BRUCE ROBERTS 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NOT FOR PUBLICATION WITHOUT THE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

BRUCE ROBERTS,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

_______________________________

December 7, 2015

Submitted November 9, 2015 Decided

Before Judges Sabatino and Accurso.

On appeal from the New Jersey State Parole Board.

Lowenstein Sandler, LLP, attorneys for appellant (Karim G. Kaspar and Craig L. Dashiell, on the brief).

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

PER CURIAM

Bruce Roberts, an inmate in the State prison system, appeals from a September 24, 2014 final decision of the Parole Board reopening a 1995 parole proceeding, revoking his parole status and lengthening his future eligibility term (FET) from fifteen to twenty-eight months. Roberts contends he had already served out the fifteen-month FET imposed in July 1995 for his violation of parole when he returned to State custody in 2010 after serving a federal sentence. Because he had already served out the 1995 FET, he maintains the Board was without jurisdiction to reopen the 1995 parole proceedings, that the Board erred in denying him jail credit for the time between his arrest on federal bank robbery charges and his federal sentencing, and failed to "take into account considerations of fundamental fairness" in establishing the new twenty-eight-month FET. Because the Board's finding that Roberts had not served his 1995 FET by the time he returned to State custody in 2010 has substantial support in the record, and the decision was not otherwise arbitrary or an abuse of its discretion, we affirm.1

This case turns largely on whether Roberts was in State or federal custody after his arrest for robbing the National Westminster Bank in Trenton while on parole in May 1995. Although Roberts was held in the Mercer County Corrections Center while awaiting trial on federal bank robbery charges, both federal and State authorities have treated Roberts as if he were in federal custody during that period. If Roberts was in federal custody, then he had not already served his fifteen-month FET at the time he returned to State custody in 2010, and the Board had jurisdiction to reopen the earlier proceeding and impose the longer FET with no award of jail credits. Thus we turn to consider whether there is substantial evidence in the record to support the Board's finding that Roberts was in federal custody during the critical period. See Trantino v. N.J. State Parole Bd., 166 N.J. 113, 172-73 (2001).

In 1983, Roberts was sentenced to State prison for twenty-four and a half years, with ten and a half years of parole ineligibility for robbery. He was paroled in June 1993, with more than six years remaining on his sentence. He absconded, and a parole warrant was issued for his arrest on June 10, 1994.

Following his return to custody in January 1995, a hearing officer found probable cause that Roberts had violated the terms of his parole and determined he should remain in custody pending the final revocation hearing. Although concurring in the probable cause finding, the Chairman of the Parole Board directed Roberts be released pending a community revocation hearing. Roberts did not appear at the revocation hearing, and he was again declared an absconder and another parole warrant was issued on April 18, 1995.

Less than a month later, on May 9, 1995, Roberts robbed the National Westminster Bank and was apprehended by the Trenton police and the FBI the following day. He was confined at the Mercer County Corrections Center on both State and federal charges. A two-member Board Panel deemed Roberts' refusal to appear at a parole revocation hearing at the Corrections Center a waiver of his right to participate. On July 26, 1995, the Panel revoked defendant's parole and imposed a fifteen-month FET to begin on May 10, 1995, the date Roberts was arrested on the bank robbery charges. Roberts appealed that decision on September 16, 1995, claiming he did not intend to waive his revocation hearing. No action was taken on the appeal as Roberts was convicted on federal bank robbery charges less than two weeks later.

Roberts was sentenced on February 21, 1996 to serve a term of seventeen and a half years in federal prison. There is no dispute over the fact that the federal Bureau of Prisons granted Roberts jail credit on his federal sentence for the time he spent in the Mercer County Corrections Center from May 10, 1995, the date of his arrest on the federal charges, to February 21, 1996, the date he was sentenced on those charges.

Following Roberts' federal sentencing, the Board issued an amended Notice of Decision on June 21, 1996, noting the award of jail credits on Roberts' federal sentence, that those credits could not be applied toward the New Jersey parole violation term, and that Roberts would begin service of the fifteen-month FET upon his return to State custody after having served out his federal sentence.2 Parole officials sent letters to Roberts in July 1996 and May 1999 reiterating the Board's position.

While serving his federal sentence, Roberts pled guilty in 1997 in State court to a first-degree robbery of a store committed several weeks before the bank robbery. He was sentenced pursuant to his plea agreement to an eighteen-year prison term with eight years of parole ineligibility, to be served consecutive to his federal sentence. Roberts filed a timely petition for post-conviction relief claiming ineffective assistance of counsel in connection with his plea and an error in the calculation of his gap time credit.

The petition was denied, but the judge ordered the judgment of conviction amended to provide Roberts additional gap time credits. The March 1, 2002 amended judgment of conviction notes that Roberts was then serving a federal sentence for robbery, and that the federal offense "occurred a scant 3 months after this alleged offense although this defendant was not apprehended until a time when he was in federal custody in October 1995. He was served with the indictment and charge processed under the interstate compact act on detainer."3 (Emphasis added).

Defendant completed his federal sentence and returned to State custody on November 8, 2010 to begin serving his State sentences. On December 15, 2010, the Board issued an Amended Notice of Decision establishing the November 8, 2010 date of Roberts' return to State custody as the start date for his fifteen-month FET and noting the new "Adjusted Maximum Date" of May 30, 2016, that is, the date he would "max out" his 1983 sentence. Roberts immediately protested. He wrote several letters to the Board complaining of its decision that he serve the fifteen-month FET on his parole violation "first" without jail credits before beginning his 1997 sentence.

In November 2011, the Board wrote to Roberts explaining that his 1997 sentence had "been aggregated with the Parole Violation you incurred on July 26, 1995. The eligibility on the aggregation affords you a parole eligibility of September 18, 2019." On May 1, 2012, Roberts wrote to the Board "officially" requesting review of the Board's December 10, 2010 amended decision imposing a fifteen-month FET, and its "decision not to correct the erroneous information within my file which has this inmate serving a Parole Violation that has already been served and the failure to give this inmate credits on the 8 to 12 months previous[ly] served on the 15 month Parole Violation."

Craig W. Schindewolf, Chief of the Parole Revocation Unit, responded a week later. In a detailed letter, Schindewolf explained to Roberts that his federal sentence was consecutive to his New Jersey parole violation, that because he was awarded credit on his federal sentence for the time between his arrest on the federal charges and his sentencing, those credits could not also be applied against his FET on the parole violation, and that his fifteen-month FET commenced when he returned to State custody on November 8, 2010. Schindewolf ended his letter with this paragraph

As it currently stands, your parole has been revoked based upon your refusal to participate in your revocation hearing on July 11, 1995 and the Panel's decision of July 26, 1995. The current future parole eligibility term of 15 months is for violating technical parole conditions of failing to report etc. However, if you elect to participate in a revocation hearing at this point (consistent with your September 16, 1995 request), the Board will also consider your criminal conduct relative to your subsequent federal and state convictions. If that is your desire please be advised that pursuant to N.J.S.A. 30:4-123-60(c) there is a presumption that your parole shall be revoked and that the future parole eligibility term that then may be imposed is 28 48 months. Such term would also be deemed to be consecutive to your federal term and thus would not have commenced prior to your release from federal custody. Accordingly, please advise if you continue your desire and intent to participate in a revocation hearing as noted in your September 16, 1995 letter or if you wish your original "waiver" to remain in effect.

Roberts replied to Schindewolf on May 30 and 31, asking to have the matter scheduled for a parole revocation hearing as he had requested "back in 1995" and again on his return to State custody in November 2010. Per Roberts' request, the Panel vacated his parole on June 13, 2013, and the matter proceeded to a revocation hearing, at which Roberts was represented by the pro bono assigned counsel who have continued their representation of him on this appeal.

Roberts testified to the chronology he argued proved he had already served out his fifteen-month FET. He admitted his prior technical violations of parole as well as his convictions for the bank robbery and store robbery committed while on parole. He also testified to his extensive efforts at rehabilitation while in prison, including obtaining his G.E.D. and taking college courses in an Associate Degree Program. Counsel made a closing argument acknowledging the "tremendous amount of time" expended on understanding the chronology of events and the injustice of making Roberts re-serve the fifteen-month-FET term. Counsel also stressed the two decades that have passed since his client engaged in the behavior leading to his violation of parole and the impressive efforts Roberts has undertaken to rehabilitate himself in prison and assist other inmates in doing so as well.

The hearing officer, while commending Roberts for his many accomplishments during his nearly two decades of incarceration, concluded

[t]he fact that [Roberts] has been convicted on two new robberies cannot now be overlooked because [Roberts] does not agree with the way his parole eligibility date is calculated. The new crimes are a very serious violation of parole and are indicative of the persistent criminal activity that [Roberts] engaged in given his criminal history and the numerous prior opportunities on parole supervision.

Although concluding that revocation was indicated, the hearing officer recommended the imposition of an FET of twenty-eight months "at the lower end" of the presumptive range given Roberts' participation "in extensive rehabilitation and educational programs while incarcerated."

The Panel agreed with the hearing officer, revoked Roberts' parole and imposed a twenty-eight-month FET. Roberts appealed to the full Board. In a lengthy final decision, the Board explained that when the Panel established the fifteen-month FET in 1995 to start May 10, 1995, it was under the mistaken impression that Roberts was in State custody. The Board approved the Panel's subsequent correction of the parole eligibility date calculation once it became clear that Roberts was in federal custody upon his arrest on federal bank robbery charges.

The Board further noted that even assuming Roberts was technically in State custody upon his arrest, having received credit on his federal sentence for the time between his arrest and sentence, "Mr. Roberts cannot receive credit towards the service of the balance of the original New Jersey sentence and, therefore, the service of the parole eligibility term imposed for violation of parole." The Board agreed that under the circumstances, Roberts' service of the fifteen- month FET did not begin until he returned to State custody, and thus that it had not been served when Roberts returned to State custody in November 2010. The Board further found that Roberts had been notified "he would not be credited with the service of his New Jersey time until he was actually released from Federal custody and returned to the custody of the State of New Jersey" on "numerous occasions" since June 1996 when the Panel issued its amended decision to that effect.

The Board noted that it was Roberts and not the State that petitioned for the reopening of the parole proceedings and that Roberts did so even after being advised that it would require the Board to consider not only his technical violations but also the two robberies he committed while on parole. The Board rejected Roberts' claim that the Panel failed to take into account his many accomplishments in setting the twenty-eight-month FET. The Board noted that the presumptive term upon revoking parole for the commission of a first-degree offense is thirty-eight months and the presumptive range is from twenty-eight to forty-eight months. That Roberts' FET was set at the bottom of the range, despite two first-degree crimes committed at different times while on parole, made clear to the Board that Roberts' accomplishments in prison had indeed been taken into account by the Panel. Accordingly, the Board affirmed the new twenty-eight-month FET, but noted Roberts should be credited with the two months he spent in State custody from January to March 1995 awaiting his revocation hearing. This appeal followed.

Having reviewed the record we set out here, we conclude there is ample evidence to support the Board's finding that Roberts was in federal custody following his arrest on federal bank robbery charges in May 1995. Beyond the Board's own documents, actions by federal and State authorities at or near the time of Roberts' convictions for the robberies indicate that, although held in the Mercer County Corrections Center, Roberts was in federal custody after his arrest on May 10, 1995.

Roberts' amended judgment of conviction for the store robbery states expressly that he "was not apprehended until a time when he was in federal custody in October 1995." It further notes that "[h]e was served with the indictment and charge processed under the interstate compact act on detainer." Further, Roberts concedes that he received credit on his federal sentence for the time between his arrest by the FBI and his federal sentencing.

Federal law is clear that multiple terms of imprisonment imposed at different times run consecutively unless the federal court orders that the terms are to run concurrent. 18 U.S.C.A. 3584(a). Further, the Bureau of Prisons, which is responsible for designating a prisoner's place of imprisonment, 18 U.S.C.A. 3621(b), must award a defendant credit against his sentence for time spent in federal custody awaiting trial but may award credits for time spent in state custody only if the time has not already been credited toward a state sentence.4 See 18 U.S.C.A. 3585(b); Rios v. Wiley, 201 F.3d 257, 272 (3d Cir. 2000).

Given Roberts' judgment of conviction and the credits awarded against his federal sentence, the Board acted well within its discretion in concluding that Roberts was in federal custody following his arrest in May 1995. Pursuant to N.J.S.A. 30:4-123.65, the issuance of the April 18, 1995 parole warrant tolled the running of Roberts' 1983 sentence until he was returned to State custody on the warrant on November 8, 2010. Accordingly, we find no error in the Board's determination that Roberts did not begin serving his fifteen-month FET on his 1995 parole violation until his return to State custody in 2010.

We also reject Roberts' contention that the Panel was without jurisdiction to vacate his fifteen-month FET in June 2013. Looking beyond the fact that Roberts petitioned repeatedly to have the Board reopen his 1995 parole revocation proceeding, the law is well established that a Board member, the Panel or the full Board may reconsider any decision to grant, deny or revoke parole for good cause. See N.J.A.C. 10A:71-4.3; N.J. State Parole Bd. v. Mannson, 220 N.J. Super. 566, 570 (App. Div. 1987), certif. denied, 110 N.J. 194 (1988). We have no doubt that Roberts' two robbery convictions would qualify as good cause for the Panel to reconsider its prior FET, established after the commission of the crimes but before conviction, if more than Roberts' request to reopen was required. See Hare v. New Jersey State Parole Bd., 368 N.J. Super. 175, 178-79 (App. Div.), certif. denied, 180 N.J. 452 (2004).

Finally, we reject Roberts' argument, asserted in the alternative, that the Board erred in failing to award him jail credits for the time spent in detention between his arrest in May 1995 and his federal sentencing in February 1996 pursuant to State v. Hernandez, 208 N.J. 24, 47-48 (2011). The Court in Hernandez made clear that the decision "shall apply only prospectively to sentences imposed as of tomorrow, except for those matters still on direct appeal in which the amount of jail credits was actually questioned or challenged by defendant at sentencing." Id. at 51. Roberts was sentenced in 1983, well before Hernandez's effective date. The Board's decision to revoke parole and impose an FET "does not constitute a new sentencing event within the contemplation of N.J.S.A. 2C:44-5b(2)" to which Hernandez would be applicable. State v. Franklin, 175 N.J. 456, 471 (2003) (quoting State v. Hunt, 272 N.J. Super. 182, 185 (App. Div. 1993), certif. denied, 137 N.J. 307 (1994)); see also N.J.S.A. 2C:44-5b(3).

Although the briefs filed by Roberts' pro bono counsel forcefully contend the Board's decision must be set aside for reasons of law and fundamental fairness, none of those arguments, although well-articulated, are sufficient to allow us to set aside the Board's decision under our limited standard of review. Accordingly, we affirm the Board's September 24, 2014 final decision.

Affirmed.

1 Because Roberts is not challenging the Board's decision to revoke his parole, the clear and convincing standard does not apply. See N.J.A.C. 10A:71-7.12(c)(1); -7.15(c).

2 The Board notes "it is unclear whether Mr. Roberts received said amended Notice of Decision."

3 The original judgment of conviction likewise reflected that Roberts had been in federal custody following his arrest on May 10, 1995.

4 The attorney general is responsible for computing federal sentences for all offenses committed on or after November 1, 1987. United States v. Wilson, 503 U.S. 329, 334-35, 112 S. Ct. 1351, 117 L. Ed. 2d 593 (1992); 18 U.S.C.A. 3585. She has delegated that authority to the Director of the Bureau of Prisons, 28 C.F.R. 0.96 (2015).