JULIUS V. HUGLEY 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NOT FOR PUBLICATION WITHOUT THE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-2171-05T12171-05T1

JULIUS V. HUGLEY,

Appellant,

v.

NEW JERSEY STATE

PAROLE BOARD,

Respondent.

________________________________________________________

 

Submitted June 14, 2006 - Decided June 30, 2006

Before Judges Wefing and Coburn.

On appeal from the New Jersey State

Parole Board.

Julius V. Hugley, appellant pro se.

Zulima V. Farber, Attorney General, attorney

for respondent (Michael J. Haas, Assistant

Attorney General, of counsel; Christopher C.

Josephson, Deputy Attorney General, on the

brief).

PER CURIAM

Julius V. Hugley appeals from a final decision of the State Parole Board revoking his parole and ordering him to "serve the remainder of [his] mandatory parole supervision term in custody."

Hugley's initial brief contains the following point headings:

POINT I

N.J.S.A. 30:4-123.51b(a) AND N.J.S.A. 2C:43-7.2(c) ARE UNCONSTITUTIONAL STATUTES INSOMUCH AS THEY ILLEGALLY CONFER AUTHORITY UPON THE NEW JERSEY STATE PAROLE BOARD TO UNILATERALLY REVOKE A PERIOD OF SUPERVISED RELEASE IN VIOLATION OF THE SEP[A]RATION OF POWER CLAUSE OF THE U.S. CONSTITUTION.

POINT II

THE HEARING OFFICER CONDUCTED AN IMPROPER SUPERVISED RELEASE REVOCATION PROCEEDING IN VIOLATION OF APPELLANT'S PROCEDURAL AND SUBSTANTIVE DUE PROCESS RIGHTS.

POINT III

THERE WAS INSUFFICIENT EVIDENCE TO REVOKE APPELLANT'S TERM OF SUPERVISED RELEASE AND ORDER HIM TO SERVE THE REMAINDER OF HIS TIME IN PRISON.

After carefully considering the record and briefs, we are satisfied that the administrative decision is supported by sufficient credible evidence in the record as a whole and that Hugley's arguments, as noted above, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E). Nevertheless, we add the following comments as to them.

Hugley shot the victim with a handgun and pled guilty pursuant to a plea agreement, which recognized that his sentence was governed by the No Early Release Act, N.J.S.A. 2C:43-7.2 ("NERA"). On October 2, 2001, Hugley was sentenced on the charge of second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), to imprisonment for three years and nine months, to be followed by three years of mandatory parole supervision as required by NERA. He was released to mandatory parole supervision on February 29, 2004.

On June 6, 2004, Hugley was arrested in Carney's Point for driving while on the revoked list. On August 4, 2004, Hugley was arrested in Penns Grove, also for driving while on the revoked list. He pled guilty in the respective municipalities to both charges and received concurrent ten-day jail sentences on October 20, and 24, 2004. Finally, on January 29, 2005, Hugley violated a restraining order issued pursuant to the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35. The order was obtained in 1999 by Adrienne Logan, the mother of Hugley's children. It was still in effect on January 29, 2005, on which day Hugley attempted to run Logan's car off the road, pulled along side of her when she pulled into a parking lot, screamed at her, stole her cell phone and book bag, and bit her on the face. Hugley claimed he did not have notice of the order, but there was overwhelming evidence that it had been served on him. He admitted the motor vehicle offenses.

Hugley's first argument is that NERA and N.J.S.A. 30:4-123.51(b) are unconstitutional because they illegally confer judicial authority on the Parole Board. For defendant's crime, NERA requires imposition of a three-year term of "parole supervision" to commence when the initial sentence of incarceration has been served. N.J.S.A. 2C:43-7.2c. And this subsection further states that

[d]uring the term of parole supervision the defendant shall remain . . . in the legal custody of the Commissioner of the Department of Corrections and shall be supervised by the State Parole Board as if on parole . . . .

N.J.S.A. 30:4-123.51b(a) reiterates those concepts, and specifically authorizes the State Parole Board

to revoke the person's release status and return the person to custody for the remainder of the term or until it is determined, in accordance with regulations adopted by the board, that the person is again eligible for release consideration . . . .

Hugley relies on this definition of parole which he asserts, without full citation, is defined in Black's Law dictionary as follows: "Release from jail, prison or other confinement after having served part of the term for which he was sentenced to prison." Our review of Black's entry for parole revealed the following definition: "The release of a prisoner from imprisonment before the full sentence has been served." Black's Law Dictionary at 1139 (7th ed. 1999). He then argues that since he had served his full sentence, he could not have been on parole, and therefore he should have been treated as if he had been on probation, subject to court supervision. Hugley cites no case supporting his theory, and the short answer is that under our statute he was not under probation; he was on parole as our Legislature defines it.

Hugley also contends that he was denied procedural and substantive due process, but this argument is based on his first point, not on any suggestion that he was not given due notice of the violation and a fair chance to defend himself. N.J.S.A. 30:4-123.51b(b) specifically provides that the "Parole Board shall promulgate rules and regulations necessary to carry out the purposes of this act," and those regulations were in place and were enforced in this case. See N.J.A.C. 10A:71-3.54.

Hugley also argues that the evidence did not support the administrative determination. That argument is based on his claim that the motor vehicle offenses were unimportant, a claim properly rejected by the Parole Board, and his further claim that he did not have notice of the restraining order. Although he denied receipt of the order, the evidence was to the contrary. The Final Restraining Order contains the signature of Probation Officer Tom Ambrose certifying that he "served the within Order by delivering a copy to defendant personally." And Ambrose testified that his certification meant that he so served the Order.

In his reply brief, Hugley adds the following argument: N.J.A.C. 10A:71-3.54(i), which eliminates the possibility of parole when a defendant is re-incarcerated for violating NERA parole supervision after initial release from prison, conflicts with N.J.S.A. 2C:43-7.2(d).

N.J.S.A. 2C:43-7.2(d) provides, in pertinent part, that during parole supervision the defendant "shall be subject to the provisions and conditions of [N.J.S.A.]30:4-123.51b", which, in turn, includes this statement:

The appropriate board panel shall have authority . . . to revoke the person's release status and return the person to custody for the remainder of the term or until it is determined, in accordance with regulations adopted by the board, that the person is again eligible for release consideration pursuant to [N.J.S.A. 30:4-123.53].

[Emphasis added.]

On the other hand, N.J.A.C. 10A:71-3.54(i) provides as follows:

If a term of parole supervision imposed by a court pursuant to N.J.S.A. 2C:43-7.2 is revoked and the offender returned to custody for violation of a condition of supervision, the offender shall be required to serve the remainder of the term in custody and shall not be eligible for parole consideration on the remainder of the term.

This provision does appear to conflict with N.J.S.A. 30:4-123.51b.(a). The statute expressly provides for release,

and the regulation states the opposite. But Hugley did not make this argument to the Parole Board, and so we do not have the benefit of its reasoning. This issue is obviously of importance, not only to Hugley, but to all other defendants in the same circumstances. Therefore, we remand the case to the Parole Board so that it may provide us with a statement of reasons respecting the validity of the regulation. The statement shall be filed within 45 days of the filing date of this opinion. We retain jurisdiction and direct the clerk to re-list this case for briefing and argument early next term. Affirmed in part; remanded in part; and jurisdiction retained.

 

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A-2171-05T1

June 30, 2006