JONATHAN THOMAS 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NOT FOR PUBLICATION WITHOUT THE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-2431-14T2

A-2669-14T2

JONATHAN THOMAS,

Appellant,

v.

NEW JERSEY STATE

PAROLE BOARD,

Respondent.

________________________________________________________________

January 11, 2017

Submitted July 12, 2016 Decided

Before Judges Carroll and Rothstadt.

On appeal from the New Jersey State Parole Board.

Jonathan Thomas, appellant pro se.

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

The opinion of the court was delivered by

ROTHSTADT, J.A.D.

In these two appeals that we calendared back to back and consolidated for the purpose of issuing one opinion, parolee Jonathan Thomas1 appeals from two final agency decisions issued by the New Jersey State Parole Board (Board) revoking and later denying him parole, and establishing future eligibility terms. (FET).2 In A-2431-14, he challenges the Board's November 26, 2014 determination to revoke his parole and establish a fifteen-month FET. In A-2669-14, he challenges the Board's December 17, 2014 decision denying parole and establishing a FET of twenty-three months. In both appeals he contends that in reaching its decisions, the Board failed to follow applicable statutes, regulations, and case law and otherwise violated his rights. We disagree and affirm.

Thomas pled guilty in 2000 to one count of first-degree robbery, N.J.S.A. 2C:15-1, and one count of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). The court sentenced him in 2001 to ten years imprisonment on the robbery conviction, subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a period of five years parole supervision after his release. On the aggravated assault conviction, the court sentenced Thomas to a consecutive term of five years, also subject to NERA, and to a three-year period of parole supervision that was to be "consecutive to" the period imposed for robbery.

Thomas was released on parole on June 26, 2012 to begin his eight-year period of parole supervision that would expire in 2020. Thomas's release was terminated when he violated the conditions of his parole by being arrested in April 2013 on weapons charges. At that time, he was placed back in custody and after several adjournments, appeared before a hearing officer to determine whether his parole would be revoked. At the hearing, Thomas did not dispute that police found him asleep and intoxicated behind the wheel of a vehicle in which a handgun was in plain view to the arresting officers who testified at the hearing. Thomas only disputed that he knew the gun was there, despite having used the vehicle, which belonged to someone else, for months. The hearing officer, relying upon the fact that the gun was visible to police, found that Thomas knew the weapon was in the car. As a result, the hearing officer recommended to the Board that Thomas's parole should be revoked as he seriously violated the condition of his parole that prohibited him from being in possession of a weapon.

A Board panel reviewed the recommendation and on July 9, 2014, adopted the hearing officer's recommendation, revoked Thomas's parole, and established a fifteen-month FET. Thomas filed an administrative appeal of that determination to the Board, which in a November 26, 2014 written decision, adopted its panel's findings and conclusions.

As a result of Thomas's FET, he became eligible again in July 2014 based upon his April 2013 re-incarceration. In September, a hearing officer referred the matter to a Board panel that denied parole and established a twenty-three-month FET. The panel found several mitigating factors but ultimately cited to Thomas's past failures while on probation and parole and his lack of insight into his criminal conduct as reasons for continued incarceration. Thomas appealed that determination to the Board, which affirmed the panel's conclusions on December 17, 2014 in another written decision.

In his appeal from the Board's November 26, 2014 decision, Thomas argues that it improperly relied upon his arrest for weapons charges before he was convicted of any crime. He also contends the Board did not follow proper procedures, he was denied due process, and he was discriminated against. He raises similar arguments in his appeal from the December 17, 2014 determination and further contends that there was insufficient evidence to support the Board's findings, including that there was a reasonable expectation that he would violate the conditions of parole if released.

Our review of the Board's decisions is limited. The Board's "decisions are highly individualized discretionary appraisals." Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (Trantino V) (citation and internal quotation marks omitted). Although there is an "inherent difficulty in gauging whether a parole determination constitutes an abuse of discretion," the judicial review of Board determinations "does not engender a more exacting standard of judicial review than that applicable to other administrative agency decisions." Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998) (Trantino IV) (citation omitted), modified in part and aff'd in part, 166 N.J. 113 (2001). "Like other administrative agencies that employ specialized knowledge to administer a regulatory scheme, the Parole Board is the 'agency charged with the responsibility of deciding whether an inmate satisfies the criteria for parole release under the Parole Act of 1979.'" Acoli v. N.J. State Parole Bd., 224 N.J. 213, 222 (quoting In re Application of Hawley, 98 N.J. 108, 112 (1984)), cert. denied, ___ U.S. ___, 137 S. Ct. 85, 196 L. Ed. 2d 37 (2016). "Drawing on the diverse backgrounds of its members, the Parole Board makes 'highly predictive and individualized discretionary appraisals.'" Ibid. (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). "Board decisions should not[, therefore,] be reversed . . . unless found to be arbitrary or an abuse of discretion . . . ." Trantino IV, supra, 154 N.J. at 25 (citations omitted); accord Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971); State v. Lavelle, 54 N.J. 315, 322 (1969); Pazden v. N.J. State Parole Bd., 374 N.J. Super. 356, 366 (App. Div. 2005). While we do owe deference to an administrative agency, we do not rubber stamp its decisions. See In re Taylor, 158 N.J. 644, 657 (1999).

Having considered Thomas's arguments in light of the record and applicable law, we conclude they are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and that the Board's decisions were supported "by sufficient credible evidence on the record as a whole." R. 2:11-3(e)(1)(D). We affirm substantially for the reasons stated by the Board in each of its comprehensive written decisions. We add only the following comments.

We recently addressed the standards applicable to the Board's decision to revoke a parolee for committing a violation of parole where there had not yet been a conviction for committing a new crime. We stated

The Legislature did not grant the Board unbridled discretion to revoke the release status of a person subject to a term of NERA parole supervision. Absent conviction of a crime, the Board has that authority only if the parolee "has seriously or persistently violated the conditions of his parole." N.J.S.A. 30:4-123.60. A decision of a Panel or Board revoking parole without an articulation of the basis for revocation under the statutory standard has an appearance of unfairness and caprice that not only invites but requires careful scrutiny by a reviewing court. For the same reason, the Panel and Board must explain its reasons for selecting a release date or a future eligibility date as well.

[Hobson v. N.J. State Parole Bd., 435 N.J. Super. 377, 391 (App. Div. 2014).]

Applying these requirements to the Board's actions, we discern no abuse in the Board's discretion in determining that Thomas seriously violated the conditions of his parole based upon the undisputed evidence that he possessed a handgun located in plain view in the vehicle he had been driving for months.

Similarly, we conclude the Board did not abuse its discretion in denying parole or setting either of Thomas's FETs. The standard applicable to these parole determinations is contained in N.J.S.A. 30:4-123.53(a), which provides that the inmate shall be released on parole unless, "by a preponderance of the evidence . . . there is a reasonable expectation that the inmate will violate conditions of parole . . . if released on parole at that time." In applying this standard to the record here, we defer to the Board's factual findings and expertise and conclude its decision did not constitute an abuse of discretion. The Board considered all relevant material facts as enumerated in N.J.A.C. 10A:71-3.11. The record discloses no basis for concluding that the Board's final decision was "arbitrary, capricious or unreasonable." Trantino V, supra, 166 N.J. at 191-92.

Affirmed.

1 Thomas was an inmate at the Southern State Correctional prison in Delmont. According to the New Jersey State Department of Corrections' records, Thomas was paroled from that facility on June 17, 2016. This event does not, however, render Thomas's appeal moot as it addresses the revocation of his parole and he is not scheduled to complete his period of parole supervision until June 2020. Compare Bd. of Trs. of Youth Corr. Ctr. v. Davis, 147 N.J. Super. 540, 543-44 (App. Div. 1977) (affirming the Board's decision revoking defendant's parole and concluding "that defendant's right to appeal from the parole revocation is unaffected by his re-parole pending this appeal . . . ."), with Granata v. N.J. State Parole Bd., 237 N.J. Super. 630, 633 (App. Div. 1990) (rejecting defendant's appeal of the Board's refusal to release him on his first eligibility date and stating, "Unlike revocation of parole or the rescission of a parole date because a determination that the defendant has been guilty of a violation of the conditions of his parole, the Board's decision not to parole the defendant until a later date did not add to any stigma which he may have incurred by his prior conduct.").

2 We also decide today a separate appeal Thomas filed from the denial of his petition for post-conviction relief. See State v. Thomas, A-5194-14. In our separate opinion, we affirm the Law Division's denial of Thomas's petition.