DARRYL JINKS v. NEW JERSEY STATE PAROLE BOARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DARRYL JINKS,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

____________________________________

December 30, 2016

Argued December 6, 2016 Decided

Before Judges Fisher and Vernoia.

On appeal from the New Jersey State Parole Board.

Justin T. Loughry argued the cause for appellant (Loughry and Lindsay, LLC, attorneys; Mr. Loughry, on the brief).

Christopher C. Josephson, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Mr. Josephson, on the brief).

PER CURIAM

Darryl Jinks appeals the New Jersey Parole Board's (Board) February 25, 2015 final agency decision finding he violated his parole and imposing a fifty-six-month future eligibility term (FET). Based upon our review of the record, we are convinced the Board correctly determined appellant violated his parole but erred by failing to determine if good cause existed why he should not be returned to confinement as required by N.J.S.A. 30:4-123.60(c). We therefore affirm the Board's decision finding appellant violated his parole, vacate that portion of its decision imposing the FET, and remand for further proceedings consistent with this opinion.

I.

Appellant was convicted of crimes and sentenced on four occasions during 1976 and 1977. On November 10, 1976, appellant was sentenced to an aggregate sentence of not less than seven years nor more than ten years for robbery, N.J.S.A. 2A:141-1 (repealed 1979), and robbery while armed, ibid. and N.J.S.A. 2A:151-1 (repealed 1979). On February 14, 1977, appellant was sentenced to an aggregate sentence of not less than seven years nor more than eight years for receiving a stolen motor vehicle, N.J.S.A. 2A:139-3 (repealed 1979), and giving false information to a law enforcement officer, N.J.S.A. 2A:148-22.1 (repealed 1979). On March 4, 1977, appellant was sentenced to serve a custodial term of not less than seven years nor more than ten years on a conviction for robbery, N.J.S.A. 2A:141-1 (repealed 1979). On April 22, 1977, appellant was sentenced to not less than seven years nor more than ten years for armed robbery, ibid. and N.J.S.A. 2A:151-1 (repealed 1979), and a consecutive sentence of not more than three years nor more than five years for a second armed robbery. The sentences imposed on each of the four occasions were made concurrent to appellant's other sentences.

On May 27, 1980, appellant was released on parole. The parole conditions required that he obey all laws and ordinances, report to his parole officer, and not leave New Jersey for more than twenty-four hours without the approval of his parole officer.

On July 3, 1980, appellant was arrested on seven separate robbery charges. A probable cause hearing on the charges was scheduled in the Fanwood Municipal Court. While at the municipal court on July 21, 1980, appellant escaped from custody and absconded. On July 31, 1980, the Board issued a declaration of delinquency alleging appellant violated the terms and conditions of his parole.

On September 8, 1980, appellant was arrested in Virginia and charged with murder, robbery, and a weapons offense. The Board issued a fugitive warrant for appellant. Appellant subsequently pled guilty in Virginia to murder and the weapons offense. On January 28, 1981, he was sentenced to life imprisonment on the murder charge and a consecutive one-year sentence on the weapons offense.1

Appellant was paroled on his Virginia sentence on January 6, 2014, but remained in custody there because of the Board's longstanding fugitive warrant. On February 20, 2014, the Board issued a declaration of delinquency alleging appellant violated his parole based on his conviction for murder and the weapons offense in Virginia, failing to report for probation following his July 21, 1980 escape from custody, and leaving New Jersey without permission following his escape. After more than thirty-four years of incarceration in Virginia, appellant was returned to the custody of the New Jersey Department of Corrections on March 31, 2014.

A parole revocation hearing was held and the hearing officer determined appellant violated his parole by committing the murder and weapons offense in Virginia. The hearing officer recommended the revocation of appellant's New Jersey parole and the imposition of a fifty-six-month FET. A two-member Board panel reviewed the matter and adopted the hearing officer's recommendation. Appellant appealed to the Board, which issued a final agency decision finding appellant violated his parole and imposing a fifty-six-month FET. This appeal followed.

Appellant makes the following arguments

POINT I

THE FINDING CONCERNING REVOCATION OF PAROLE AND ABSENCE OF "MITIGATING CIRCUMSTANCES" IGNORES OR FAILS TO ANALYZE THE SUBSTANTIAL EVIDENCE ESTABLISHING "GOOD CAUSE" FOR NON-INCARCERATION, AND RUNS COUNTER TO THE POLICY UNDERPINNINGS OF THE PAROLE ACT AND DECIDED PRECEDENT.

POINT II

THE HEARING OFFICER'S REPORT, THE ADULT PANEL'S DECISION[,] AND THE AGENCY'S ULTIMATE DECISION HARBOR AN EX POST FACTO IMPROPRIETY, AS THEY IMPLY THE APPLICATION OF CURRENT REGULATIONS INSTEAD OF THE REGULATIONS IN FORCE AT THE TIME OF THE PAROLE VIOLATION.

II.

In our review of a Board decision, we are limited to an evaluation of whether the decision was arbitrary, capricious or unreasonable, Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980), and recognize such decisions are accorded a strong presumption of reasonableness. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div.), certif. denied, 135 N.J. 469 (1993). The burden of showing the decision was arbitrary, capricious or unreasonable rests upon the appellant. Id. at 304.

We remain mindful that "[t]o a greater degree than is the case with other administrative agencies, the Parole Board's decision-making function involves individualized discretionary appraisals." Trantino v. N.J. State Parole Bd., 166 N.J. 113, 201 (2001). Administrative decisions of the Board are "grounded in strong public policy concerns and practical realities." Id. at 200. "The decision of a parole board involves 'discretionary assessment[s] of a multiplicity of imponderables . . . .'" Ibid. (alteration in original) (quoting Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979)). Although the Board has broad discretionary powers, they are not unlimited and its determinations "are always judicially reviewable for arbitrariness." Id. at 173 (quoting Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971)).

Appellant does not challenge the Board's determination that he violated his parole. Appellant instead asserts only that the Board abused its discretion by returning him to custody and imposing a fifty-six month FET.

N.J.S.A. 30:4-123.60(c) mandates that a parolee who commits a crime while on parole "shall have his parole revoked and shall be returned to custody." The statute, however, includes an exception to the otherwise mandatory return to custody for parolees whose parole is revoked based on the commission of a crime. Ibid. N.J.S.A. 30:4-123.60(c) provides that a parolee who violates parole by committing a crime shall not be returned to custody where the parolee "demonstrates, by clear and convincing evidence at a hearing . . . , that good cause exists why he [or she] should not be returned to confinement."

Appellant contends the Board abused its discretion in applying N.J.S.A. 30:4-123.60(c) by finding he had not established good cause. Appellant claims he established he engaged in extensive and successful efforts at rehabilitation during his thirty-four years of incarceration in Virginia, he was an exemplary inmate during the entirety of his incarceration, and there is no current need to return him to confinement because he poses no risk of committing new crimes.

During his hearing appellant presented evidence that the crimes for which he was convicted and sentenced in New Jersey were the result of his heroin addiction and that during his incarceration in Virginia he completed eight six-month therapeutic programs addressing his addiction issues. The evidence further showed that during appellant's incarceration he consistently participated in various educational programs, earned two associate degrees, obtained vocational training in electrical, wiring, plumbing, machinery, forklift operations and the culinary arts, was an exemplary employee in the prison's work program, and served as a prison-appointed mentor to other inmates.

Appellant also argued that by virtue of his age, sixty-one, he is less likely to commit criminal offenses than someone younger. He presented evidence he was paroled in Virginia and is subject to lifetime parole supervision in Virginia. He argued the Virginia Parole Board's decision to grant him parole on his murder charge shows that those who supervised him in custody for thirty-four years recognize he was sufficiently rehabilitated and does not pose a risk of committing any crimes. Appellant also presented evidence he has a promise of employment and will reside with his longtime girlfriend, who is a certified health technician and has a bachelor's degree and two master's degrees.

The Board rejected appellant's claim that he established good cause existed why he should not be returned to confinement.2 The Board explained that appellant's demonstration of his rehabilitation during his incarceration in Virginia failed to establish by "clear and convincing evidence that good cause exists why his parole should be not revoked when balanced with the severity of his violations."3 (Emphasis added). The Board reasoned that appellant's violations of parole "are serious and warrant revocation of his mandatory parole supervision at this time."

Appellant did not dispute his Virginia convictions otherwise required the revocation of parole under N.J.S.A. 30:4-123.60(c). Instead, appellant presented evidence solely to support his claim that under all of the circumstances presented "good cause exists why he should not be returned to confinement." Ibid.

We are persuaded the Board erred in its analysis of the evidence under N.J.S.A. 30:4-123.60(c) because it did not apply the appropriate standard. The Board found appellant failed to establish that "good cause exists why his parole should not be revoked," but N.J.S.A. 30:4-123.60(c) required that the Board make the separate and distinct determination whether appellant established "by clear and convincing evidence . . . , that good cause exists why he should not be returned to confinement." Ibid.

Our exercise of deference to the Board's decisions "is premised on our confidence that there has been a careful consideration of the facts in issue and appropriate findings addressing the critical issues in dispute." Hobson v. N.J. State Parole Bd., 435 N.J. Super. 377, 391 (App. Div. 2014) (quoting Bailey v. Bd. of Review, 339 N.J. Super. 29, 33 (App. Div. 2001)). The Board's decisions must "express a reasoned conclusion" with an explanation of the evidence supporting it "and findings of appropriate definiteness to express it." Ibid. (quoting N.J. Bell Tel. Co. v. Commc'ns Workers of Am., 5 N.J. 354, 375 (1950)).

Here, we cannot defer to the Board's decision because the Board failed to address or make findings of fact essential to a critical issue in dispute: whether appellant's evidence clearly and convincingly established that good cause exists why he should not be returned to confinement. N.J.S.A. 30:4-123.60(c). The Board's failure to address this portion of the statutory standard "has an appearance of unfairness and caprice that not only invites but requires careful scrutiny by a reviewing court." Hobson, supra, 435 N.J. Super. at 391. We therefore reverse that portion of the Board's decision imposing a fifty-six-month FET and remand the matter for the Board's determination and findings of fact as to whether appellant established good cause under N.J.S.A. 30:4-123.60(c).

Although the "good cause" standard is not defined in N.J.S.A. 30:4-123.60(c), the Board's determination must be made in a manner consistent with the principles underlying the grant and revocation of parole. In State v. Black, 153 N.J. 438, 450-51 (1998), the Court rejected a claim that revocation of parole violated the constitutional protections against double jeopardy, finding that "because the primary purpose of parole is rehabilitative, the act of revocation of parole should be viewed as an essential element of the parole procedures, the primary purpose of which is to rehabilitate a prisoner in preparation for his or her eventual return to society." The Court in part relied upon the reasoning in United States v. Brown, 59 F.3d 102, 104-05 (9th Cir. 1995), that a "[r]evocation of parole . . . is regarded as reinstatement of the sentence for the underlying crime, not as punishment for the conduct leading to the revocation." Id. at 450.

N.J.S.A. 30:4-123.53 provides that an inmate shall be released on his or her parole eligibility date unless it is established by "a preponderance of the evidence that the inmate has failed to cooperate in his or her own rehabilitation or that there is a reasonable expectation that the inmate will violate conditions of parole . . . if released on parole."4 The statute imposes a "standard for parole fitness" that requires a determination of whether "there is a substantial likelihood of future criminal activity if the prisoner is released" from confinement. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 27 (1998). The standard applies to the Board's FET determinations. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 565 (App. Div. 2002). The Board has enacted a regulation detailing a myriad of factors it will consider in making a parole release decision. See generally N.J.A.C. 10A:71-3.11.

The good cause provision of N.J.S.A. 30:4-123.60(c) requires that the Board determine if a parolee may be released from confinement. We discern no basis to distinguish the principles applicable to the Board's determination of good cause under N.J.S.A. 30:4-123.60(c) from those applicable to other parolee release decisions made by the Board. See N.J.S.A. 30:4-123.53; N.J.S.A. 30:4-123.56.

Accordingly, in deciding whether appellant has established good cause under N.J.S.A. 30:4-123.60(c), the Board shall not act to punish or sanction appellant for the commission of crimes in Virginia. See Black, supra, 153 N.J. at 451 (finding "[p]arole revocation is not . . . primarily designed to punish parole violators."). Consistent with the rehabilitative purposes of parole, the determination of good cause requires that the Board determine whether appellant clearly and convincingly established he has been sufficiently rehabilitated so there is not a substantial likelihood he will engage in future criminal activity if he is released. The Board's determination shall be supported by findings of fact supporting its decision. Hobson, supra, 435 N.J. Super. at 391.

We also consider appellant's argument that if he failed to establish good cause not to be returned to confinement, the Board cannot impose a fifty-six-month FET. Appellant argues a fifty-six-month FET exceeds the term permitted under the regulations in effect at the time he violated parole in 1980. The Board agrees it was obligated to impose the FET in accordance with the regulations in effect at the time of appellant's parole violations, but contends a fifty-six-month FET was required here under the regulations in effect.

N.J.A.C. 10A:71-7.17(f) currently provides that, with exceptions not applicable here, an inmate who violates parole by committing a murder must receive a minimum FET of fifty-six months. N.J.A.C. 10A:71-7.17(t), however, states that the "prior provisions of [N.J.A.C. 10A:71-7.17(f)] apply to inmates who have violated their parole prior to March 5, 1990[,] and shall continue in effect for that purpose." Thus, as recognized by the Board, appellant's FET must be determined based on the regulations in effect in 1980, at the time of his parole violations.5

N.J.A.C. 10A:7-7.16 became effective on May 21, 1980, and required the imposition of a fifty-six-month FET for an inmate who violated parole by committing murder. N.J.A.C. 10A:7-7.16 (current version at N.J.A.C. 10A:71-7.17); 12 N.J.R. 339 (June 5, 1980). The regulation included an exception, however, for young adult inmates and mandated that a young adult inmate who violated parole by committing a murder receive an FET "equal to that which was originally served prior to parole." N.J.A.C. 10A:7-7.16(f)(4); 12 N.J.R. 339.6

Appellant's New Jersey convictions for which he was sentenced and later paroled occurred prior to the enactment of our current New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 to 104-9. At the time appellant was convicted and sentenced on the four occasions in 1976 and 1977, a young adult offender was defined as an inmate who at the time of sentencing was less than twenty-six years of age and who was sentenced to an indeterminate term at the Youth Correctional Institution Complex in accordance with N.J.S.A. 30:4-146 to -148. State v. Groce, 183 N.J. Super. 168, 170 (App. Div. 1982). An indeterminate sentence was, and still is, defined as one which did not "fix or limit the duration sentence." N.J.S.A. 30:4-148; see also State v. Spinks, 66 N.J. 568, 575 (1975) (finding an inmate was not an adult youthful offender under N.J.S.A. 30:4-148 where the court's sentence included a minimum period of incarceration).

We reject appellant's argument he was sentenced in 1976 and 1977 as a young adult offender and the Board was required to impose an FET in accordance with N.J.A.C. 10A:7-7.16(f)(4). Although appellant was less than twenty-six years of age at the time of each of his convictions in 1976 and 1977, he was never given an indeterminate sentence. Each of his sentences included the requirement that he serve a minimum period of imprisonment. Ibid. We are therefore satisfied that N.J.A.C. 10A:7-7.16(f)(4) did not limit the FET the Board could impose here.7

We affirm the portion of the Board's final agency decision finding appellant violated his parole. We vacate the portion of the Board's decision imposing a fifty-six-month FET and remand for further proceedings in accordance with this opinion. We do not retain jurisdiction.

1 The robbery charge was dismissed as part of appellant's negotiated plea agreement.

2 The hearing officer never addressed appellant's claim he established good cause under N.J.S.A. 30:4-123.60(c). The hearing officer considered only whether defendant made a showing entitling him to an FET at "the lower end of the FET schedule." In doing so, however, the hearing officer recognized that appellant "made the best use of his time while in custody" in Virginia and demonstrated other "accomplishments."

3 This finding mirrored the conclusion of the Board panel which determined that appellant's commission of the murder in Virginia constituted a serious violation of the conditions of his parole and, therefore, appellant "failed to show good cause why his parole should not be revoked."

4 The same statutory standard applies to a parole release decision following prior denial of parole. N.J.S.A. 30:4-123.56(c).

5 The Board's February 20, 2014, notice of delinquency alleged appellant's parole violations occurred in 1980.

6 As enacted in 1980, N.J.A.C. 10A:7-7.16 also permitted a three-month increase or decrease in the FET, N.J.A.C. 10A:7-7.16(g), and an FET that "differs from that otherwise required," N.J.A.C. 10A:7-7.16(j), under certain defined circumstances. 12 N.J.R. 339.

7 If the Board on remand determines appellant has not established good cause under N.J.S.A. 30:4-123.56(c), it shall determine if appellant is entitled to a modification of the FET under N.J.A.C. 10A:7-7.16(f), (g) and (j). 12 N.J.R. 339.