ERICK FONTANEZ 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NOT FOR PUBLICATION WITHOUT THE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-0

ERICK FONTANEZ,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

_________________________________________

December 15, 2015

Submitted November 5, 2015 Decided

Before Judges Ostrer and Manahan.

On appeal from the New Jersey State Parole Board.

Erick Fontanez, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Andrew J. Sarrol, Deputy Attorney General, on the brief).

PER CURIAM

Erick Fontanez was incarcerated at Southern State Correctional Facility. Fontanez appeals from a September 25, 2013 decision of the New Jersey State Parole Board (Board), affirming the Board panel's (Panel) decision revoking his mandatory supervision status and imposing a fourteen-month future eligibility term.

On May 9, 2008, Fontanez was sentenced to a seven-year term for kidnapping, and to a five-year mandatory period of supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. On July 14, 2012, Fontanez was released to mandatory supervision, having served his maximum term. Fontanez's parole was also subject to a "special condition" that he "enter and complete an [outpatient drug counseling (OPDC)] program[.]" Fontanez violated the terms of his mandatory supervision and special condition by using controlled dangerous substances and failing to enroll in, attend, or complete OPDC while on parole.

We have been advised prior to the appeal's submission for decision that Fontanez was again paroled on October 6, 2015. As such, we first address whether Fontanez's parole status renders his appeal moot.

This court has held "that an intervening completion of a custodial sentence will not affect a defendant's right to appeal from the underlying conviction. Nor will it affect his right to challenge a probation revocation." Bd. of Tr. of Youth Corr. Ctr. v. Davis, 147 N.J. Super. 540, 543 (App. Div. 1977) (internal citations omitted). "The preservation of a defendant's right of appeal in these circumstances is predicated upon those considerations of due process and fundamental fairness which require that he be afforded an opportunity to protect himself from the future adverse effects inevitably implicit in a criminal conviction." Ibid. A criminal case will be moot "'if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the [issue] challenged[.]'" Ibid. (quoting Sibron v. New York, 392 U.S. 40, 57, 88 S. Ct. 1889, 1900, 20 L. Ed. 2d 917, 931-32 (1968)). Here, given the five-year period of parole supervision, Fontanez continues to remain subject to revocation. It is conceivable that the parole revocation under review, which Fontanez argues was erroneous, may be a matter of consequence that would adversely impact a future parole determination as to revocation or, upon revocation, the length of his incarceration. Therefore, despite Fontanez's parole, we will address the appeal on its merits.

Fontanez contends in his brief that the Board's decision should be reversed because it was not supported by sufficient credible evidence in the record. Fontanez argues that the Board failed to determine that there was a reasonable expectation that he would violate the conditions of parole if released, and that the specific conditions of his parole were vague. We disagree.

We accord considerable deference to the Board and its expertise in parole matters. The scope of our review of final decisions of administrative agencies is limited. We do not disturb decisions of the Board, like those of other administrative agencies, unless they are "arbitrary, capricious or unreasonable or [are] not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

Pursuant to 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[.]" Unlike most parole actions, which are based on a preponderance of the evidence standard, revocations of parole must be supported by clear and convincing evidence in the record. N.J.A.C. 10A:71-1.12(c)(1). We have held that "clear and convincing evidence" is that

upon which the trier of fact can rest a firm belief or conviction as to the truth of the allegations sought to be established. It must be so clear, direct and weighty and convincing as to enable either a judge or jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.

[In Re Registrant R.F., 317 N.J. Super. 379, 384 (App. Div. 1998) (internal citations and quotation marks omitted).]

While on parole, Fontanez was subject to mandatory supervision and a special condition. He was to "refrain from the use, possession, or distribution of a controlled dangerous substance" and "enter and complete an [OPDC] program acceptable to the District Parole Supervisor." See N.J.S.A. 2C:35-2; see also N.J.S.A. 2C:35-11. As a result of his continued use of unauthorized medication and failure to attend an OPDC program, a parole warrant was issued for Fontanez.

At the notice of probable cause hearing, the hearing officer found that Fontanez "failed to refrain from the use of a controlled dangerous substance as defined in [N.J.S.A.] 2C:35-2 and [N.J.S.A.] 2C:35-11 as evidenced by [his] admission to using a Percocet pill on 1/25/13[,]" and that Fontanez also "failed to enroll in, attend, or complete outpatient drug counseling as evidenced by [his] failure to enroll in counseling at Bayonne Community Mental Health Center."

On February 28, 2013, the probable cause hearing commenced. Fontanez elected to convert the hearing to a violation hearing. After reviewing the evidence in the record, the hearing officer found that clear and convincing evidence existed that Fontanez violated the mandatory supervision conditions and the special condition of his parole. The hearing officer reasoned,

It is of the opinion of this [h]earing [o]fficer that the violations are serious in that [Fontanez] continued to use opiate-based medications, on a prescription basis, after being instructed by the Division of Parole to speak to his doctors about shifting to nonnarcotic medications. The [h]earing [o]fficer finds that the Division of Parole acted in a prudent and fully responsible manner in attempting to address [Fontanez's] substance abuse issues. It took [Fontanez] an extended period of time to make an appointment at the Bayonne Community Mental Health Center and that appointment was pending at the time of his arrest. . . . The [h]earing [o]fficer recommends that [Fontanez] be continued on parole with the requirement he participate in intensive outpatient drug counseling with random and frequent urine monitoring.

On March 27, 2013, a two-member Panel reviewed the hearing officer's decision. The Panel adopted the findings of the hearing officer, but rejected the officer's recommendation that Fontanez continue on parole and participate in an OPDC program. The Panel held that Fontanez's mandatory supervision should be revoked based upon the serious nature of the violations and ordered that he serve a parole eligibility term of fourteen months. The Panel cited to Fontanez's "extremely serious commitment offense[,] continuous drug use and [failure] to attend counseling[,]" as reasons for rejecting the hearing officer's recommendation and revoking Fontanez's mandatory supervision.

Fontanez appealed the Panel's decision to the full Board. On September 25, 2013, the Board affirmed the Panel's decision and held in pertinent part

With regards to [Fontanez's] contention that the Board Panel's decision was arbitrary, the Board finds that the Board Panel based its determination on clear and convincing evidence that [Fontanez] violated parole, that the violations were serious, and that revocation of [Fontanez's] parole was warranted and desirable. . . . The Board finds that [Fontanez's] appeal contains no evidence to support this claim. Furthermore, the Board finds that the Board Panel considered the record of [Fontanez's] revocation hearing and based its decision on sufficient credible evidence in the record. As such, the Board finds that the Board Panel did not act arbitrarily in making their decision in this case, but rather, the Board Panel acted appropriately and in accordance with the Administrative Code. The Board finds therefore, that [Fontanez's] contention lacks merit.

. . . .

. . . Additionally, in assessing [Fontanez's] case, the Board concurs with the determination of the Board Panel that clear and convincing evidence exists that [Fontanez has] seriously violated the conditions of parole and that revocation is desirable. Accordingly, the Board affirms the Board Panel's March 27, 2013 decision to revoke [Fontanez's] mandatory parole supervision status and establish a fourteen (14) month future eligibility term.

Having reviewed the record, we conclude as well that there was clear and convincing evidence that Fontanez violated the conditions of his parole. It is without dispute that Fontanez continued to take non-authorized medications and failed to enroll in an OPDC program, and that those violations were of a magnitude and significance to support parole revocation. In accord with our standard of review, we also conclude that the Board's determination was not arbitrary, capricious, or unsupported by substantial credible evidence in the record. See Henry, supra, 81 N.J. at 579-80.

Affirmed.