufficient credible evidence in the whole record.

MayflowerSecurities v. Bureau ofSecurities, 64 N.J. 85, 92-93 (1973). Under this standard, the agency's decision will be set aside "if there exists in the reviewing mind a definite conviction that the determination below went so far wide of the mark that a mistake must have been made." 613 Corp. v.State of N.J., Div.of State Lottery, 210 N.J.Super. 485, 495 (App. Div. 1986). "This sense of 'wrongness' arises in several ways, among which are the lack of inherently credible supporting evidence, the obvious overlooking or underevaluation of crucial evidence or a clearly unjust result." Ibid.

 

[Cestari, supra, 224 N.J. Super. at 547.]

 

Our review of the hearing record in this case satisfies us that, in the absence of competent medical evidence with respect to Nelson's use of prescription opioids, the Parole Board lacked an evidentiary basis for its conclusion that parole supervision should be continued because Nelson was misusing the drugs prescribed for his pain, and that he had simply substituted an illegal habit for a legal one. We further find no basis for its conclusion that Nelson's operation of a motorcycle while taking his pain medications provided evidence that he continued to have lapses in judgment. If in fact, he was functionally impaired by the medications, that conclusion could have had some legitimacy. However, the available evidence did not support the conclusion that such impairment was customary, or that it had occurred specifically in Nelson's case. We thus find the Parole Board's final decision in this matter to have lacked evidential foundation and thus to have been arbitrary and capricious. As in Cestari, the seemingly "gut" reaction of members of the Parole Board was not an appropriate substitute for a measured evaluation of the evidence offered by Nelson in support of his application. Cestari, supra, 224 N.J. Super. at 551.

Nelson additionally challenges the absence of any rules or regulations to guide the Board's actions when discharge from parole is sought, other than the few conditions established by N.J.S.A. 30.4-123.66 and N.J.A.C. 10A:71-6.9. He also accurately notes the inapplicability of the regulations regarding parole revocation set forth in N.J.A.C. 10A:71-6.9(a)4 as guidance for a parole discharge decision. The Parole Board, on the other hand, contends that, once the enumerated statutory conditions have been met, the Board has been properly granted by the Legislature the unfettered discretion to determine whether early discharge from parole is warranted. The Board claims: "The unrestricted discretion given parole authorities with respect to this determination is necessary given the highly extraordinary consequences of an early discharge from parole." We are satisfied, in this regard, that application of the customary arbitrary and capricious standard provides a sufficient check on agency action, without the necessity for additional implementing regulations. Nonetheless, we suggest that the agency may wish to reexamine N.J.A.C. 10A:71-6.9(a)4, in order to provide more appropriate guidance to the Parole Board in its deliberations than can be derived from regulations of no apparent relevance to the issues at hand.

The matter is remanded for a new hearing, upon proper notice of the issues to be considered. Jurisdiction is not retained.

1 The Parole Board also refers to Oxycontin, which is the brand name of a time-release (slow-acting) formula of Oxycodone produced by the pharmaceutical company Purdue Pharma. Throughout the hearing transcript, the Board uses the terms Oxycontin and Oxycodone somewhat interchangeably.

2

The transcript of the hearing produced on behalf of the Parole Board contains so many segments marked "(inaudible)" that it constitutes a poor record of what occurred. Counsel for Nelson obtained a certified transcription of the proceedings by another court reporting service that is substantially more complete. The Parole Board has raised no objection to references to the alternate transcript. In the absence of any claim that the transcript inaccurately reports what took place, we have relied on it in lieu of that produced on behalf of the Parole Board.

3 The provisions of the Administrative Code cited all refer to parole revocation. With the exception of N.J.A.C. 10a:71-7.10, a provision requiring that, following a hearing to determine whether probable cause for parole revocation exists, the hearing officer shall forward a notice of decision to the parolee and his/her attorney a provision offering due process protection in the form of notice none of the cited regulations appear to be relevant in a parole discharge context.