JOSEPH J. NORMAN VS. NEW JERSEY STATE PAROLE BOARD (STATE PAROLE BOARD) (RECORD IMPOUNDED) , 457 N.J. Super. 513 ( 2019 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3920-17T4
JOSEPH J. NORMAN,
APPROVED FOR PUBLICATION
Appellant,
January 14, 2019
v. APPELLATE DIVISION
NEW JERSEY STATE
PAROLE BOARD,
Respondent.
________________________
Submitted December 19, 2018 – Decided January 14, 2019
Before Judges Alvarez, Nugent and Mawla.
On appeal from the New Jersey State Parole Board.
Borger Matez, PA, attorneys for appellant (Jonathan
E. Ingram, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Christopher C. Josephson,
Deputy Attorney General, on the brief).
The opinion of the court was delivered by
MAWLA, J.A.D.
Appellant Joseph J. Norman appeals from March 28 and April 24, 2018,
decisions by the New Jersey State Parole Board (Board). The primary
question raised on appeal is whether an appellant who has served his sentence
pursuant to the Sex Offender Act (SOA), N.J.S.A. 2C:47-1 to -10, can be
compelled to undergo a psychological evaluation for violation of certain
conditions of parole supervision for life (PSL), and mandatory parole
supervision (MPS), imposed outside the SOA. We hold the Board cannot
compel such an evaluation and reverse that part of its decision. We affirm the
Board's imposition of a parole eligibility term (PET) for Norman's violation of
a special condition of MPS.
We take the following facts from the record. Norman was twenty-one
years old when he committed several acts of aggravated sexual assault against
a fourteen-year-old family member. He was arrested in September 2008, and
in December 2008, pled guilty to one count of first-degree aggravated sexual
assault, in violation of N.J.S.A. 2C:14-2(a)(2)(A).
Norman was sentenced in the second-degree range to seven years of
incarceration in the Adult Diagnostic and Treatment Center (ADTC), subject
to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(d)(7). NERA
requires MPS for all first- and second-degree offenses. N.J.S.A. 2C:43-7.2(c).
A-3920-17T4
2
Norman was further sentenced to PSL following service of the custodial
portion of his sentence, as required by N.J.S.A. 2C:43-6.4(a).
On September 9, 2014, Norman was granted parole and discharged from
the ADTC "by reason of the expiration of his maximum custodial sentence."
Norman had served his entire seven-year sentence through a combination of
jail credits and time served following his conviction. His final discharge
stated he was "being discharged from the custodial portion of his . . . sentence
only to commence the period of supervision as set forth by . . . [NERA]."
Specifically, Norman was paroled for five years pursuant to MPS, and also
began PSL pursuant to N.J.S.A. 2C:43-6.4(a). Notably, he was not paroled
pursuant to N.J.S.A. 2C:47-5(a), which governs sex offenders who are paroled
before the expiration of their maximum sentence under SOA.
In pertinent part, the conditions of MPS required Norman to:
"Immediately notify the assigned parole officer of any change in employment
status. . . . Refrain from initiating, establishing or maintaining contact with
any minor[,] . . . [and] [s]uccessfully complete the EMP[.] [1]" Separately, PSL
also included the same conditions. Notably, the Board stated Norman's "PSL
status was previously continued to the [EMP] in 2016[,] and most recently
continued to the [EMP] in February of 2017[]" because of a prior violation.
1
Electronic Monitoring Program.
A-3920-17T4
3
In May 2017, Norman was arrested for violating parole by failing to
inform his parole officer that he had been terminated from his job and for
having unsupervised visits with his minor children. On October 18, 2017, a
Board panel found Norman had violated the PSL and MPS conditions of his
parole. The panel revoked Norman's PSL and directed him to serve twelve
months of incarceration. It also revoked MPS and referred him to the ADTC
for a psychological evaluation, pursuant to N.J.A.C. 10A:71-3.54(i)(3) and
10A:71-7.19A.
On March 28, 2018, the Board affirmed the panel's determination.
According to the Board, the purpose of the psychological evaluation was to
"determine whether to affirm the revocation of the mandatory term of
supervision and, if affirmed, whether . . . Norman's eligibility for future
mandatory supervision consideration will be based on N.J.S.A. 2C:47-5(a) or
the relevant provisions of N.J.S.A. 30:4-123.45 [to -123.88]."
Norman did not challenge the twelve months of incarceration for
violating PSL. Rather, he requested the Board revise its determination to
permit his release, effective May 16, 2018, having served the twelve months in
confinement, and to resume parole. He argued neither the regulation
governing MPS, nor the one governing PSL, granted the Board authority to
A-3920-17T4
4
require a psychological evaluation as a condition of resuming parole, and his
continued confinement as a result was unconstitutional.
On April 24, 2018, the Board denied Norman's request. This appeal
followed.
I.
The issue on appeal – the Board's interpretation of statutes governing
Norman's sentence and regulations regarding his parole – presents a question
of law. We owe considerable deference to an agency's interpretation of its
own regulations. US Bank, NA v. Hough, 210 N.J. 187, 200 (2012) (quoting
In re Election Law Enf't Comm'n Advisory Op. No. 01-2008, 201 N.J. 254,
262 (2010)). However, "an agency's interpretations, whether through
regulations or administrative actions, 'cannot alter the terms of a legislative
enactment nor can they frustrate the policy embodied in [a] statute.'" Williams
v. N.J. Dep't of Corr., 423 N.J. Super. 176, 183 (App. Div. 2011) (alteration in
original) (quoting N.J. Ass'n of Realtors v. N.J. Dep't of Envtl. Prot., 367 N.J.
Super. 154, 159-60 (App. Div. 2004)). "Ultimately, reviewing courts are not
'bound by the agency's interpretation of a statute.'" Ibid. (quoting Shim v.
Rutgers, 191 N.J. 374, 384 (2007)).
On appeal, Norman asserts he was not paroled pursuant to the SOA, and
consequently is not subject to the provisions of N.J.A.C. 10A:71-3.54(i)(3) and
A-3920-17T4
5
N.J.A.C. 10A:71-7.19A. He argues subjecting him to a psychiatric evaluation
when he had already served his original sentence placed him in double
jeopardy and constituted ex post facto punishment. He also argues he should
have been released no later than May 17, 2018, pursuant to N.J.A.C. 10A:71 -
3.54(i)(2) and 10A:71-7.17B(a)(2). He asserts a twelve-month PET should not
have been imposed because he did not violate a special condition certified to
by the Board.
II.
As we noted, the Board revoked Norman's MPS and referred him to the
ADTC for a psychological evaluation, pursuant to N.J.A.C. 10A:71-3.54(i)(3)
and 10A:71-7.19A. The Board's interpretation of the regulation was mistaken.
"An administrative agency, in construing its regulations, must apply the
same rules of construction as those guiding statutory construction by the
courts." Krupp v. Bd. of Educ. of Union Cty. Reg'l High Sch. Dist. No. 1, 278
N.J. Super. 31, 38 (App. Div. 1994) (citing In re N.J.A.C. 14A:20-1.1, 216
N.J. Super. 297, 306-07 (App. Div. 1987)). For that reason, a regulation
"should be construed according to the plain meaning of the language." In re
1999-2000 Abbott v. Burke Implementing Regulations, 348 N.J. Super. 382,
399 (App. Div. 2002) (citing Medford Convalescent & Nurs. Ctr. v. Div. of
Med. Assist. & Health Servs., 218 N.J. Super. 1, 5 (App. Div. 1985)); accord
A-3920-17T4
6
Czar, Inc. v. Heath, 398 N.J. Super. 133, 138 (App. Div. 2008), aff'd as
modified, 198 N.J. 195 (2009).
"If the plain language leads to a clear and unambiguous result, then [the]
interpretive process is over." Calco Hotel Mgmt. Grp., Inc. v. Gike, 420 N.J.
Super. 495, 503 (App. Div. 2011) (alteration in original) (quoting TAC
Assocs. v. N.J. Dept. of Envtl. Prot., 202 N.J. 533, 541 (2010)). Furthermore,
"courts should avoid a construction that would render 'any word in the statute
to be inoperative, superfluous or meaningless, or to mean something other than
its ordinary meaning.'" Ibid. (quoting Bergen Commercial Bank v. Sisler, 157
N.J. 188, 204 (1999)).
Criminal statutes are subject to sharper scrutiny for vagueness than civil
statutes because criminal statutes have greater penalties and more severe
consequences. State v. Maldonado, 137 N.J. 536, 562 (1994) (citing State v.
Afanador, 134 N.J. 162, 170 (1993)); State v. Bond, 365 N.J. Super. 430, 438
(App. Div. 2003). This comports with the doctrine that "penal statutes must be
strictly construed against the State." State v. Soltys, 270 N.J. Super. 182, 188
(App. Div. 1994) (quoting State v. Churchdale Leasing, Inc., 115 N.J. 83, 102
(1989)).
Strict construction is appropriate as long as it is not contrary to the
Legislature's plain intent, State v. Anicama, 455 N.J. Super. 365, 386 (App.
A-3920-17T4
7
Div. 2018) (quoting State v. Carreker, 172 N.J. 100, 115 (2002)), and as long
as it would not "unduly hinder" the Legislature's "object and purpose." State
v. Marchiani, 336 N.J. Super. 541, 545 (App. Div. 2001) (citing State v.
Rucker, 46 N.J. Super. 162, 167-68 (App. Div. 1957)).
N.J.A.C. 10A:71-7.19A(a) states "[t]his section applies to offenders who
were sentenced to confinement in the [ADTC] under N.J.S.A. 2C:47-1 [to -10]
for an offense committed on or after December 1, 1998; who were paroled
under the provisions of N.J.S.A. 2C:47-5(a); and who violate parole." Such
individuals are subject to a psychological examination. N.J.A.C. 10A:71-
7.19A(b). The purpose of the examination is to:
determin[e] whether the violation(s) of the parole
conditions reflects emotional or behavioral problems
as a sex offender that cause the offender to be
incapable of making any acceptable social adjustment
in the community and, if so, to determine further the
inmate's amenability to sex offender treatment and, if
amenable, the inmate's willingness to participate in
such treatment.
[N.J.A.C. 10A:71-7.19A(d).]
[I]f the report of the examination conducted pursuant
to . . . [N.J.A.C. 10A:71-7.19A(d)] above reveals that
the inmate's violation(s) of the parole conditions
reflects emotional or behavioral problems as a sex
offender that cause the inmate to be incapable of
making any acceptable social adjustment in the
community and further reveals that the inmate is
amenable to sex offender treatment and is willing to
participate in such treatment. The inmate shall be
A-3920-17T4
8
eligible for parole pursuant to the provisions of
N.J.S.A. 2C:47-5(a).
[N.J.A.C. 10A:71-7.19A(i).]
By its plain language, N.J.A.C. 10A:71-7.19A(a) contemplates an inmate
who was paroled, pursuant to N.J.S.A. 2C:47-5(a) before completing his
sentence and committed a parole violation. Indeed, the entire rubric of the
aforementioned regulations contemplates the inmate's return to the State's
custody and an evaluation to determine whether he can safely serve the
remainder of his sentence in the community. These regulations are
inapplicable to an inmate who has served the entirety of his sentence under the
SOA.
Our conclusion is further supported by the fact N.J.A.C. 10A:71-7.19A
was enacted to codify our holding in State v. Dalonges, 128 N.J. Super. 140(App. Div. 1974). In 1957, Dalonges pled non vult to sexually assaulting a
fifteen year old. Id. at 143. He was incarcerated in 1958 and paroled with
conditions in 1962, before completing his sentence. Id. at 143-44. In 1967, he
violated the conditions of his parole by leaving New Jersey without permission
and attempting petit larceny in New York. Id. at 144. Once he was returned to
custody, a psychological evaluation was performed and revealed no issues or
concern he would reoffend as a sexual predator. Ibid. Thus, Dalonges
A-3920-17T4
9
challenged the revocation of parole where he had committed a non-sexual
offense. Id. at 145.
On appeal, we held the intent of the SOA was to treat sexual offenders.
Id. at 145-46. We concluded Dalonges' parole violations did not relate to his
original offenses and did not justify keeping him in custody for further
treatment. Id. at 147-48. Most importantly, Dalonges' violations occurred
while he was paroled and before he served his sentence. Id. at 143-44.
In contrast, Norman had already served his sentence. Thus, the facts and
outcome of Dalonges underscore that N.J.A.C. 10A:71-7.19A does not apply
to Norman. Moreover, we note MPS and PSL did not exist at the time of our
holding in Dalonges.2 Therefore, we reject the Board's assertion these parole
supervision and monitoring regimes fall within the SOA, and thus constitute a
continuation of Norman's SOA sentence.
Furthermore, we reject the Board's argument that it can compel a
psychological evaluation in order to determine Norman's future parole
eligibility under MPS based upon N.J.S.A. 2C:47-5(a). The statute states:
"Any offender committed to confinement under the terms of this chapter shall
2
"The 2003 Amendment to N.J.S.A. 2C:43-6.4 'replaced all references to
"community supervision for life" with "parole supervision for life."'" State v.
Hester, 233 N.J. 381, 394-95 (2018) (quoting State v. Perez, 220 N.J. 423, 429
(2015)). N.J.A.C. 10A:71-3.54 codified mandatory supervision cases effective
August 3, 1998. 30 N.J.R. 2920(a).
A-3920-17T4
10
become eligible for parole consideration upon referral to the State Parole
Board of the offender's case by a special classification review board appointed
by the commissioner." N.J.S.A. 2C:47-5(a). Thus, by its plain language,
N.J.S.A. 2C:47-5 does not apply to Norman because he served his SOA
sentence, and is no longer subject to its provisions, and because the PSL and
MPS requirements operate under a different statutory framework.
Therefore, the Board's argument that N.J.A.C. 10A:71-3.54(i)(3) applies
when an MPS term is revoked, and authorizes the Board to order the
psychological evaluation, misreads the regulation and N.J.S.A. 2C:47-5. In
pertinent part, the regulation states:
(i) If a term of parole supervision imposed by a court
pursuant to N.J.S.A. 2C:43-7.2 is revoked by the
appropriate Board panel and the offender returned to
custody for violation of a condition of supervision the
Board panel shall determine:
....
3. Whether the offender, if originally sentenced
pursuant to N.J.S.A. 2C:47-1 [to -10] and eligibility
for parole consideration required the recommendation
of the Special Classification Review Board, shall be
eligible for parole consideration pursuant to the
provisions of N.J.A.C. 10A:71-7.19 or 7.19A, as
appropriate.
[N.J.A.C. 10A:71-3.54(i)(3).]
A-3920-17T4
11
The plain language of the regulation demonstrates it does not apply to
Norman. In Norman's final discharge document dated September 9, 2014, the
Board acknowledged he had been released from ADTC because of the
"expiration of his maximum custodial sentence." Furthermore, the Board
stated: "This offender is being discharged from the custodial portion of his . . .
sentence only to commence the period of supervision as set forth by . . .
[NERA]." Thus, the Board acknowledged MPS was not a continuation of the
SOA sentence, which had already been completed. Moreover, for reasons we
have already discussed, N.J.A.C. 10A:71-3.54(i)(3)'s reference to N.J.A.C.
10A:71-7.19A does not apply to Norman.
For these reasons, we reverse the Board's finding Norman was required
to undergo a psychological evaluation. 3 We hold that where an individual has
already served his sentence, he cannot be required to undergo a psychological
evaluation pursuant to N.J.A.C. 10A:71-3.54(i)(3) and 10A:71-7.19A. Absent
further comment by the Legislature, these regulations only apply to individuals
who have been released on parole before completing their sentence.
3
We decline to address Norman's constitutional arguments because the plain
language of the regulations resolve the issue. "Constitutional questions should
not be addressed unless they are imperative for the disposition of the
litigation." Grant v. Wright, 222 N.J. Super. 191, 197-98 (App. Div. 1988)
(citing State v. Salerno, 27 N.J. 289, 296 (1958)).
A-3920-17T4
12
III.
Finally, Norman argues that under N.J.A.C. 10A:71-3.54(i)(2) he should
have received a term of nine months PET, pursuant to N.J.A.C. 10:71-
7.17B(a)(2), and no more than twelve months under N.J.A.C. 10A:71-
7.17B(a)(3)(viii). Norman asserts the Board failed to state its reasons for
imposing a twelve-month PET. He argues the PET could not have been
established for a violation of a special condition, under N.J.A.C. 10A:71-6.4(e)
or (f), because the former provision only applies when the Board certifies to a
special condition, and the latter concerns a violation where an individual fails
to notify an employer of his parole status and criminal record. Norman argues
neither provision applies here.
We find no error in the Board's imposition of a twelve-month PET. The
Board has broad discretion in parole release decisions. Trantino v. N.J. State
Parole Bd., 296 N.J. Super. 437, 470 (App. Div. 1997) (citing State v. Lavelle,
54 N.J. 315 (1969)). N.J.A.C. 10A:71-7.17B(a)(3)(viii) requires the
imposition of a twelve-month PET for a violation of a special condition of
parole imposed under N.J.A.C. 10A:71-6.4(e). The Board's March 28, 2018
decision stated as follows: "The Board finds that . . . Norman was placed on
the [EMP] on February 15, 2017[,] as a result of a Board panel Notice of
Decision dated January 18, 2017[,] that imposed the special condition that . . .
A-3920-17T4
13
Norman successfully complete the [EMP]." Thus, contrary to Norman's
claims, the Board panel had imposed special conditions when it adjudicated a
prior parole violation in 2017 and decided to continue him on parole.
Separate from the SOA, Norman was subject to MPS as a part of his
original sentence, which he violated. Therefore, the imposition of a twelve-
month PET, pursuant to N.J.A.C. 10A:71-7.17B(a)(3)(viii), for violation of the
special condition was valid.
Reversed in part and affirmed in part. We do not retain jurisdiction.
A-3920-17T4
14