MICHAEL WOOD VS. NEW JERSEY STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-1692-18T1
MICHAEL WOOD,
Appellant,
v.
NEW JERSEY STATE
PAROLE BOARD,
Respondent.
______________________
Submitted February 24, 2020 – Decided May 7, 2020
Before Judges Fasciale and Moynihan.
On appeal from the New Jersey State Parole Board.
Michael Wood, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Sookie Bae, Assistant Attorney General, of
counsel; Christopher C. Josephson, Deputy Attorney
General, on the brief).
PER CURIAM
Appellant Michael Wood was serving a ten-year term—subject to parole
supervision for life (PSL), N.J.S.A. 2C:43-6.4, and five years of mandatory
parole supervision (MS) under the No Early Release Act (NERA), N.J.S.A.
2C:43-7.2(c)—for first-degree aggravated sexual assault of a helpless or
incapacitated victim, N.J.S.A. 2C:14-2(a)(7). He appeals from respondent New
Jersey State Parole Board's (Board) final decision affirming a two-member
Board panel's decision to revoke his PSL and MS status and impose a fourteen-
month future eligibility term (FET), arguing:
[POINT I]
THE PAROLE BOARD'S DECISION TO REVOKE
. . . WOOD'S MANDATORY SUPERVISION WAS
CONTRARY TO WRITTEN BOARD POLICY.
[POINT II]
THE DECISION TO REVOKE . . . WOOD'S
MANDATORY SUPERVISION AND PSL IS IN
CONTRAVENTION TO THE UNITED STATES
CONSTITUTION'S 5TH AMENDMENT
PROTECTION AGAINST DOUBLE JEOPARDY.
[POINT III]
THE BOARD PANEL DENIED . . . WOOD HIS
RIGHT TO PROCEDURAL DUE PROCESS DUE TO
THE BOARD PANEL'S VIOLATION OF WRITTEN
BOARD POLICY BY FAILING TO PROVIDE A
BOARD REPRESENTATIVE TO AID HIM
THROUGHOUT HIS HEARING(S).
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We find no merit to these arguments and affirm.
Less than six months after Wood was released from custody in February
2018,1 he admitted to the use of cocaine and alcohol; his use was later confirmed
by a laboratory test. He, nonetheless, maintained his parole status with an added
condition that he attend increased outpatient drug counseling. The next month,
after receiving telephonic notification that Wood missed two counseling
sessions, parole officers conducted a home visit during which Wood refused to
provide a urine sample for prohibited-substance testing; he later refused again
at the parole district office. A parole warrant was issued and Wood was charged
with violating: PSL and MS Condition #12 for testing positive for and admitting
cocaine use; PSL Condition #15 and MS Condition #16 for refusing to submit
to drug and alcohol testing; and a violation of a special condition for testing
positive for cocaine use and admitting alcohol use.
After hearing testimony from the parole officer and Wood at a violation
hearing—at which Wood pleaded guilty to all violations with an explanation,
and admitted that when he refused to submit a urine sample he was "definitely
1
Wood had earlier been granted parole, but parole was revoked in April 2017
for violations, including residency violations, drug use, alcohol use, and
possession of a cellphone with an active social networking application. He
served a twelve-month term before his release that relates to this appeal.
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dirty"—the hearing officer found clear and convincing evidence sustaining all
violations and recommended revocation of PSL and MS and the imposition of a
fourteen month FET on each.
The two-member panel found that Wood's commission of the violations
was "serious" and that revocation was desirable in light of the numerous
infractions, including use of alcohol which "was a factor in both [of Wood's]
prior supervision violations" and the aggravated sexual assault. The panel
determined Wood was "not amenable to supervision and a possible danger to the
community." The Board affirmed the panel's revocation and FET.
Contrary to Wood's argument, that decision did not violate Board policy.
Wood's argument grafts language from N.J.S.A. 30:4-123.60(b) which provides:
"Any parolee who has seriously or persistently violated the conditions of his
parole, may have his parole revoked and may be returned to custody pursuant to
sections 18 and 19 of P.L. 1979, c. 441 (C. 30:4-123.62 and 30:4-123.63)." The
Legislature, however, provided a different standard for PSL parolees.
N.J.S.A. 30:4-123.51b(c) provides: "If the parolee violates a condition of a
special sentence of parole supervision for life, the parolee shall be subject to the
provisions of sections 16 through 19 and 21 of P.L. 1979, c. 441 (C. 30:4-123.60
through 30:4-123.63 and 30:4-123.65), and may be returned to prison." The
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Legislature, by the plain language of the statutes, intended to vest the Board
with authority to return a PSL parolee for any violation, not just serious and
persistent violations. See Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 553
(2009) (noting that, when interpreting a statute, a court "look[s] first to the plain
language of the statute, seeking further guidance only to the extent that the
Legislature's intent cannot be derived from the words that it has chosen."
(quoting Pizzullo v. N.J. Mfrs. Ins. Co., 196 N.J. 251, 264 (2008))).
N.J.S.A. 2C:43-7.2(c)—the NERA statute—provides:
During the term of parole supervision the defendant
shall remain in release status in the community in the
legal custody of the Commissioner of the Department
of Corrections and shall be supervised by the . . . Board
as if on parole and shall be subject to the provisions and
conditions of section 3 of P.L. 1997, c. 117 (C. 30:4-
123.51b).
Thus, a
board panel shall have the authority, in accordance with
the procedures and standards set forth in sections 15
through 21 of P.L. 1979, c. 441 (C. 30:4-123.59 through
30:4-123.65), to revoke the person’s release status and
return the person to custody for the remainder of the
term or until it is determined, in accordance with
regulations adopted by the board, that the person is
again eligible for release consideration pursuant to
section 9 of P.L. 1979, c. 441 (C. 30:4-123.53).
[N.J.S.A. 30:4-123.51b(a).]
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That is, MS parole may be revoked if the parolee "seriously or persistently
violated the conditions of his parole[.]" N.J.S.A. 30:4-123.60(b).
In that our limited standard of review allows us to "overturn the . . .
Board's decisions only if they are arbitrary and capricious," Trantino v. N.J.
State Parole Bd. (Trantino V), 166 N.J. 113, 201 (2001) (Baime, J., dissenting),
we conclude the Board's decision that Wood's infractions were "serious" are
supported by a preponderance of the evidence in the record, see Kosmin v. N.J.
State Parole Bd., 363 N.J. Super. 28, 41-42 (App. Div. 2003), and is thus a
proper exercise of its "discretionary assessment[] of a multiplicity of
imponderables[,]" Trantino V, 166 N.J. at 201 (Baime, J., dissenting) (quoting
Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 10 (1979)).
"To a greater degree than is the case with other administrative agencies, the . . .
Board's decision-making function involves individualized discretionary
appraisals." Ibid. (Baime, J., dissenting).
Wood's continued violations of the conditions of MS and PSL, starting
with his original release which was revoked, and continuing despite being given
the opportunity to address his substance abuse through outpatient counseling
after using drugs and alcohol shortly after his most recent release, evidence his
inability to take advantage of his parole status. The Board's determination that
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that inability posed a danger to the community is well supported, especially
considering that alcohol was a factor in Wood's commission of the aggravated
sexual assault. We will not second-guess the Board's application of its
considerable expertise in sustaining the panel's determinations. See, e.g., In re
Vey, 272 N.J. Super. 199, 205-06 (App. Div. 1993), aff'd, 135 N.J. 306 (1994).
We also reject Wood's argument that the revocation of PSL and MS for
the same offenses violates the double jeopardy clause of the federal and state
constitutions. Our Supreme Court's holding in State v. Black, 153 N.J. 438
(1998), is applicable notwithstanding Wood's argument that it is inapposite
because both parole statuses were revoked for the same conduct. Both PSL and
MS are, obviously, parole statuses. The revocation of each "is remedial and
rehabilitative in both its essential purpose and its essential effect. Thus, it
cannot be viewed as punishment triggering the protections against double
jeopardy of the state and federal constitutions. Parole revocation is not, as
defendant asserts, primarily designed to punish parole violators." Id. at 451. In
fact, the Black Court sanctioned parole revocation and prosecution for the same
conduct that supported both the parole decision and the criminal charge of
absconding from parole, N.J.S.A. 2C:29-5(b). 153 N.J. at 451-54.
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Wood mentions in his merits brief our observation in Balagun v. N.J. Dep't
of Corr., where we "noted that double jeopardy considerations may have
application in some prison discipline situations." 361 N.J. Super. 199, 206 (App.
Div. 2003). We continued:
Apart from federal and state constitutional protections,
we are "duty-bound to insure that administrative
proceedings are conducted in accordance with common
notions of fundamental fairness." We have also
previously recognized that "there may arise cases in
which it would be fundamentally unfair to permit
repeated disciplinary prosecutions and sanctions for the
same offense or conduct."
[Ibid. (citation omitted) (quoting Russo v. N.J. Dep't of
Corr., 324 N.J. Super. 576, 585-86 (App. Div. 1999)).]
Our concern in Balagun was that the parolee may have been found guilty on one
occasion for possession of "security threat group materials" and, after the
material were "inexplicably returned to him," was found guilty eight months
later of possession of some of the returned materials. Id. at 204. That
circumstance—where "it would be fundamentally unfair to sanction a prisoner
twice for possessing the same identical contraband that the prison should have
confiscated after the first disciplinary proceeding," id. at 206—is not present
here where the violations that formed the basis for Wood's revocation took place
on different dates and involved disparate actions. We also note Wood did not
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receive an FET for each violation; the fourteen-month term covered both
revocations.
We determine Wood's remaining arguments, including that he "was
denied the basic aid of a [B]oard representative" at his hearings, to be without
sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). We agree with the
Board's finding that the hearing officer advised Wood of his right to counsel,
and that Wood waived that right. That decision is supported by credible
evidence. R. 2:11-3(e)(1)(D). Wood signed an "Application for Attorney" form
that explained how counsel may have been of assistance, indicating he did "not
wish to apply for an attorney to be appointed to represent [him]."
Affirmed.
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