Opinion
DOCKET NO. A-2129-14T3 DOCKET NO. A-2131-14T3 DOCKET NO. A-2132-14T3
07-05-2016
PHILIP A. SAPIO, Plaintiff-Appellant, v. EVELYN DAVIS AS ADMINISTRATOR and THE NEW JERSEY STATE PAROLE BOARD, Defendants-Respondents. ALEXANDER MARCOVICI, Plaintiff-Appellant, v. EVELYN DAVIS AS ADMINISTRATOR and THE NEW JERSEY STATE PAROLE BOARD, Defendants-Respondents. DOUGLAS DRIFT, Plaintiff-Appellant, v. EVELYN DAVIS AS ADMINISTRATOR, THE NEW JERSEY STATE PAROLE BOARD, ANGEL SANTIAGO and GARY M. LANIGAN, Defendants-Respondents.
Michael C. Woyce argued the cause for appellants (Murphy & Woyce, attorneys; Mr. Woyce and Joseph S. Murray, on the briefs). Christopher C. Josephson, Deputy Attorney General, argued the cause for respondents (Robert Lougy, Acting Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Mr. Josephson, on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Fasciale, and Higbee. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket Nos. L-1691-14, L-1687-14 and L-1746-14. Michael C. Woyce argued the cause for appellants (Murphy & Woyce, attorneys; Mr. Woyce and Joseph S. Murray, on the briefs). Christopher C. Josephson, Deputy Attorney General, argued the cause for respondents (Robert Lougy, Acting Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Mr. Josephson, on the briefs). PER CURIAM
Plaintiffs Philip Sapio, Alexander Marcovici, and Douglas Drift separately filed complaints seeking a writ of habeas corpus against defendants Evelyn Davis, the Administrator of the Central Reception and Assignment Facility in Trenton (the Assignment Facility) and the New Jersey State Parole Board (the Board), Drift also added Angel Santiago, the Administrator of the Garden State Youth Correctional Facility in Yardville, and Gary M. Lanigan, the Commissioner of the Department of Corrections, as defendants. Plaintiffs attack their confinement and detention pending administrative enforcement of provisions governing violation of parole supervision for life (PSL) pursuant to N.J.S.A. 2C:43-6.4 and the regulations promulgated thereunder. Plaintiffs also seek declaratory relief holding the parole revocation procedures set forth in N.J.S.A. 2C:43-6.4 are unconstitutional. The Law Division considered the matters together during one hearing. The judge dismissed Sapio's and Marcovici's complaints as moot and rejected Drift's constitutional challenges. Plaintiffs appeal from three Law Division orders, filed on November 20, 2014, dismissing their respective complaints. The separate appeals, which present the same legal challenges, are consolidated for the purpose of addressing the issues in a single opinion.
For the reasons stated in our opinion, we affirm the denial of the habeas corpus requests of all three plaintiffs. However, we reverse the orders dismissing as moot Sapio's and Marcovici's declaratory judgment attacks on certain provisions of the PSL statute. Examining the constitutional challenge by all three plaintiffs, we reject as unfounded the assertion plaintiffs were charged with a new criminal offense without due process. Although a violation of PSL may be prosecuted as a criminal offense pursuant to N.J.S.A. 2C:43-6.4(d), here plaintiffs' alleged volatile conduct was processed as parole violations under N.J.S.A. 2C:43-6.4(b). We conclude the Board's use of N.J.S.A. 2C:43-6.4(b) to charge and adjudicate a violation of the conditions of PSL does not require bail or a jury trial and the conduct may be administratively reviewed. Accordingly, we affirm.
I.
We briefly describe the factual and procedural circumstances surrounding each plaintiff's action. Thereafter, we recite the statutory and other provisions applicable to these appeals. In our review, as necessary, we will address any issues related to an individual plaintiff that may not be applicable to the others.
A. Sapio (A-2129-14)
Pursuant to a negotiated agreement, Sapio pled guilty to a single count of third-degree criminal sexual contact, N.J.S.A. 2C:14-3, and on February 9, 2007, was sentenced to time served, three years' probation, and ordered to comply with the requirements of the Community Notification Law, N.J.S.A. 2C:7-1 to -23, also known as Megan's Law and PSL.
On June 10, 2013, Sapio was arrested and charged with contempt, N.J.S.A. 2C:29-9(b), in connection with violation of a final restraining order entered pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. Following trial, he was found guilty; however, his conviction was reversed on appeal. State v. Sapio, No. A-0674-13 (App. Div. Feb. 24, 2015). On October 11, 2013, a Notice of Probable Cause Hearing was issued to determine whether Sapio violated the terms of PSL, along with a warrant for his arrest. He was placed in the Assignment Facility awaiting review. The probable cause hearing, which was held before a hearing officer, was not conducted until May 8, 2014. The hearing officer concluded a final revocation hearing was not warranted. The Adult Panel affirmed the determination and plaintiff was released on June 25, 2014, returning to PSL.
Sapio filed his complaint for habeas corpus and declaratory relief on July 10, 2014, accompanied by an order to show cause. We recite the specific relief sought, noting all three plaintiffs seek identical relief, namely: (1) immediate release and return to parole; (2) declaratory relief pronouncing the statutes for administrative review of PSL violations unconstitutional; (3) a decision maintaining a person charged with violating PSL is entitled to a public jury trial, the presumption of innocence, bail, and review by a neutral judicial arbiter, not a Board hearing officer; and (4) to enjoin the Parole Division from using the revocation process against an offender subject to PSL.
Following oral argument on the Board's motion to dismiss the complaint, the judge issued an oral opinion on November 18, 2014. She concluded Sapio's complaint was moot after the Board affirmed the hearing officer's recommendation that parole not be revoked. She was unwilling to assume the issue would arise again, noting Sapio is not presumed to again violate the conditions of PSL. The judge ordered the complaint dismissed as moot in a November 20, 2014 order.
On appeal before this court, Sapio argues:
POINT I.
THE COURT SHOULD HAVE DECLARED THAT SAPIO WAS ENTITLED TO A JURY TRIAL AS WELL AS A PUBLIC HEARING AND THE PRESUMPTION OF INNOCENCE.
POINT II.
THE SUPERIOR COURT HAS EXCLUSIVE JURISDICTION TO TRY INDICTABLE OFFENSES UNDER THE NEW JERSEY CONSTITUTION OF 1947, ART. I, PARA. 8 AND N.J. CT. R. 3:1-5(A) AND THE STATUTES ARE AN UNCONSTITUTIONAL DELEGATION UNDER THE DOCTRINE OF SEP[A]RATION OF POWERS.
POINT III.
THIS COURT HAS JURISDICTION TO REVIEW THE VALIDITY OF ANY RULE PROMULGATED BY A STATE ADMINISTRATIVE AGENCY WHERE THE INTERESTS OF JUSTICE SO REQUIRE.
POINT IV.
RESPONDENT'S MOTION TO DISMISS SHOULD BE DENIED BECAUSE SAPIO'S CHALLENGE TO THE PAROLE SUPERVISION FOR LIFE REVOCATION PROCESS IS NOT MOOT AND EVEN IF IT WAS THE COURT SHOULD ADDRESS THE ISSUES PRESENTED AS THEY ARE OF PUBLIC IMPORTANCE AND CAPABLE OF REPETITION.
B. Marcovici (A-2131-14)
Marcovici pled guilty to third-degree attempted endangering the welfare of a child, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:24-4(a), pursuant to a negotiated plea agreement. He was sentenced on May 4, 2009 to PSL and required to comply with Megan's Law. He was arrested for alleged violations of PSL on April 7, 2014, and held in the Administrative Facility pending a probable cause hearing before a hearing officer, which had not been scheduled.
While parole revocation was pending, Marcovici filed his complaint for habeas corpus and declaratory relief. Defendant moved to dismiss. In the judge's oral opinion, she found the requests for relief moot, as the parole revocation charges were withdrawn and Marcovici was released from the Administrative Facility, without a hearing, on August 17, 2014, and returned to PSL.
On appeal, Marcovici argues:
POINT I.
THE COURT SHOULD HAVE DECLARED THAT MARCOVICI WAS ENTITLED TO A JURY TRIAL AS WELL AS A PUBLIC HEARING AND THE PRESUMPTION OF INNOCENCE.
POINT II.
THE SUPERIOR COURT HAS EXCLUSIVE JURISDICTION TO TRY INDICTABLE OFFENSES UNDER THE NEW JERSEY CONSTITUTION OF 1947, ART. I, PARA. 8 AND N.J. CT. R. 3:1-5(A) AND THE STATUTES ARE AN UNCONSTITUTIONAL DELEGATION UNDER THE DOCTRINE OF SEP[A]RATION OF POWERS.
POINT III.
THIS COURT HAS JURISDICTION TO REVIEW THE VALIDITY OF ANY RULE PROMULGATED BY A STATE ADMINISTRATIVE AGENCY WHERE THE INTERESTS OF JUSTICE SO REQUIRE.
POINT IV.
RESPONDENT'S MOTION TO DISMISS SHOULD BE DENIED BECAUSE MARCOVICI'S CHALLENGE TO THE PAROLE SUPERVISION FOR LIFE REVOCATION PROCESS IS NOT MOOT AND EVEN IF IT WAS THE COURT SHOULD ADDRESS THE ISSUES PRESENTED AS
THEY ARE OF PUBLIC IMPORTANCE AND ARE BOUND TO ARISE AGAIN.
C. Drift (A-2132-14)
Drift pled guilty to third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). He was sentenced on December 21, 2012, to a three-year suspended sentence. He was also required to comply with Megan's Law and placed on PSL. On June 2, 2014, Drift was arrested and held in the Administrative Facility pursuant to a parole board warrant for violating a special condition of PSL, when found alone in the company of minor females. Probable cause was found and a final parole revocation hearing was conducted by a hearing officer on October 10, 2014, who concluded clear and convincing evidence demonstrated Drift violated PSL. An adult panel affirmed the findings and adopted the recommended fourteen month revocation of parole on November 5, 2014. An appeal to the full Board was filed and pending when this matter was initiated. Drift was transferred to the Yardville facility to serve this additional period of confinement.
Drift also pled guilty to two accusations alleging contempt, N.J.S.A. 2C:29-9(a).
On August 1, 2014, Drift filed his verified petition for habeas corpus and declaratory relief challenging as unconstitutional the procedures followed to determine whether he violated PSL and the imposition of an additional sentence term. The judge concluded the seriousness of Drift's claims attacking the constitutionality of the PSL revocation procedures warranted review of the merits, even though his appeal of the final agency decision remained pending. Following her consideration and review, the judge rejected the constitutional challenges, denied habeas corpus and declaratory relief, and granted defendants' motion to dismiss Drift's complaint.
On appeal, Drift argues:
POINT I.
JUDGE JACOBSON ERRED IN DETERMINING THAT THE STATUTORY ENACTMENT OF PAROLE SUPERVISION FOR LIFE, CODIFIED AT N.J.S.A. 2C:43-6.4, TRUMPS THE CONSTITUTIONAL RIGHT TO A JURY TRIAL.
POINT II.
DRIFT'S CHALLENGE IS NOT JUST ABOUT THE DUE PROCESS STANDARD OF MORRISSEY V. BREWER, BUT IS ABOUT DRIFT'S RIGHT TO A JURY TRIAL WHEN CHARGED WITH A NEW CRIME.
POINT III.
THE SUPERIOR COURT HAS EXCLUSIVE JURISDICTION TO TRY INDICTABLE OFFENSES UNDER THE NEW JERSEY CONSTITUTION OF 1947, ART. I, PARA. 8 AND N.J. CT. R. 3:1-5(A).
POINT IV.
THIS COURT HAS JURISDICTION TO REVIEW THE VALIDITY OF ANY RULE PROMULGATED BY A STATE ADMINISTRATIVE AGENCY WHERE THE INTERESTS OF JUSTICE SO REQUIRE.
II.
Plaintiffs' arguments, challenging the orders dismissing their complaints, are divided into two distinct categories. The first is whether habeas corpus relief is warranted. This also includes examination of whether the requests are moot because plaintiffs have been released from custody. The second seeks a judgment declaring the PSL statute unconstitutional in part. Plaintiffs are not attacking the legislative enactment of PSL; rather, they challenge as constitutionally infirm those PSL provisions allowing implementation and use of administrative procedures when a parolee is given notice of an alleged violation of the conditions of supervision.
Each of plaintiffs' arguments presents a legal issue. As such, our "review is de novo." Kaye v. Rosefielde, 223 N.J. 218, 229 (2015) (quoting Fair Share Hous. Ctr., Inc. v. N.J. State League of Municipalities, 207 N.J. 489, 493-94 n.1 (2011)). Also, our review of an order dismissing a complaint under Rule 4:6-2(e) for failure to state a claim is de novo. Flinn v. Amboy Nat'l Bank, 436 N.J. Super. 274, 287 (App Div. 2014). Accordingly, we are not obliged to defer to the trial judge's conclusions.
A.
We start with plaintiffs' requests for habeas corpus. The writ of habeas corpus "is a common law, not a statutory, writ." State v. La Battaglia, 30 N.J. Super. 1, 3 (App. Div. 1954). Literally translated, "habeas corpus" means "you have a body" and the writ commands a public official to produce the prisoner before the court. The writ is a "high prerogative writ . . . not ordinarily issuable as a matter of right, but is permissive at the discretion of the court." Ibid.
In New Jersey, issuance of a writ of habeas corpus is guided by the New Jersey Habeas Corpus Act, N.J.S.A. 2A:67-1 to -36. "Our statute did not create the writ to prevent the injury of illegal confinement, but recognized its existence and enacted legislation with reference to it as a common law writ." La Battaglia, supra, 30 N.J. Super. at 3 (citing In re Thompson, 85 N.J. Eq. 221 (Ch. 1915)).
The statutory provisions "shall be liberally construed so as to secure, as far as possible, the liberty of the citizen." N.J.S.A. 2A:67-1. Under N.J.S.A. 2A:67-15(a) judges of the Superior Court have "[t]he power and authority to issue writs of habeas corpus." Application for the writ must be initiated by a verified complaint, alleging the necessary facts required by N.J.S.A. 2A:67-16, so the court may
inquire into the cause of the person's imprisonment or restraint, if the person is:
a. committed, detained, confined, or restrained of liberty, within this State, for a criminal or supposed criminal matter;
. . . .
c. committed, detained, confined, or restrained of liberty, within this State, under any pretense;
. . . .
[N.J.S.A. 2A:67-13.]
That said, "habeas corpus is not a writ of error or other process of review, and, therefore, is not available if the judgment is merely erroneous." La Battaglia, supra, 30 N.J. Super. at 4 (quoting In re Davis, 107 N.J. Eq. 160, 171 (Ch. 1930)). The writ is issuable in the discretion of the court and "goes only to the illegal imprisonment and does not affect the outstanding process against the petitioner." In re Garofone, 80 N.J. Super. 259, 282 (Law Div. 1963), aff'd, 42 N.J. 244 (1964).
1.
Sapio and Marcovici argue the judge erred in dismissing their complaints seeking habeas relief, concluding the issue was moot. "Mootness is a threshold justiciability determination rooted in the notion that judicial power is to be exercised only when a party is immediately threatened with harm." Betancourt v. Trinitas Hosp., 415 N.J. Super. 301, 311 (App. Div. 2010). The Court has instructed that appellate review will not entail rendering of advisory opinions or an exercise of jurisdiction "in the abstract." State v. Harvey, 176 N.J. 522, 528 (2003) (quoting State v. Gartland, 149 N.J. 456, 464 (1997)).
"An issue is 'moot' when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006). Generally, "courts should not decide cases where a judgment cannot grant relief." Marjarum v. Twp. of Hamilton, 336 N.J. Super. 85, 92 (App. Div. 2000) (quoting Cinque v. N.J. Dep't of Corr., 261 N.J. Super. 242, 243-44 (App. Div. 1993)).
However, a dispute is not moot if a party will still suffer "adverse consequences" from the decision. N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 262 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010). "Further, the New Jersey Constitution does not restrict the exercise of judicial power to actual cases and controversies." State v. McCabe, 201 N.J. 34, 44 (2010) (citing Gartland, supra, 149 N.J. at 464; N.J. Const. art. VI, § 1, ¶ 1). At times, the merits of an issue will be considered notwithstanding its mootness at the time of review. Specifically in criminal cases, the Court has held "[t]he stigma of arrest, conviction and jail sentence does not become moot simply because . . . the sentence has been served and completed." Gartland, supra, 149 N.J. at 464 (quoting Bower v. State, 135 N.J.L. 564, 568 (Sup. Ct. 1947)). The Court has decided issues that present a matter of "significant public importance," McCabe, supra, 201 N.J. at 44, or issues "likely to recur" should be considered although moot. Gartland, supra, 149 N.J. at 464.
Sapio and Marcovici invoke this principle and argue the State Constitution grants courts the authority to review their habeas corpus challenges, notwithstanding their prior release. See N.J. Const. art. VI, § 5, ¶ 4 (providing in lieu of prerogative writ actions, "review, hearing and relief shall be afforded in Superior Court, on terms and in the manner provided by the rules of the Supreme Court, as of right, except in criminal cases where such review shall be discretionary"). We are not persuaded.
We agree with the trial judge's conclusion Sapio and Marcovici's habeas corpus requests are moot, noting the relief sought cannot affect them if granted. Adopting her analysis, we find no abuse of discretion in entry of the order of dismissal.
2.
We next consider the habeas corpus challenge advanced by Drift, who remained confined during the trial proceedings through the filing of this appeal. Drift was released from custody and returned to PSL on August 1, 2015.
In Johnson v. New Jersey State Parole Board, 131 N.J. Super. 513, 515-16 (App. Div. 1974), certif. denied, 67 N.J. 94 (1975), a matter analogous to the instant appeal, the plaintiff's complaint, designated as a "Petition For Writ Of Habeas Corpus," claimed the plaintiff's "constitutional right to a prompt parole revocation hearing had been violated by defendant State Parole Board." We held
[t]he exclusive method for review of an action or inaction of the State Parole Board is by direct appeal to the Appellate Division. The Board is a state administrative agency established within the Department of Institutions and Agencies, a principal department in the executive branch of the State Government. Cf. N.J.S.A. 52:14B-2(a). As such its final decisions and actions (or inaction) are reviewable as of right by appeal to the Appellate Division, R. 2:2-3(a)(2), . . . . .
[Id. at 517.]
Drift's habeas corpus claim is actually a challenge to the Board's revocation of parole. An appeal of the Board's action is not a proper subject of a complaint for habeas corpus. Challenges to Board action generally requires an "applicant . . . appeal from the agency's action or conduct in holding the prisoner." Trantino v. N.J. State Parole Bd., 296 N.J. Super. 437, 460 (App. Div. 1997), aff'd, 154 N.J. 19 ( 1998); see also Johnson, supra, 131 N.J. Super. at 518-19 (reviewing the history of habeas corpus actions and holding review of parole action or inaction a matter for appellate review in lieu of prerogative writs). For this reason, we cannot conclude the judge's denial of habeas relief rises to an abuse of discretion. See Pressler & Verniero, Current N.J. Court Rules, cmt. 3.7.1 on R. 2:2-3 (2016) ("It is, of course, clear that procedurally, review of Parole Board action must be sought by appeal to the Appellate Division pursuant to this rule, which applies the same standard of review, whether to parole release or parole revocation, applicable to all other state agencies, that is, a standard that is not more exacting.").
B.
We take a different view of the declaratory judgment requests that challenge the constitutionality of N.J.S.A. 2C:43-6.4. We do not agree with the trial judge these claims advanced by Sapio and Marcovici were moot.
The trial judge correctly declared courts should not assume a party will engage in conduct likely to place a parolee in a position to repeat parole violations currently challenged. See, e.g., Nunes v. Decker, 480 F. App'x 173, 175 (3d Cir. 2012) (citing Honig v. Doe, 484 U.S. 305, 320, 108 S. Ct. 592, 98 L. Ed. 2d 686 (1988)). However, plaintiffs' assertions allege deprivation of liberty and denial of due process, which are questions of public importance, both from the standpoint of plaintiffs and the public at large. We conclude review is appropriate because the issues are of "significant public importance," McCabe, supra, 201 N.J. at 44-45, and "likely to recur" to similarly situated parolees, Gartland, supra, 149 N.J. at 464, thus justifying consideration of the merits. Jamgochian v. N.J. State Parole Bd., 394 N.J. Super. 517, 529 (App. Div. 2007) (stating Parole Board's imposition and suspension of parole conditions "raises issues of substantial importance that are likely to recur but evade review"), aff'd, 196 N.J. 222 (2008).
Despite being somewhat scattered in approach, plaintiffs' requests for declaratory relief arise from claims attacking, as unconstitutional, the procedures used to detain parolees following alleged violations of special parole. Specifically, plaintiffs maintain parolees charged with revocation are denied the right to bail, the presumption of innocence, review by a jury, and determination of an appropriate sentence by a judge, in favor of an administrative system where the Board adopts regulations regarding the adjudication of claimed violations, presented by parole officers, reviewed by Board hearing officers, finalized by the Board itself and which could result in a parolee's incarceration for up to eighteen months.
1.
Plaintiffs' claims challenge administrative procedures promulgated pursuant to the statutory scheme of PSL, described as a "special sentence" mandatorily imposed for conviction of certain sex offenses in addition to authorized sentences for the designated crimes. N.J.S.A. 2C:43-6.4(a). State v. Perez, 220 N.J. 423, 436-38 (2015). PSL commences upon release from incarceration and "[p]ersons serving a special sentence of parole supervision for life shall remain in the legal custody of the Commissioner of Corrections, shall be supervised by the Division of Parole of the State Parole Board" and subject to other stated statutory conditions as "appropriate to protect the public and foster rehabilitation." N.J.S.A. 2C:43-6.4(b). See J.B. v. N.J. State Parole Bd., 433 N.J. Super. 327, 336-37 (App. Div. 2013), certif. denied, 217 N.J. 296 (2014). Even when the court suspends imposition of another portion of a sentence, it "may not suspend imposition of the special sentence of [PSL]." N.J.S.A. 2C:43-6.4(b). The custodial term imposed under PSL is "deemed to be a term of life imprisonment." N.J.S.A. 2C:43-6.4(b). The Legislative design in adopting this scheme is "to protect the public from recidivism by sexual offenders." Perez, supra, 220 N.J. at 437.
In 2003, N.J.S.A. 2C:43-6.4 was amended and for the most part replaced PSL for prior references to community supervision for life. L. 2003, c. 267, § 1.
Subsection (b) adds:
If the defendant violates a condition of a special sentence of parole supervision for life, the defendant shall be subject to the provisions [in N.J.S.A. 30:4-123.60 to - 123.63 and N.J.S.A. 30:4-123.65] and for the purpose of calculating the limitation on
time served [set forth in N.J.S.A. 30:4-123.65] the custodial term imposed upon the defendant related to the special sentence of parole supervision for life shall be deemed to be a term of life imprisonment. When the court suspends the imposition of sentence on a defendant who has been convicted of any offense enumerated in subsection a. of this section, the court may not suspend imposition of the special sentence of parole supervision for life, which shall commence immediately, with the Division of Parole of the State Parole Board maintaining supervision over that defendant, including the defendant's compliance with any conditions imposed by the court pursuant to N.J.S.[A.] 2C:45-1, in accordance with the provisions of this subsection. Nothing contained in this subsection shall prevent the court from at any time proceeding under the provisions of N.J.S.[A.] 2C:45-1 through 2C:45-4 against any such defendant for a violation of any conditions imposed by the court when it suspended imposition of sentence, or prevent the Division of Parole from proceeding under the provisions of [N. J.S.A. 30:4-123.60 to -123.63 and N.J.S.A. 30:4-123.65] against any such defendant for a violation of any conditions of the special sentence of parole supervision for life, including the conditions imposed by the court pursuant to N.J.S.[A.] 2C:45-1. In any such proceeding by the Division of Parole, the provisions of [N. J.S.A. 30:4-123.51b] authorizing revocation and return to prison shall be applicable to such a defendant, notwithstanding that the defendant may not have been sentenced to or served any portion of a custodial term for conviction of an offense enumerated in subsection a. of this section.See also N.J.A.C. 10A:71-6.12(d) (imposing multiple enumerated restrictions on lives of offenders subject to the special sentence of PSL).
[N. J.S.A. 2C:43-6.4(b).]
The statute also addresses the violations of the conditions or requirements of PSL in subsection (d), stating:
A person who violates a condition of a special sentence of community supervision for life or parole supervision for life imposed pursuant to this section without good cause is guilty of a crime of the third degree. Notwithstanding any other law to the contrary, a person sentenced pursuant to this subsection shall be sentenced to a term of imprisonment, unless the court is clearly convinced that the interests of justice so far outweigh the need to deter this conduct and the interest in public safety that a sentence to imprisonment would be a manifest injustice. Nothing in this subsection shall preclude subjecting a person who violates any condition of a special sentence of parole supervision for life to the provisions of [N. J.S.A. 30:4-123.60 to -123.63 and N.J.S.A. 30:4-123.65] pursuant to the provisions of [N. J.S.A. 30:4-123.51b].
[N. J.S.A. 2C:43-6.4(d).]
N.J.S.A. 30:4-123.51b(c) outlines a parolee's status when sentenced to a term of PSL. The statute specifies a parolee "remain[s] in the legal custody of the Commissioner of Correction, . . . supervised by the Division of Parole of the State Parole Board, and . . . subject to the provisions and conditions set by the appropriate board panel in accordance with the procedures and standards set forth in [N. J.S.A. 30:4-123.59 to -.63 and -.65]." N.J.S.A. 30:4-123.51b(c). The statute further provides "[i]f the parolee violates a condition of a special sentence of parole supervision for life, the parolee . . . may be returned to prison." Ibid. Where "revocation and return to custody [is] desirable . . . the appropriate board panel shall revoke parole and return the parolee to prison for a specified length of time between 12 and 18 months." Ibid.
There is no longer doubt regarding the nature of the special sentence of PSL: "[T]he Legislature has manifested . . . PSL . . . [is] intended to be [a] penal rather than remedial post-sentence supervisory scheme[]," Perez, supra, 220 N.J. at 441, underscored by the mandate that it is imposed for life and is a provision of an original criminal sentence. State v. Schubert, 212 N.J. 295, 314 (2012) (outlining legislative history of N.J.S.A. 2C:43-6.4 and determining PSL is clearly intended to be part of the original penal sentencing regime for the listed offenses). Therefore, PSL is a special parole term lasting as long as life.
We note N.J.S.A. 2C:43.6-4(c) permits an individual to petition the court for removal from PSL requirements "upon proof by clear and convincing evidence that the person has not committed a crime for 15 years since the last conviction or release from incarceration, whichever is later, and that the person is not likely to pose a threat to the safety of others if released from parole supervision."
2.
We have no difficulty rejecting plaintiffs' arguments seeking a jury trial to consider alleged parole violations, even when they might result in custodial confinement. Also, as to plaintiffs' assertion N.J.S.A. 2C:43-6.4(d) provides a PSL violation is a third-degree crime, and therefore, a parolee must be afforded full due process protections prior to arrest and detention, we conclude the argument lacks merit.
First and foremost, "the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations." Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484, 494 (1972). In this landmark decision, the United States Supreme Court made it clear, there was "no thought to equate [a parole revocation hearing] to a criminal prosecution in any sense." Id. at 489, 92 S. Ct. at 2604, 33 L. Ed. 2d at 499.
In Morrissey, the majority held parole "[r]evocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions." Id. at 480, 92 S. Ct. at 2600, 33 L. Ed. 2d at 494. Nonetheless, due process protections attach to this more limited liberty interest. Writing for the majority, Chief Justice Warren Burger identified the following process must be provided during parole revocation proceedings to comport with due process:
(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of the evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a "neutral and detached" hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.
[Id. at 489, 92 S. Ct. at 2604, 33 L. Ed. 2d at 499.]
Applying Morrissey, the New Jersey Supreme Court has underscored the principle that because parole "deprives an individual of conditional, not absolute, liberty dependent on observance of the special parole restrictions . . . . the 'full panoply of rights' due a defendant in a criminal proceeding does not apply to parole revocations." State v. Black, 153 N.J. 438, 448-49 (1998) (quoting Morrissey, supra, 408 U.S. at 480, 92 S. Ct. at 2600, 33 L. Ed. 2d at 494). Accordingly, due process challenges to the parole revocation process have been put to rest. See Hobson v. N.J. State Parole Bd., 435 N.J. Super. 377, 382 (App. Div. 2014) (stating and thoroughly detailing how the Legislature has "codified procedures for revocation that require the Board to afford persons facing revocation of release status significant procedural protections"). Indeed, "the State has a strong interest in assuring that parolees adhere to the conditions of their parole." J.B., supra, 433 N.J. Super. at 337.
Second, plaintiffs incorrectly conflate two distinct statutory provisions. Under a previous version of N.J.S.A. 2C:43-6.4, prior to the 2003 amendments, an offender on community supervision for life (CSL) was "supervised as if on parole." L. 1994, c. 130, § 2. Any violation of one or more conditions of CSL was a fourth-degree offense. Ibid. "In other words, a violation of CSL is punishable only as a crime; the Parole Board cannot return a defendant to prison through the parole-revocation process." Perez, supra, 220 N.J. at 441. However, the 2003 statutory amendments clarified PSL is penal and a lifetime sentence of parole. This difference is significant. The statute also provided that although a PSL violation may be prosecuted as a third-degree crime, N.J.S.A. 2C:43-6.4(d), "[n]othing in this subsection shall preclude subjecting a person who violates any condition of a special sentence of parole supervision for life to" the regular parole revocation process. Accordingly,
[a] violation of PSL may be prosecuted as a[n] . . . offense, N.J.S.A. 2C:43-6.4(d), but it may also be treated as a parole violation, N.J.S.A. 2C:43-6.4(b). The State conceded at oral argument that the almost-universal practice since the enactment of the 2003 amendment is to revoke a defendant's parole and return him to prison.
[Perez, supra, 220 N.J. at 441.]
Here, plaintiffs were not charged with a new crime under N.J.S.A. 2C:43-6.4(d); they were noticed of a parole violation. Had plaintiffs been charged with a criminal offense under N.J.S.A. 2C:43-6.4(d), it would require judicial adjudication. However, parole revocation for violating parole conditions, the consequence of which may result in return to custody pursuant to N.J.S.A. 30:4-123.51b(c), is an authorized and constitutional administrative function authorized to be performed by the Board. When revoking parole, the constitutional imperative requires the Board comply with due process requirements identified in Morrissey, namely, written notice of the parole violation charges, disclosure of the evidence to be used against the parolee, an opportunity for him to be heard and to present evidence, the right to cross-examine witnesses, a neutral hearing officer or tribunal, and a written statement of reasons for the Board's decision. Morrissey, supra, 408 U.S. at 485-89, 92 S. Ct. at 2602-04, 33 L. Ed. 2d at 496-99. The necessary due process protections delineated in Morrissey are provided for in the regulations governing the parole revocation process, which applies to those sentenced to PSL. See N.J. State Parole Bd. v. Byrne, 93 N.J. 192, 208-12 (1983) (defining due process protections required in parole revocation hearings under the State Constitution).
It is further noted, "the current version of N.J.S.A. 2C:43-6.4(e) provides that an individual who commits one of the enumerated sex offenses while on PSL shall be sentenced to an extended term of imprisonment that 'shall . . . be served in its entirety prior to the person's resumption of the term of parole supervision for life.'" Perez, supra, 220 N.J. at 437-38 (alteration in original) (quoting N.J.S.A. 2C:43-6.4(e)). --------
Plaintiffs also argue parole was not subject to "a sentence that can be continued through the probation revocation process" and that return to prison for violation of the conditions of PSL equates to an imposition of additional jail time without a jury finding, in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). We disagree.
Regarding the nature of the sentence, we have explained PSL is a life parole sentence. It does not end when an offender concludes the maximum jail or probationary sentence also imposed for the criminal conviction. Moreover, the PSL portion of the sentence begins upon release from incarceration. N.J.S.A. 2C:43-6.4(b).
Turning to provisions directing administrative detention and possible return to incarceration, plaintiffs' attempt to invoke Apprendi and its progeny is misplaced.
Apprendi requires "[a]ny fact (other than a prior conviction), which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." United States v. Booker, 543 U.S. 220, 244, 125 S. Ct. 738, 756, 160 L. Ed. 2d 621, 650 (2005). Plaintiffs' argument essentially urges a judge cannot sentence a defendant to jail time beyond the statutory maximum without a requisite plea or jury finding; therefore, an executive agency could not extend a criminal defendant's period of incarceration, absent a jury's determination of the facts relating to the PSL violation. We disagree with the premise as applied to PSL. When PSL is imposed, it is part of a defendant's original sentence. Undoubtedly, PSL is an integral part of the offender's sentence, which is imposed pursuant to the court's sentencing authority, making it punitive. Perez, supra, 220 N.J. at 440. Such a sentence mandates lifetime parole supervision, which by its nature restrains a defendant's liberty and includes the possibility of incarceration if the conditions of parole release are violated. No additional facts must be established to lengthen the sentence. The facts leading to the plaintiffs' PSL requirement were established when the PSL sentence was initially imposed, making Apprendi inapposite.
In this matter, plaintiffs were lawfully sentenced to a special life sentence of PSL, which is exempt from the normal calculations limiting total time served, N.J.S.A. 30:4-123.51b(c). To suggest plaintiffs have completed their sentences and "no 'balance' remains" is not accurate. Plaintiffs' sentences following conviction required they remain in the custody of the Commissioner of Corrections, subject to the conditions of parole for life, N.J.S.A. 2C:43-6.4(b), unless they successfully satisfy the requirements and petition for release pursuant to N.J.S.A. 2C:43-6.4(c). Schubert, supra, 212 N.J. at 314.
The express PSL sentence requires each plaintiff remain subject to the consequences of a parole violation, which include possible parole revocation and return to incarceration. Therefore, the parole revocation provisions in N.J.S.A. 2C:43-6.4(b), when read in conjunction with the Parole Act, N.J.S.A. 30:4-123.59(b), along with the PSL statute and its regulations, N.J.A.C. 10A:71-6.12, do not violate required constitutional due process protections delineated in Morrissey. Therefore, any attempt to characterize parole revocation proceedings as a new crime, mandating bail and a jury trial, must fail as a matter of law.
Plaintiffs may have separate administrative challenges over whether the Board followed mandated procedures for parole revocation in each case, such as whether the probable cause hearing was timely conducted or whether unreasonable delay in finalizing the agency determination occurred. Our opinion in this matter does not evaluate the merits of such claims, which are not before us and remain subject to agency review.
3.
We also reject plaintiffs' claimed violation of the separation of powers doctrine. This doctrine is set forth in the New Jersey Constitution, as follows:
The powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution.
[N .J. Const. art. III, ¶ 1.]
We have explained
[t]he purpose of the separation of powers is to create a system of checks and balances among the three branches of government. State v. Leonardis, 73 N.J. 360, 370 (1977). It is not intended, however, to create an absolute division of powers among the three branches of government, thereby preventing cooperative action among them. Ibid. Only when the challenged statute impairs the integrity among the branches should the doctrine's effect on a branch's constitutional limits be recognized. Bullet Hole, Inc. v. Dunbar, 335 N.J. Super. 562, 574 (App. Div. 2000). We have observed that "[t]he separation of powers prevents any one branch from aggregating unchecked power,
which might lead to oppression and despotism." Ibid.
[State v. Bond, 365 N.J. Super. 430, 441 (App. Div. 2003) (second alteration in original).]
In Bond, we examined and rejected a party's challenge to the Board's promulgation of CSL regulations, N.J.A.C. 10A:71-6.11, as violating the separation of powers doctrine. Ibid. We noted the Legislature vested the Board with supervisory authority over persons subject to CSL, the predecessor to PSL, in N.J.S.A. 2C:43-6.4(b). Id. at 440. We concluded
the Legislature's use of the language "shall be supervised as if on parole" can be reasonably viewed as enabling the executive branch to promulgate rules and regulations to further this purpose. Moreover, we should take into consideration the executive's "specialized expertise" in these matters. See League of Municipalities[ v. Dep't of Cmty. Affairs], 158 N.J. [211,] 222 [(1999)].
[Id. at 442.]
Our analysis also considered the role of the Legislature in authorizing agency action, quoting the Court in Cammarata v. Essex County Park Commission, 26 N.J. 404, 410 (1958), when we stated:
[I]t is settled beyond controversy that the Legislature may enact statutes setting forth in broad design its intended aims, leaving the detailed implementation of the policy thus expressed to an administrative agency. Here, the Legislature's intent to create a policy whereby CSL would mirror the
conditions of parole is clear, and N.J.S.A. 2C:43-6.4(b) plainly comports with the principle expressed in Cammarata.
We do not determine in a factual vacuum whether a violation of the separation of powers doctrine has occurred, but instead must consider the accompanying "surroundings and objectives." A. A. Mastrangelo, [Inc. v. Comm'r of Dep't of Envtl. Prot.], 90 N.J. [666,] 683 [(1982)]; [N.J.] Guild [of Hearing Aid Dispensers v. Long], 75 N.J. [544,] 562 [(1978))]. The Legislature necessarily was fully aware of the Parole Board's supervisory scheme when it delegated authority to the Board to set forth the conditions of CSL. It follows then that defendant's argument that N.J.S.A. 2C:43-6.4(b) failed to provide the proper guidelines is unpersuasive. In our view, a reasonable interpretation of the legislative purpose behind the statute is that the Legislature took notice of a pre-existing supervisory scheme. In this context, as the State contends, the CSL conditions set forth in N.J.A.C. 10A:71-6.11 are consistent with the general parole conditions found in N.J.S.A. 30:4-123.59 and N.J.A.C. 10A:71-6.4. In short, N.J.S.A. 2C:43-6.4(b) does not constitute a violation of the separation of powers doctrine and defendant's contentions to that effect are without merit.
[Bond, supra, 365 N.J. Super. at 442-43.]
The same conclusion can be drawn following the Legislative amendments to N.J.S.A. 2C:43-6.4(b) implementing PSL. Therefore, "a reasonable interpretation of the legislative purpose behind the statute is that the Legislature took notice of a pre-existing supervisory scheme." Id. at 443. Conditions imposed for PSL under N.J.A.C. 10A:71-6.12 align with general parole conditions found in N.J.S.A. 30:4-123.59 and N.J.A.C. 10A:71-6.4. Plaintiffs' challenges are not sustainable.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION