MICHAEL J. MCPEAK 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NOT FOR PUBLICATION WITHOUT THE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-3047-12T3

MICHAEL J. MCPEAK,

a/k/a MIKE,

Appellant,

v.

NEW JERSEY STATE PAROLE

BOARD,

Respondent.

______________________________________

August 4, 2014

Argued July 15, 2014 Decided

Before Judges Yannotti and Maven.

On appeal from the New Jersey State Parole Board.

Andrew Mark Ferencevych argued the cause for appellant (Furlong and Krasny, attorneys; Mr. Ferencevych, of counsel and on the brief).

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

PER CURIAM

Michael McPeak appeals from a January 23, 2013 determination of the New Jersey State Parole Board, which revoked his parole supervision for life (PSL) and established a twelve-month term of incarceration. We affirm.

I.

On October 1, 2007, McPeak pled guilty to sexual assault of a victim who is at least thirteen but less than sixteen years old, and the perpetrator at least four years older than the victim, contrary to N.J.S.A. 2C:14-2(c)(4); and endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a). McPeak met one of his victims on the Internet. The court sentenced McPeak to four years of incarceration for the sexual assault, with a concurrent three-year term for endangering. The judgment of conviction dated February 29, 2008, states, among other things, that defendant was sentenced to PSL, pursuant to N.J.S.A. 2C:43-6.4.

McPeak was released from custody on June 29, 2009. Prior to his release, McPeak agreed to numerous conditions of PSL, which required, among other things, that he (1) obtain his parole officer's permission before leaving the State for any purpose, (2) refrain from the purchase, possession and use of alcohol, (3) refrain from using any computer to create a social networking profile or to access a social networking service or chat room unless expressly authorized to do so, and (4) refrain from accessing the Internet from any computer or device at any time, for any reason.

On March 6, 2012, McPeak left New Jersey and traveled to New Orleans without obtaining his parole officer's approval. On May 1, 2012, Parole Officer Kenneth Ward interviewed McPeak. During this interview, McPeak admitted that he accessed the Internet at work and checked emails using a personal laptop. McPeak claimed that he was allowed to access the Internet for work purposes. However, Ward's subsequent investigation revealed that McPeak had never been given permission to do so.

On May 21, 2012, Ward and Parole Officer Ethington went to McPeak's residence in Mount Laurel. They interviewed McPeak and reviewed his Internet history using his laptop. McPeak again denied using the computer to access social networking sites. However, the laptop review revealed that McPeak had accessed Facebook and Twitter. McPeak claimed that he only did so with his employer's accounts.

Ward drove McPeak to the parole division office in Trenton, where the interview continued. McPeak admitted he used personal accounts to access social networking sites. An investigation of McPeak's personal Facebook account showed that he had traveled to New Orleans. McPeak also signed a document in which he admitted using alcohol while on PSL. He acknowledged having one to two drinks every other week. He said he had last used alcohol on May 9.

The Board issued a notice to McPeak indicating that he had been charged with violating the conditions of PSL and informing him that a probable cause hearing would be scheduled. McPeak waived the probable cause hearing, and a parole violation hearing was held on June 19, 2012. Thereafter, the hearing officer issued a report concluding that there was clear and convincing evidence that McPeak had violated the conditions of PSL.

The hearing officer noted that McPeak had traveled to New Orleans in the spring of 2012. McPeak claimed that because he had purchased the tickets the day before his departure, he was not able to obtain his parole officer's permission to travel out of state. The hearing officer pointed out that McPeak could have obtained permission from his parole officer and then purchased the tickets for a later departure.

In addition, the hearing officer noted that McPeak had admitted using alcohol. McPeak claimed that he did not know he could not drink alcohol while on PSL, but the hearing officer wrote that "the prohibition on alcohol use is contained within the [PSL] certificate that [McPeak] signed." The hearing officer noted that McPeak is a college graduate and was "very well spoken."

The hearing officer also addressed the charge that McPeak had accessed the Internet, although precluded from doing so. McPeak claimed that he had permission to use the Internet for work, but his parole officer stated that such permission had never been given. The hearing officer wrote that there was no evidence that McPeak had used the Internet for an inappropriate purpose, but McPeak had not been "upfront" with the parole officer about his Internet and social-networking use. In particular, McPeak was not truthful about the fact that he had personal Facebook and Twitter accounts.

The hearing officer concluded that the violations were serious and revocation of PSL status was warranted. The hearing officer said McPeak had to recognize he was subject to PSL and, until that obligation is discharged, he must comply with the conditions of parole. If McPeak thought the conditions should be modified to accommodate legitimate employment purposes, procedures were in place to seek an accommodation.

An adult panel of the Board reviewed the hearing officer's report, concurred in the hearing officer's findings, and issued a decision dated July 25, 2012. The panel determined that PSL should be revoked since the violations were serious and parole revocation was warranted. The panel ordered McPeak to serve a twelve-month term of incarceration, after which he would resume serving PSL.

Thereafter, McPeak's attorney asked the panel to reconsider its decision because the panel had issued its decision before counsel had the opportunity to submit a mitigating evidence package. Counsel argued that revocation was not warranted because McPeak did not pose a danger to the public safety and he was not a flight risk.

Counsel said the "technical" violations of the conditions of PSL were not sufficiently serious to warrant parole revocation. Counsel asserted that the panel should reinstate McPeak to parole because he had already been "significantly penalized" for the violations. The panel reconsidered its decision and on August 9, 2012, affirmed its prior determination.

McPeak filed an administrative appeal of the panel's decision. On January 23, 2013, the entire Board upheld the panel's decision. The Board stated that the adult panel had appropriately reviewed the facts of the case. The Board said the panel "has established that the violations are serious and warrant revocation of your [PSL] status at this time." This appeal followed.

II.

McPeak raises the following arguments for our consideration:

POINT ONE

THE PAROLE BOARD'S DECISION WAS AN ABUSE OF DISCRETION BECAUSE THE STATE FAILED TO DEMONSTRATE CLEAR AND CONVINCING EVIDENCE APPELLANT SERIOUSLY AND PERSISTENTLY VIOLATED HIS PAROLE CONDITIONS OR THAT HE WAS LIKELY TO POSE A DANGER TO SOCIETY.

A. The Parole Board's Decision Was an Abuse of Discretion Because it did not Follow the Law and Failed to Suppress Improperly Obtained Evidence.

B. The Parole Board Abused its Discretion Because the Record did not Contain Clear and Convincing Evidence that Appellant Seriously and Persistently Violated the Conditions in the Absence of the Improperly Admitted Evidence.

POINT TWO

THE PAROLE BOARD ABUSED ITS DISCRETION BECAUSE ITS PUNISHMENT WAS NOT PROPORTIONAL TO THE RISK THAT APPELLANT POSED TO THE COMMUNITY.

POINT THREE

THE PAROLE BOARD ABUSED ITS DISCRETION WHEN IT REVOKED APPELLANT'S PAROLE PRIOR TO RECEIVING THE MITIGATING EVIDENCE PACKAGE.

We begin our consideration of McPeak's arguments by noting that courts have a limited role in the review of decisions of administrative agencies. In re Stallworth, 208 N.J. 182, 194 (2011) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). We may not reverse an agency's decision unless it is arbitrary, capricious or unreasonable, or not supported by sufficient credible evidence in the record as a whole. Ibid. (citing Henry, supra, 81 N.J. at 579-80).

In reviewing an agency's decision, we consider (1) whether the agency followed the law; (2) whether the record contains sufficient evidence to support the findings upon which the decision is based; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made upon consideration of the relevant factors. Ibid. (citing In re Carter, 191 N.J. 474, 482-83 (2007)).

III.

McPeak contends that the parole officers violated his Fifth Amendment right to remain silent when they questioned him concerning the parole violations. McPeak says the officers should have informed him of his Miranda1 rights because he was subject to what he claims was a custodial interrogation. He contends the Board should not have considered these statements in determining whether he violated conditions of parole. In our view, these arguments are without merit.

In Minnesota v. Murphy, 465 U.S. 420, 422, 104 S. Ct. 1136, 1139, 79 L. Ed. 2d 409, 416 (1984), the Court considered whether the Fifth and Fourteenth Amendments to the United States Constitution precluded the introduction of incriminating statements that Murphy had made to his probation officer at Murphy's subsequent criminal prosecution. The Court noted that the Fifth Amendment privilege against self-incrimination must be asserted in a timely manner. Id. at 428, 104 S. Ct. at 1142, 79 L. Ed. 2d at 420. However, the individual need not assert the privilege when in police custody if he is not suitably informed of his rights. Id. at 429, 104 S. Ct. at 1143, 79 L. Ed. 2d at 420-21.

The Court stated that Murphy was not in custody at the time he was questioned by his probation officer. Id. at 430, 104 S. Ct. at 1144, 79 L. Ed. 2d at 421. At that time, Murphy was not under formal arrest and his freedom of movement was not restrained to the extent associated with such an arrest. Ibid. Thus, the probation officer was not required to give Murphy Miranda warnings before conducting a routine interview with him. Id. at 430-31, 104 S. Ct. at 1144, 79 L. Ed. 2d at 421.

The Court observed that a State may validly insist on answers to even incriminating statements in order to "sensibly administer its probation system" provided it recognizes that "the required answers may not be used in a criminal proceeding." Id. at 435 n.7, 104 S. Ct. at 1146 n.7, 79 L. Ed. 2d at 425. "Under such circumstances, a probationer's 'right to immunity as a result of his compelled testimony would not be at stake.'" Ibid. (quoting Uniformed Sanitation Men Ass'n v. Comm'r of Sanitation, 392 U.S. 280, 284, 88 S. Ct. 1917, 1920, 20 L. Ed. 2d 1089, 1093 (1968)).

The Court also said that the United States Constitution does not preclude a state from revoking probation for a refusal to answer that violated a condition of probation, or considering the silence as a factor in the revocation decision. Ibid. (quoting Lefkowitz v. Cunningham, 431 U.S. 801, 808, n.5, 97 S. Ct. 2132, 2137 n. 5 L. Ed. 2d 1, 9 n.5 (1977)).

The Court further explained that, although the conditions of probation precluded Murphy from making false statements, Murphy had not been told he would not be continued on probation if he invoked his Fifth Amendment privilege. Id. at 437, 104 S. Ct. at 1147, 79 L. Ed. 2d at 426. The Court noted that there was no direct evidence that Murphy made the incriminating statements because he feared his probation would be revoked if he remained silent, and he was never told that he would be penalized if he invoked his Fifth Amendment privilege. Id. at 437-38, 104 S. Ct. at 1148, 79 L. Ed. 2d at 426.

We are convinced that the principles enunciated in Murphy apply as well to individuals like McPeak, who was on PSL rather than probation. Here, McPeak did not expressly assert his right to remain silent when he was questioned by the parole officers. McPeak was not told parole would be revoked if he asserted his right to remain silent. Moreover, despite McPeak's claim to the contrary, he was not in custody when he admitted to the PSL violations.

As Ward's testimony indicates, the home visits were part of the usual parole review process. Ward drove McPeak to the district office because his sergeant said it was best to continue the conversation there. While travelling to the office, McPeak sat in the back seat of Ward's car. McPeak was not handcuffed. McPeak never asked to drive himself to the district office, although Ward never suggested he could do so.

Ward further testified that he spoke with McPeak in his office with the door open, but the door was closed when McPeak signed the form regarding alcohol use. Ward stated that it was a normal office visit to discuss whether McPeak had been complying with the conditions of parole. McPeak was never told that he could not leave the office. The evidence therefore shows that McPeak's movements were not substantially restrained until the warrant was issued and he was formally taken into custody several days later.

Because McPeak was not in custody at home or in the district office when he was questioned by the parole officers, the parole officers were not required to give McPeak Miranda warnings before undertaking the normal process of questioning him about his compliance with the PSL conditions.

Our decision on this issue is consistent with Murphy, and also consistent with the decision of our Supreme Court in State v. Davis, 67 N.J. 222 (1975), cert. denied, 425 U.S. 943, 96 S. Ct. 1684, 48 L. Ed. 2d 187 (1976). In that case, Raymond Davis and Ernest Pace were convicted of armed robbery. Id. at 223. At the trial, the Davis and Pace claimed that they were elsewhere at the time of the robbery. Id. at 224. However, the State presented evidence showing that Pace had said he was in New Jersey on the date in question. Ibid.

Because Pace's statement was made to his parole officer, he argued that the statement was inadmissible because the officer had not provided him with Miranda warnings. Id. at 226. The Court stated that

[T]he Miranda rule is not applicable to the routine parole interview between a parole officer and a parolee. A parole officer acts as a guide and counselor to the parolee in his efforts to achieve and maintain rehabilitation. To work effectively the parole officer must know the parolee's whereabouts and activities both social and business. Routine conditions of parole state that the parolee is to report regularly to his parole officer and make a full disclosure of the foregoing. These routine reports and interviews are invariably non-custodial and, therefore, outside the ambit of Miranda. Moreover, implicit in the relationship is the requirement that the parolee cooperate fully and unreservedly in the parole experiment.

[Ibid.]

The Court held that the parole officer's questioning of Pace was not, however, a routine, non-custodial interview. Id. at 227. The questioning took place in jail, after Pace had been charged with robbery. Ibid. Thus, Pace should have been given Miranda warnings when the parole officer questioned him about his whereabouts. Ibid. The Court held that because the warnings were not given, Pace's statement should not have been admitted into evidence. Id. at 227-28.

Here, McPeak was questioned in non-custodial settings. The questioning was part of the routine parole process. Therefore, the parole officers were not required to give McPeak Miranda warnings before asking him about his compliance with the conditions of his parole.

IV.

McPeak also argues that the Board should not have considered his statements because the parole officers refused to honor his requests for counsel. Again, we disagree.

At the parole revocation hearing, Ward testified that McPeak did not ask to speak with an attorney during the May 21, 2012 interview. However, McPeak testified that he asserted his right to counsel several times on May 21, 2012. McPeak's mother also testified that she told Ward McPeak had an attorney, and Ward told her she would have to call him.

McPeak contends that the parole officers violated his Sixth Amendment right to counsel by continuing to question him after he asked to speak with his attorney. The hearing officer did not make a finding as to whether McPeak asked to speak with counsel, as he and his mother claimed.

Even if the hearing officer had credited McPeak's and Ms. McPeak's testimony on this issue, the Sixth Amendment did not apply to what was, in effect, a preliminary investigation of possible parole violations. State v. A.O., 198 N.J. 69, 81-82 (2009). See also Jamgochian v. N.J. State Parole Bd., 394 N.J. Super. 517, 548-49 (App. Div. 2007) (noting that the parolee's right to counsel, which manifests at the outset of a preliminary revocation hearing, arises from regulation and not the Constitution), aff'd as modified, 196 N.J. 222 (2008). Moreover, the assertion of the right to counsel might be sufficient to invoke the Fifth Amendment right to remain silent during a parolee's custodial interrogation. Murphy, supra, 465 U.S. at 427, 104 S. Ct. at 1142, 79 L. Ed. 2d at 419. As we stated previously, McPeak was not in custody when he was questioned by the parole officers.

V.

McPeak further argues that the Board's final decision was not supported by clear and convincing evidence. He contends that the decision was based on improperly obtained evidence, specifically the evidence obtained during the parole officers' interview. However, as we have concluded, the evidence was not improperly obtained. Moreover, as the Board determined, there is clear and convincing evidence in the record showing that McPeak violated the conditions of PSL.

McPeak also contends that the Board erred by revoking his parole, rather than implementing less restrictive measures. McPeak says the Board could have altered his reporting schedule, imposed special conditions, ordered him to attend a special program, imposed a curfew or placed him on an electronic monitoring program.

We are convinced, however, that the Board did not act arbitrarily or capriciously in choosing to revoke parole rather than impose other measures based on evidence that McPeak violated four conditions of PSL. The violation of the condition precluding Internet access and social networking was clearly a serious violation. As noted previously, McPeak met one of his victims on the Internet. Further, McPeak violated other conditions of PSL, which also were of a serious nature.

In addition, McPeak contends that the Board failed to consider the evidence in the mitigation package that his attorney submitted after the parole revocation hearing. The record shows that the adult panel reviewed the documents that counsel had provided after the parole revocation hearing and informed counsel that it had decided to reaffirm its prior decision to revoke PSL status. McPeak then appealed to the full Board and in his September 7, 2012 appeal letter, specifically referenced the mitigating evidence. Therefore, the record shows that the full Board considered all of the evidence before rendering its final decision.

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).