COURTNEY BUNCH VS. NEW JERSEY STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3978-19
COURTNEY BUNCH,
Appellant,
v.
NEW JERSEY STATE
PAROLE BOARD,
Respondent.
___________________
Submitted March 24, 2021 – Decided April 20, 2021
Before Judges Ostrer and Enright.
On appeal from the New Jersey State Parole Board.
SM Law PC, attorneys for appellant (Marc D. Miceli,
of counsel and on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Christopher C. Josephson, Deputy
Attorney General, on the brief).
PER CURIAM
Appellant Courtney Bunch appeals from a May 27, 2020 final agency
decision by the New Jersey State Parole Board (Board) revoking his parole and
ordering him to serve eighteen months in state prison for violating conditions of
parole supervision for life (PSL). We affirm.
I.
Bunch was sentenced in 2005 to three years in prison for third-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4(a). In addition to the
custodial term, Bunch was sentenced to PSL under Megan’s Law, N.J.S.A.
2C:43-6.4. He was released from custody in June 2007 and began to serve PSL.
The record reflects Bunch violated PSL conditions five times and served five
violation terms before his most recent PSL violation in September 2019.
Prior to his 2019 PSL violation, Bunch was apprehended in July 2018 on
a parole violation warrant. In November 2018, the Board conducted a final
revocation hearing. The hearing officer sustained the violations, but determined
they were not so serious or persistent to warrant revocation. The hearing officer
recommended that Bunch be continued on PSL status subject to completing a
180-day program entitled PROMISE, a program geared to "returning offenders
with mental illness safely and effectively" to the community. A two-member
Board panel concurred with the hearing officer's findings and recommendation
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in February 2019, so Bunch's parole was continued, subject to his successful
completion of the PROMISE program.
II.
In September 2019, a month before he was due to complete PROMISE,
Bunch was terminated from the program and remanded into custody for violating
parole. On September 11, 2019, he was served with written notification of his
violation, alleging he failed to complete PROMISE and that while he attended
the program, he engaged in suspicious behavior in the restroom, inappropriately
touched another client, refused to sign a thirty-day behavioral contract, and
kicked a television stand.
With the benefit of counsel, Bunch waived a probable cause hearing and
proceeded directly to a final parole revocation hearing on November 21, 2019.
During the revocation hearing, Bunch pled "guilty with an explanation" to the
sole violation at issue, i.e., failing to complete PROMISE. His attorney admitted
to Hearing Officer Shea that Bunch was discharged early from PROMISE.
Counsel explained the early discharge was based on approximately "six writeups
that [Bunch] received . . . which really don't amount to anything of the level of
serious or persistent as described under the New Jersey statute or the case law."
In his defense, Bunch denied committing various infractions at PROMISE,
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including touching another client, and he contended certain infractions resulted
from misunderstandings between himself and staff. Bunch also stated he
intended no disrespect towards staff.
Hearing Officer Shea also considered a parole officer's testimony
regarding Bunch's failure to successfully complete PROMISE. The parole
officer stated:
I reviewed [Bunch's] record, and it appears that he’s
been through every alternative program either in lieu of
custody or as a corrective measure to bring him back
into compliance where the behavior started regressing.
Now this also included the Promise Program, which
was supposed to be the end all, so to speak.
Based on the "totality of the circumstances," the parole officer
recommended revocation of Bunch's parole and that he serve an eighteen-month-
term of incarceration.
The hearing officer found by clear and convincing evidence that Bunch
violated the condition of his supervision by failing to successfully complete
PROMISE. She concluded the violation "is serious and revocation is desirable."
Additionally, the hearing officer found Bunch
received numerous write-ups for failing to follow
directives within the facility[,] . . . blatantly disregarded
staff directives and acted inappropriately when things
did not go his way. [Bunch] was again given an
opportunity to remain in the program after being placed
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on a 30-day contract. However, [Bunch] refused to sign
the contract because he "did not feel it was necessary"
and then received another write-up after he was placed
on the contract.
The hearing officer agreed with the parole officer's recommendation to
revoke Bunch's PSL status and compel him to serve an eighteen-month prison
term. On December 18, 2019, a two-member Board panel affirmed the hearing
officer's findings. Bunch filed an administrative appeal and on May 27, 2020,
the full Board issued its final agency decision affirming the parole revocation
decision.
III.
On appeal, Bunch raises the following contentions for our consideration:
POINT I
THE BOARD PANEL FAILED TO CONSDIDER
MATERIAL FACTS AND FAILED TO DOCUMENT
THAT CLEAR AND CONVINCING EVIDENCE
INDICATED THAT MR. BUNCH HAS SERIOUSLY
OR PERSISTENTLY VIOLATED THE
CONDITIONS OF PAROLE.
POINT II
THE BOARD FAILED TO DEMONSTRATE THAT
REVOCATION OF PAROLE IS DESIRABLE.
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POINT III
THE BOARD PANELS' DECISION IS CONTRARY
TO WRITTEN BOARD POLICY OR PROCEDURE.
In addition, Bunch raises the following argument in his reply brief:
POINT I
APPELLANT'S PRIOR VIOLATIONS SHOULD NOT
BE CONSIDERED HERE.
IV.
We find insufficient merit in these arguments to warrant further discussion
in a written opinion. R. 2:11-3(e)(1)(E). We add only the following few
comments.
Our standard of review is deferential to the Board, and we are limited to
evaluating whether the Board acted arbitrarily or abused its discretion. In re
Vey, 272 N.J. Super. 199, 205-06 (App. Div. 1993). "The question for a
[reviewing] court is '"whether the findings made could reasonably have been
reached on sufficient credible evidence present in the record," considering "the
proofs as a whole," with due regard to the opportunity of the one who heard the
witnesses to judge of their credibility.'" Hobson v. N.J. State Parole Bd., 435
N.J. Super. 377, 388 (App. Div. 2014) (quoting Close v. Kordulak Bros., 44 N.J.
589, 599 (1965)). The burden is on the challenging party to show the Board's
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actions were arbitrary, unreasonable, or capricious. Bowden v. Bayside State
Prison, 268 N.J. Super. 301, 304 (App. Div. 1993). Bunch fails to sustain that
burden here.
Although most parole actions require only a preponderance of the
evidence, revocation of parole must be supported by clear and convincing
evidence. N.J.A.C. 10A:71-7.12(c)(1); N.J.A.C. 10A:71-7.15(c). Clear and
convincing evidence persuades the fact finder "that the truth of the contention is
'highly probable.'" Hobson, 435 N.J. Super. at 387 (quoting In re Perskie, 207
N.J. 275, 290 (2011)). The evidence 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) (quoting In re Seaman, 133 N.J.
67, 74 (1993)). "Implicit in that standard is a court's obligation to reverse where
the evidence, viewed in the light most favorable to the agency's decision, is
inadequate to meet the standard of proof." Hobson, 435 N.J. Super. at 388.
The Board should only revoke parole for serious and persistent violations
of parole. N.J.A.C. 10A:71-7.12(a)(1); see also Hobson, 435 N.J. Super. at
391 ("Absent [a] conviction of a crime, the Board has [revocation] authority
only if the parolee 'has seriously or persistently violated the conditions of his
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parole.'" (quoting N.J.S.A. 30:4-123.60)). Further, the Board must determine
"[w]hether [the] revocation of parole is desirable." N.J.A.C. 10A:71-7.12(c)(2).
In Hobson, we noted, "[t]he Legislature did not further define the type of
conduct it intended to capture within the statutory standard - 'seriously or
persistently violated.' And the Board has not adopted a regulation to guide
exercise of its expertise to distinguish cases in which parole should and should
not be revoked." 435 N.J. Super. at 382. Accordingly, this determination falls
to the Board's "highly predictive and individualized discretionary
appraisals." Acoli v. N.J. State Parole Bd., 224 N.J. 213, 222
(2016) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)).
Additionally, the relaxed rules of evidence governing an administrative
hearing apply to a parole revocation hearing. Jamgochian v. N.J. State Parole
Bd., 196 N.J. 222, 250 (2008); see also N.J.S.A. 52:14B-10(a)(1) (providing
that "parties shall not be bound by rules of evidence" and "[a]ll relevant evidence
is admissible"). Accordingly, "hearsay evidence will be admissible, subject to
the sound discretion of the Parole Board." Jamgochian, 196 N.J. at250 (citing N.J.A.C. 1:1-15.5).
Here, there is clear and convincing evidence Bunch violated the
conditions of his parole. Specifically, the Board required Bunch to successfully
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complete the PROMISE program, following a fairly recent violation of PSL
conditions. Bunch conceded he did not fulfill this obligation. Further, as the
hearing officer determined, Bunch was afforded an opportunity to remain in the
program but "failed to take advantage of the opportunities provided to him."
We also find no support in the record for Bunch's claim the Board failed
to consider that his violation of the conditions of his parole was not serious.
Following its thorough review of this matter, the Board determined the parole
violation was serious, see N.J.A.C. 10A:71-7.12(c)(1), and that parole
revocation was desirable, see N.J.A.C. 10A:71-7.12(c)(2), because Bunch failed
to successfully complete PROMISE after being afforded multiple opportunities
to comply with the program's rules. We are convinced the Board's findings are
supported by "'sufficient credible evidence present in the record' considering 'the
proofs as a whole,'" In re Taylor, 158 N.J. 644, 656 (1999) (quoting Close, 44
N.J. at 599), and Bunch otherwise fails to sustain his "burden of showing" the
Board's decision is "arbitrary, unreasonable or capricious," McGowan v. N.J.
State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002).
Finally, Bunch unpersuasively argues the Board's decision was contrary
to written Board policy and procedure because he was not given a probable cause
hearing within fourteen days of being taken into custody on the parole violation .
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N.J.A.C. 10A:71-7.5(a). The record reflects Bunch requested representation by
counsel and waived his right to have his hearing conducted within the fourteen-
day timeframe "pending the assignment of counsel." Moreover, as we have
stated, Bunch waived the probable cause hearing and opted to proceed directly
to the final revocation hearing. Accordingly, we find no due process violation
or violation of N.J.A.C. 10A:71-7.5(a).
Affirmed.
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