JOHN MARTIN ROTH 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NOT FOR PUBLICATION WITHOUT THE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-4473-10T3

JOHN MARTIN ROTH, a/k/a

MARTIN JON ROTH,

Appellant,

v.

NEW JERSEY STATE

PAROLE BOARD,

Respondent.

____________________________

November 14, 2012

Submitted August 13, 2012 - Decided

Before Judges Sapp-Peterson and St. John.

On appeal from the New Jersey State Parole Board.

John Martin Roth, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorneyfor respondent(Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Appellant, John Martin Roth, is an inmate currently incarcerated at the Adult Diagnostic and Treatment Center ("ADTC") in Avenel. He appeals a determination by respondent, New Jersey State Parole Board ("Board"), revoking his parole, resulting in Roth currently serving a parole violation term of eighteen years, five months and eighteen days in connection with a rape conviction, and 964 days for assault convictions. We affirm.

In 1971, defendant was sentenced to an indeterminate term to the ADTC, not to exceed thirty years, and to three concurrent terms of three to nine years for three counts of assault with intent to commit robbery while armed. Roth was paroled in 1978, but returned to custody in 1979 following his arrest on burglary and assault charges. He pled guilty to three counts of assault with intent to commit robbery while armed, and was sentenced to three concurrent terms of three to nine years to run concurrent to any parole violation. He was once again paroled in June 1981, but arrested three months later in Seattle, Washington, where he was charged with rape, two counts of attempted rape, and attempted robbery. He was convicted of all charges and received an aggregate custodial term of ten years to life imprisonment.

New Jersey lodged a parole violation warrant, and upon his release from custody in the State of Washington in 2010, the New Jersey warrant was executed. A parole violation hearing was conducted on January 14, 2001, and the parole violation charge was sustained.

On March 24, 2011, a two-member Board Panel reviewed the hearing officer's decision, along with Roth's record, and adopted the hearing officer's recommendation that his parole be revoked and that he be referred to ADTC for a Dalonges evaluation.1 Following the evaluation, the two-member Board Panel reconsidered its decision and re-affirmed its decision to revoke Roth's parole and directed that future consideration of parole would occur as a result of a referral from the Special Classification Review Board (SCRB), which, pursuant to N.J.S.A. 2C:47-5(a), reviews parole eligibility for those persons classified as "repetitive and compulsive."

Roth filed an administrative appeal of the two-member Board Panel's ruling to the full Board, which affirmed the Board Panel's decision. The present appeal followed.

On appeal, Roth raises the following points for our consideration:

POINT I

WHEN A NEW SENTENCE IS IMPOSED ON A PRISONER WHO IS ON PAROLE, THE BALANCE OF THE PAROLE TERM ON THE FORMER SENTENCE SHALL BE DEEMED TO RUN DURING THE PERIOD OF THE NEW IMPRISONMENT. THE INCARCERATION OF THE APPELLANT FOR THE OCTOBER 26, 2011 PAROLE VIOLATION IS AN EX POST FACTO VIOLATION[.]

POINT II

THE APPELLANT'S SENTENCE WAS NOT THE SUBJECT OF AN ILLEGAL SENTENCE AND THEREFORE THE APPELLANT WAS ENTITLED TO AN EXPECTATION OF FINALITY. FURTHER, THE UNLAWFUL INCARCERATION OF THE APPELLANT AMOUNTED TO DOUBLE JEOPARDY.

POINT III

THE PHILOSOPHY OF [THE] SEX OFFENDER ACT[,] UNDER WHICH THE APPELLANT WAS CONVICTED, IS THAT THOSE WHO COME WITHIN IT REQUIRE TREATMENT, NOT PUNISHMENT.

We have considered the points raised in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(D)(E). We add the following comments.

The scope of our review of parole determinations is limited to determining whether the parole decision by the Board could reasonably have been reached on the credible evidence in the record. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). We presume the validity and reasonableness of the Board's parole determination. Alevras v. Delanoy, 245 N.J. Super. 32, 35 (App. Div. 1990), certif. denied, 126 N.J. 330 (1991). As such, we will set aside an agency decision only "'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.'" N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 535, 547 (quoting 613 Corp. v. N.J. Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)), certif. denied, 111 N.J. 649 (1988). Moreover, the Board's decision regarding each inmate involves "highly 'individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (Trantino VI) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). Consequently, "the Board 'has broad but not unlimited discretionary powers'" in reviewing an inmate's parole record and rendering a release decision. Ibid. (quoting Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971)). See also Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 9-10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979) ("The parole-release decision . . . depends on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals by the Board members based upon their experience with the difficult and sensitive task of evaluating the advisability of parole release.").

When the Board determines to revoke parole, it must reach its decision based upon clear and convincing evidence. N.J.A.C. 10A:71-7.12(c)(1). In that regard, under N.J.S.A. 30:4-123.60(b), "[a]ny parolee who has seriously or persistently violated the conditions of his parole, may have his parole revoked and may be returned to custody . . . ." In addition, if the parolee has been convicted of a subsequent crime committed while the parolee was on parole, the parolee "shall have his parole revoked and shall be returned to custody unless the parolee demonstrates, by clear and convincing evidence[,] . . . that good cause exists why he should not be returned to confinement." N.J.S.A. 30:4-123.60(c).

There is substantial credible evidence in the record to support the Board's determination here. While on parole, Roth was convicted of rape, robbery, attempted rape and attempted robbery while in Seattle, Washington. Thus, there was clear and convincing evidence of Roth's serious and persistent violation of the conditions of his parole, which conditions included his obligation to lead a law-abiding life. Further, given the sex-related nature of his convictions, it was neither arbitrary, capricious, nor unreasonable to require that Roth serve his adjusted maximum State prison sentence and to only consider him for future parole eligibility upon referral by the SCRB. Next, the revocation hearing was conducted with the full panoply of procedural due process to which Roth was entitled. He received timely notice of the claimed violations and was afforded the opportunity to be represented by an attorney, but declined the representation. Roth appeared at the hearing and was afforded the right to call witnesses, but declined to do so. The hearing proceeded before a member of the Board's central staff and there is no evidence that the hearing officer was biased or unqualified. With a presumption in favor of and deference to the agency's expertise, we find there is substantive evidence to support the Board's denial of appellant's parole and establishment of a nine-month FET.2

We likewise reject Roth's contention that he was entitled to credits on his New Jersey sentence while serving the ten-year sentence imposed in connection with the convictions from the State of Washington. He relies upon N.J.S.A. 2C:44-5(c) to urge that the sentences from the two states should run concurrently. "[T]he Legislature did address in [Title 2C], when relevant, the relationship of out-of-state convictions to in-state convictions, and 'when it intended to cover out-of-state convictions, it specifically did so.'" Breeden v. N.J. Dep't of Corr., 132 N.J. 457, 466 (1993) (quoting State v. Hugley, 198 N.J. Super. 152, 157 (App. Div. 1985); see also, e.g., N.J.S.A. 2C:44-4(c) (addressing prior conviction in another jurisdiction for purposes of determining what constitutes a prior conviction). Here, Roth was not taken into custody in the State of Washington on a New Jersey parole warrant. Rather, he was arrested because he was charged with committing offenses in the State of Washington for which he was later convicted. See State v. Black, 153 N.J. 438, 461 (1998) (holding that when a parolee is placed in confinement based upon a parole warrant, the confinement under those circumstances is attributable to the original sentence rather than to any offense while the parolee was on parole). Finally, N.J.S.A. 30:4-123.65 places a limitation on time served to

the duration of time served prior to parole, plus the duration of any time served on parole, less any time after warrant for retaking of a parolee was issued pursuant to [N.J.S.A. 30:4-123.62] but before the parolee is arrested, plus the duration of any time served after revocation of parole, shall not exceed the term specified in the original sentence.

Affirmed.

1 State v. Dalonges, 128 N.J. Super. 140 (App. Div. 1974). In Dalonges, we established a three-part test to determine whether parole of inmates convicted under the former Sex Offender Act, N.J.S.A. 2A:164-3 to -13, can be revoked. Regulations adopted subsequent to our decision incorporate the Dalonges factors. Under N.J.A.C. 10A:71-7.19(c), the evaluation considers "whether the violation(s) of parole conditions reflects emotional or behavioral problems as a sex offender, evidence that that parolee is incapable of making an acceptable social adjustment in the community, and the necessity for continued custodial supervision and further specialized treatment as a sex offender." If the results of the evaluation lead the evaluator to conclude the violation does not reflect sex-offender-related problems and the Board Panel concurs, the revocation is vacated. On the other hand, if the evaluation confirms that the conditions of parole violated reflect behavior problems associated with the parolee's sex offender status and that the parolee is incapable of making the necessary adjustment in the community because of these conditions, for which continued, specialized treatment as a sex offender is required, the Board Panel will affirm the revocation.

2 Future Eligibility Term.