"Absent [a] conviction of a crime, the Board has [revocation] authority only if the parolee 'has seriously or persistently violated the conditions of his parole.'"
How later courts described this case
- "Absent [a] conviction of a crime, the Board has [revocation] authority only if the parolee 'has seriously or persistently violated the conditions of his parole.'"
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION WITHOUT THE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-2946-22
ROBERT SHEARRIN,
Appellant,
v.
NEW JERSEY STATE
PAROLE BOARD,
Respondent.
________________________
Argued June 5, 2024 – Decided August 9, 2024
Before Judges Susswein and Vanek.
On appeal from the New Jersey State Parole Board.
Andrew M. Epstein argued the cause for appellant
(Wilson, Elser, Moskowitz, Edelman & Dicker LLP,
attorneys; Andrew M. Epstein, on the briefs).
Dorothy M. Rodriguez, Deputy Attorney General,
argued the cause for respondent (Matthew J. Platkin,
Attorney General, attorney; Janet Greenberg Cohen,
Assistant Attorney General, of counsel; Dorothy M.
Rodriquez, on the brief).
PER CURIAM
Appellant Robert Shearrin appeals from the April 26, 2023 final agency
decision by the State Parole Board (Board) revoking his parole and imposing an
eighteen-month State Prison term. This is the latest in a series of parole
revocations for Shearrin, who is subject to Parole Supervision for Life (PSL).
After carefully considering the record in light of the governing legal principles
and arguments of the parties, we affirm.
I.
We discern the following procedural history and pertinent facts from the
record.1 On February 9, 2006, twenty-year-old Shearrin pled guilty to having
sex with a minor under sixteen years old in violation of N.J.S.A. 2C:14-2(c)(4).
The victim was fifteen years old. On June 9, 2006, Shearrin was sentenced to a
three-year prison term and PSL. On February 27, 2007, he was released from
prison and parole supervision commenced.
In March 2009, Shearrin's parole was revoked for absconding, and he was
returned to prison to serve a twelve-month term. In September 2011, his parole
was again revoked for absconding, and he was ordered to serve a fourteen-month
term of imprisonment.
1
As we discuss in Section IV, infra, we limit our review to the facts adduced at
the parole revocation hearing and the documents considered by the hearing
officer, Board Panel, and Board.
A-2946-22
2
In 2015, Shearrin violated his residency requirements and used marijuana.
His parole was continued with an added condition that he complete a drug
counseling program. In February 2017, he violated parole by not completing
the program. Parole was revoked and he was ordered to serve a sixteen-month
term of imprisonment.
That brings us to the violations at issue in this appeal. In September 2022,
thirty-seven-year-old Shearrin met a female minor, N.T., 2 on a bus. N.T.
provided a false name and claimed she was nineteen years old. They began a
relationship and saw each other about seven times.
On October 5, 2022, Shearrin underwent a medical procedure. He
testified that after his procedure, N.T. took him back to the shelter where he was
residing. He did not return to the shelter before his curfew. He testified he was
denied entry because he was late. Shearrin admitted to paying for a motel room
and spending the night with N.T. He also admitted to having oral sex with N.T.
that night but denied having vaginal sex.
On October 6, 2022, Shearrin and N.T. were arrested for shoplifting at a
mall. N.T. identified herself to police using the same false name she had
provided to Shearrin and falsely indicated her date of birth was April 19, 2003.
2
We use initials to protect the victim's privacy. See R. 1:38-3.
A-2946-22
3
Police later discovered her true identity and birthdate, revealing she was
seventeen years old.
On October 17, 2022, Shearrin was given a notice of probable cause
hearing for the following violations: failure to reside at a residence approved
by the parole officer; failure to refrain from initiating, establishing or
maintaining contact with any minor; failure to refrain from attempting to initiate,
establish or maintain contact with any minor; and failure to refrain from residing
with any minor without prior approval from the parole officer.
On January 18, 2023, Shearrin appeared with counsel before Hearing
Officer Rebecca Shea and pled guilty to all four violations "with an
explanation." The hearing proceeded to determine whether parole should be
revoked based on the admitted PSL violations.
Shearrin's daughter's mother, Cassandra Clark, testified that N.T. told her
the same false name she had given to Shearrin and also told Clark that she was
nineteen years old. Shearrin's mother issued a statement for review also
indicating that N.T. identified herself as a nineteen-year-old.
On January 25, 2023, Shea issued a hearing summary and recommended
Shearrin's parole be revoked and the imposition of an eighteen-month term of
imprisonment. Shea's summary provides in pertinent part:
A-2946-22
4
It is the opinion of this hearing officer that [Shearrin's]
violations are serious and revocation is desirable.
[Shearrin] was initially convicted of [s]exual [a]ssault,
second degree, after it was discovered that he was
having a sexual relationship with the [fifteen]-year-old
victim. [Shearrin] was released to supervision and did
have periods of compliance. However, it was found
that [he] was again engaging in a sexual relationship
with a minor. [Shearrin] failed to reside at his approved
residence and failed to refrain from residing with a
minor, as he admitted to paying for a motel room to stay
with N.T. Further, [Shearrin] failed to refrain from
initiating contact with a minor and failed to refrain from
contact with a minor. While it is alleged that N.T. lied
about her age, the fact remains that [Shearrin] was
consorting with a minor and engaging in sexual
relations with same, which is a clear violation of
supervision. [Shearrin] was aware of the terms of his
supervision and should have done more to ensure his
compliance, especially given his commitment offense
and subsequent incarceration. It is this hearing officer's
opinion that [Shearrin] is a danger to the community
and not amenable for community supervision at this
time.
Accordingly, this [h]earing [o]fficer recommends that
[Shearrin 's] PSL supervision status be revoked and that
he be directed to serve an eighteen [] month term of
incarceration.
On February 1, 2023, a Board Panel reviewed Shea's summary and agreed
that Shearrin's violations were serious, and that revocation was appropriate.
In its April 26, 2023 final agency decision, the Board found:
[D]uring [Shearrin's] January [18], 2023 revocation
hearing, [Shearrin's attorney] on [Shearrin's] behalf
A-2946-22
5
admitted that [he] failed to: reside overnight at a
residence approved by the assigned parole officer as
evidenced by [Shearrin] admitting to paying for a room
at an unknown location to stay with (N.T.); failed to
refrain from initiating, establishing or maintaining
contact with any minor; and failed to refrain from
attempting to initiate, establish or maintain contact with
any minor, as evidenced by incident report 1-2022-
020414, incident report 1-2022-020427, both obtained
from Millburn PD of [Shearrin] being detained with
(N.T. DOB [XX-XX-XXXX]), voluntary statement
admitting that he spent a night with (N.T.) at an
unknown location and paying for a room for the both of
[Shearrin] and (N.T.) to stay, photo #1 of [Shearrin]
shooting a video on Wednesday September 28, 2022, of
(N.T.), photo #2 of him taking a picture of (N.T.) who
appear[ed] to be sleeping/napping on the bus on
October 8, 2022 at 11:53 [p.m.], photo #3 of (N.T.)
taking a picture of herself on October 4, 2022, at 9:19
[p.m.] and photo #4, a picture [Shearrin] took on
October 6, 2022, at 2:40 [a.m.] at an unknown location
with (N.T.) sleeping in the background and a pregnancy
stick showing not pregnant; and failed to refrain from
residing with any minor without the prior approval of
the assigned parole officer, as evidenced by [Shearrin's]
voluntary statement [] dated October 11, 2022, photo
#4 a picture [Shearrin] took on October 6, 2022, at 2:40
[a.m.] at an unknown location with (N.T.) sleeping in
the background and a pregnancy stick showing not
pregnant, which was past [Shearrin]'s curfew at the . . .
shelter.
The Board reviewed the evidence and Shearrin's explanations, noting his
"statements and evidence in mitigation of the cited violations were noted in the
A-2946-22
6
Revocation Hearing Summary and were considered by the Board Panel." Based
on the foregoing findings, the Board concluded:
[Shearrin] was released to supervision and did have
periods of compliance. However, it was discovered that
he was engaging in a sexual relationship with a minor.
[Shearrin] failed to reside overnight at his approved
residence and failed to refrain from residing with a
minor, as [Shearrin] admitted to paying for a motel
room to reside overnight with a minor. The Board
concurs with the Board [P]anel's finding that
[Shearrin's] noncompliance during this term of
supervision appears to be similar to the conduct he
demonstrated in his commitment offense and that
[Shearrin's] noncompliant conduct indicates that he is
not amenable to supervision at this time.
Based upon consideration of the facts cited above, the
Board finds that the Board [P]anel has fully
documented and supported its decision pursuant to
N.J.A.C. 10A:71-7.18(b). Additionally, in assessing
[Shearrin 's] case, the Board concurs with the
determination of the Board [P]anel that clear and
convincing evidence exists that [Shearrin] has seriously
violated the conditions of his [PSL] status and
revocation is desirable. Accordingly, the Board affirms
the Board [P]anel's February 1, 2023 decision to revoke
[Shearrin's] [PSL] status and direct [Shearrin] to serve
an eighteen [] month term of incarceration.
This appeal follows. Shearrin raises the following contention for our
consideration:
THE PAROLE BOARD'S DECISION TO REVOKE
[APPELLANT'S] PAROLE AND IMPOSE A TERM
OF INCARCERATION SHOULD BE REVERSED
A-2946-22
7
BECAUSE THAT DECISION WAS ARBITRARY,
CAPRICIOUS AND UNREASONABLE, AND NOT
SUPPORTED BY SUBSTANTIAL CREDIBLE
EVIDENCE.
He raises the following additional contentions in his reply brief:
POINT I
THE DOCUMENTS WHICH RESPONDENT
SUBMITTED IN ITS APPENDICES WHICH WERE
NOT PART OF THE AGENCY RECORD SHOULD
NOT BE CONSIDERED BY THE COURT IN THIS
APPEAL.
POINT II
IN THE EVENT THAT THE COURT CHOOSES TO
CONS[I]DER THE DOCUMENTS RESPONDENT
SUBMITTED WHICH WERE NOT PART OF THE
AGENCY RECORD, THOSE DOCUMENTS
SHOULD NOT PRECLUDE REVERSAL OF THE
AGENCY'S FINAL DECISION.
POINT III
THE FINAL AGENCY DECISION SHOULD BE
REVERSED AS ARBITRARY, CAPRICIOUS AND
UNREASONABLE, AS NOT SUPPORTED BY
SUBSTANTIAL CREDIBLE EVIDENCE IN THE
AGENCY RECORD, AND AS VIOLATIVE OF
LEGISLATIVE POLICY.
II.
We preface our analysis by acknowledging the legal principles governing
this appeal. The scope of our review is narrow. Our standard of review is
A-2946-22
8
deferential to the Board, and we are limited to evaluating whether it 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 actions were arbitrary, unreasonable,
or capricious. Bowden v. Bayside State Prison (Dep't of Corr.), 268 N.J. Super.
301, 304 (App. Div. 1993).
Although most Parole Board actions require proof by 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); see 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)). "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." Id. at 388.
A-2946-22
9
Furthermore, the Board may revoke parole only for serious or persistent
violations. N.J.A.C. 10A:71-7.12(c)(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 parole.'")
(quoting N.J.S.A. 30:4-123.60). The Board must also 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, we presume this fact -
sensitive determination is accorded deference consistent with the Board's
recognized expertise in making "'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)).
III.
We next apply these foundational legal principles to the matter before us.
Shearrin argues the Board's "decision to revoke [his] parole and impose a term
of incarceration should be reversed because that decision was arbitrary,
A-2946-22
10
capricious and unreasonable, and not supported by substantial credible
evidence." We disagree. As Shea noted, Shearrin was once again engaging in
sexual relations with a minor, in clear violation of his PSL conditions. The
Board Panel agreed that the violation was serious and revocation desirable. The
Board concurred, noting Shearrin's latest PSL noncompliance "appears to be
similar to the conduct he demonstrated in his commitment offense," indicating
that "he is not amenable to supervision at this time." The Board also noted that
the Board Panel's decision was fully documented and supported as required by
N.J.A.C. 10A:71-7.18(b). Given the deferential standard of our review, we have
no basis upon which to substitute our judgment for the Board's judgmen t with
respect to the seriousness of Shearrin's latest violations or the desirability of
revoking parole and returning him to prison for a prescribed term.
Shearrin challenges the characterization that his noncompliant behavior is
"repetitive." The record amply shows, however, he committed persistent
violations of the same nature.
Shearrin also contends it was inappropriate to base revocation in part on
his failure to return to his assigned residence since his curfew violation was the
result of a medical issue. We are unpersuaded by Shearrin's contention that
revoking parole based in part on the residency violation violates public policy.
A-2946-22
11
Nor are we persuaded that revocation violates public policy because N.T.
affirmatively misled Shearrin regarding her age. Cf., N.J.S.A. 2C:14-5(c) ("It
shall be no defense to a prosecution for a crime under this chapter that the actor
believed the victim to be above the age stated for the offense, even if such a
mistaken belief was reasonable."). We are satisfied the policy of protecting
public safety by enforcing PSL conditions is well served in this case by revoking
Shearrin's parole.
In sum, we conclude the Board acted neither arbitrarily nor capriciously
in determining the present violations were serious, and that revoking Shearrin's
parole status and returning him to prison was appropriate. See N.J.A.C. 10A:71-
7.12(c). The Board's findings and conclusion are amply supported by credible
evidence in the record. See Hobson, 435 N.J. Super. at 388.
IV.
Finally, we need only briefly address Shearrin's contention that the
Attorney General included documents in its response brief's appendix that are
not part of the agency record. It is well-settled that "[a]ppellate courts can
consider a case only to the point at which it had been unfolded below." Scott v.
Salerno, 297 N.J. Super. 437, 447 (App. Div. 1997). Accordingly, "appellate
review is confined to the record made in the trial court, and appellate courts will
A-2946-22
12
not consider evidence submitted on appeal that was not in the record before the
trial court." Ibid. (internal quotations omitted). We apply that principle to the
present appeal from a final agency decision.
Although Shearrin did not move to strike the Attorney General's appendix,
in light of his contention, on our review we considered only testimony adduced
at the revocation hearing and materials relied on in the hearing officer's
summary, the Board Panel's decision, and the Board's final agency decision.
Affirmed.
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