IN THE MATTER OF THE STATE PAROLE BOARD'S FINAL DECISION TO REVOKE JOE BROWN'S MANDATORY SUPERVISION STATUS (NEW JERSEY STATE PAROLE BOARD)

NOT FOR PUBLICATION WITHOUT THE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-0075-17T3

IN THE MATTER OF THE

STATE PAROLE BOARD'S

FINAL DECISION TO REVOKE

JOE BROWN'S MANDATORY

SUPERVISION STATUS.

____________________________

Submitted April 29, 2019 – Decided May 7, 2019

Before Judges Sabatino, Mitterhoff and Susswein.

On appeal from the New Jersey State Parole Board.

Reed Smith LLP, attorneys for appellant Joe Brown

(David G. Murphy, of counsel and on the briefs). 1

Gurbir S. Grewal, Attorney General, attorney for

respondent New Jersey State Parole Board (Melissa H.

Raksa, Assistant Attorney General, of counsel; Erica R.

Heyer, Deputy Attorney General, on the brief).

PER CURIAM

1

Attorney Murphy represented appellant on appeal pro bono pursuant to

Madden v. Delran, 126 N.J. 591 (1992).

Appellant Joe Brown appeals from a final agency decision of the New

Jersey State Parole Board revoking his parole. Having reviewed the record in

light of the governing legal principles, we reverse.

In 2003, appellant was sentenced to a custodial concurrent term of 13

years for attempted murder, N.J.S.A. 2C:5-1, 2C:11-3, aggravated assault on a

police officer, N.J.S.A. 2C:12-1b(5)(a), certain persons not to have a weapon,

N.J.S.A. 2C:39-7(b), and two counts of possession of a controlled dangerous

substance ("CDS"), N.J.S.A. 2C:35-10(a)(1). After serving over a decade of this

sentence, appellant was paroled in July 2014. As of appellant's July 2014 release

to parole supervision, the most recent offense he had committed was in

September 2003. Subsequent to being released on parole, appellant did not

commit any new crimes. Appellant's maximum release date is July 2019.

Prior to his incarceration, appellant was diagnosed with mental illnesses

including schizophrenia, bipolar disorder, depression, and anxiety. While

incarcerated, appellant received medication to treat these conditions.

Inexplicably, forty-five days prior to his release, the Department of Corrections

slowly "weaned him off" these medications. Accordingly, at the time of his

release, all of his medications had been discontinued.

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Appellant then relocated to Michigan pursuant to an approval for transfer

of supervision. In Michigan, appellant resided first with his sister, and thereafter

with his girlfriend, with whom he shares a daughter.

Number 10 of the twenty general conditions of appellant's mandatory

supervision, which appellant acknowledged in writing, stated:

I am to refrain from the purchase, use, possession,

distribution or administration of any narcotic drug,

controlled dangerous substance, or controlled

substance analog as defined in N.J.S.A. 2C:35-11, or

any dangerous paraphernalia as defined in N.J.S.A.

2C:36-1 related to such substances, except as

prescribed by a physician.

It is undisputed that appellant violated this condition of his parole on eight

occasions between May 5, 2015 and October 13, 2016, by testing positive for

marijuana use. Based on these violations, the Board sought to revoke appellant's

parole, and issued a warrant for his arrest.

On October 26, 2016, the date appellant was due to surrender to Michigan

parole pending extradition to New Jersey, appellant was admitted to a Michigan

hospital for psychiatric treatment after his girlfriend discovered him in the midst

of a serious mental health crisis that involved a threat of self harm. Appellant

remained under inpatient treatment until his discharge on November 14, 2016.

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On March 9, 2017, Hearing Officer Carla M. Shabazz conducted a

mandatory supervision violation hearing. At the hearing, appellant, represented

via video-teleconferencing by pro bono counsel, admitted to the use of

marijuana on eight occasions. By way of mitigation, appellant through his

attorney indicated that after his release he struggled with mental illness,

including the circumstance that, although he had received treatment while

incarcerated, the DOC "weaned" him off his medications prior to his release.

Appellant testified that he tried to seek out programs in Michigan but was told

by his parole officer there was nothing available for him without payment. 2 It

was not until his psychiatric admission that he received sustained treatment for

his mental health disorders, including medication, one-on-one counseling,

stress/anger management, and psychiatric treatment. Appellant stated that he

felt better equipped to remain on parole now that he was receiving proper

medication.

At the time of the hearing, appellant was living with his girlfriend and

their eight-month-old daughter. He had maintained consistent employment since

living in Michigan: specifically, he worked as a full-time yard man from July

2

The only "treatment" reflected in the record is a referral to substance abuse

counseling. There is no indication that that counseling addressed appellant's

need for medication to treat his underlying mental health disorders.

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2014 to December 2015; a stocker at Meijer Grocery Store from January through

April 2016; and full time as a fork lift driver at Phillips pet food supply until the

time of his arrest. Appellant testified that he was on probation at his job prior

to his arrest and was on track to receive full-time benefits, including health

benefits, once his probationary period ended.

In closing, appellant's attorney argued that the violations were not serious

or persistent as to warrant revoking appellant's probation, especially in light of

his well-documented compliance with the remaining terms of his parole.

Moreover, counsel noted that appellant's claim that he was "self-medicating" his

significant mental health issues with marijuana was evidenced by the fact that

once appellant received appropriate medical treatment for his condition, he

successfully avoided any further marijuana use.

In response, the Parole Officer read into the record the eight dates on

which appellant violated condition #10 of his mandatory supervision. In

closing, he argued:

A review of the classification material shows that

[appellant] has a poly-substance history and considers

substance abuse to be a problem for him. He has a

lengthy criminal record which includes: theft, burglary,

robbery, other property crimes, assault, weapons and

CDS offenses. When weighed against [appellant's]

criminal record and his mental health needs, the

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violations appear serious and persistent in nature, and

revocation is recommended at this time.

Based on this evidence, Hearing Officer Shabazz concluded that "clear

and convincing evidence does exist to believe that subject committed the cited

violation. The violation is not serious and persistent as to warrant revocation

at this time." Her recommendation was that "the subject could benefit from an

opportunity in an inpatient community treatment program to address his drug

use rather than returning him to incarceration at this time."

On April 4, 2017, however, a Board Panel rejected the Hearing Officer's

findings and concluded that the violation was serious as to warrant revocation.

As its basis for so finding, the two-member panel noted that

Subject has a long violent history, including a NERA

sentence for Attempted Murder and Aggravated assault

on a Police Officer, combined with an assault on 2

Corrections Officers while in custody, raise concerns

for his parole to the street. He has failed to address his

mental health issues as evidence by his serious and

persistent use of marijuana. 3

On appeal to the full Board, the Board issued its Final Agency Decision

on July 19, 2017, upholding the decision to revoke parole. The Board's decision

3

The panel incorrectly states that appellant's criminal history includes an assault

on a police officer and a separate assault on two corrections officers. In fact,

appellant's conviction for aggravated assault on a police officer arises from an

altercation that appellant had with two corrections officers while incarcerated.

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is devoid of any analysis why it was overruling the Hearing Officer's findings

and recommendations, other than to tersely state that her decision was not

binding on the Board. The Board also denied that it was relying on appellant's

criminal history in revoking parole, alleging it was making its decision solely

based on the eight occasions on which appellant used marijuana over a two-and-

a-half year period. Despite this denial, in the penultimate paragraph of its

decision, the Board recounts in detail appellant's criminal history, which ended

in September 2003, eleven years before his release on parole. After this

recitation, the Board concludes that "upon consideration of the facts cited above,

the Board has fully supported its decision pursuant to N.J.A.C. 10A:71-7.18(b).

This appeal followed. On appeal, appellant argues that the Board

accorded undue weight to a remote criminal history, and failed to explain why

it was rejecting out-of-hand the significant mitigating factors that weighed

against revocation.

In reviewing the final decision of the Board, we start with the well-

established precept that "[a] strong presumption of reasonableness attaches to

the actions of administrative agencies." In re Vey, 272 N.J. Super. 199, 205

(App. Div.), aff'd, 135 N.J. 306 (1993). Thus, appellate courts "will reverse the

decision of the administrative agency only if it is arbitrary, capricious or

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unreasonable or it is not supported by substantial credible evidence in the record

as a whole." Henry v. Rahway St. Prison, 81 N.J. 571, 579-80 (1980) (citing

Cambell v. Dep't of Civ. Serv., 39 N.J. 556, 562 (1963)). "The question for a

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. St. Parole Bd., 435 N.J. Super. 377,

388 (App. Div. 2014) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599

(1965)). In this regard, we observe that it was Hearing Officer Shabazz alone

who had the opportunity to hear the witnesses and judge their credibility. Thus,

our normal deference is tempered by the Board's failure to consider and/or

outright rejection of Shabazz's findings of fact. Cf. H.K. v. State, 184 N.J. 367,

384 (2005); Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587-88 (1988) (finding that

when an agency head strays from the factual findings of an ALJ, we need not accord

the agency head the level of deference we ordinarily recognize in reviewing final

administrative decisions).

Moreover, our deference to agency decisions "is premised on [the court's]

confidence that there has been a careful consideration of the facts in issue and

appropriate findings addressing the critical issues in dispute." Bailey v. Bd. of

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Rev., 339 N.J. Super. 29, 33 (App. Div. 2001). If an appellate court concludes

that an agency's

finding is clearly a mistaken one and so

plainly unwarranted that the interests of

justice demand intervention and

correction, then, and only then, it should

appraise the record as if it were deciding

the matter at inception and make its own

findings and conclusions. While this

feeling of "wrongness" is difficult to

define, because it involves the reaction of

trained judges in the light of their judicial

and human experience, it can well be said

that that which must exist in the reviewing

mind is a definite conviction that the judge

went so wide of the mark, a mistake must

have been made. This sense of

"wrongness" can arise in numerous ways—

from manifest lack of inherently credible

evidence to support the finding, obvious

overlooking or underevaluation of crucial

evidence, a clearly unjust result, and many

others.

[Clowes, 109 N.J. at 588-89 (quoting State

v. Johnson, 42 N.J. 146, 162 (1964)).]

In the context of review of the Parole Board's denial or revocation of

parole, our Supreme Court has cautioned that the Board should not exercise

"selective and arbitrary reliance on only those portions of the record that could

possibly support the Board's conclusion." Trantino v. N.J. St. Parole Bd., 166

N.J. 113, 189 (2001) ("The Board failed to address, and in fact utterly

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disregarded, substantial evidence in the record, spanning many years of

infraction-free incarceration and favorable psychological evaluations, that

demonstrated Trantino's likelihood of success on parole.") (citing State in the

Interest of C.A.H. & B.A.R., 89 N.J. 326, 344 n.5 (1982)).

"A person who has been sentenced to a term of parole supervision and is

on release status in the community pursuant to [N.J.S.A. 2C:43-7.2] . . . shall be

subject to the provisions and conditions set by the appropriate board panel."

N.J.S.A. 30:4-123.51b(a). The board panel, in certain circumstances and in

accordance with set procedures, "shall have the authority . . . 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[.]" Ibid. Where

a "parolee . . . has seriously or persistently violated the conditions of his parole,

[he] may have his parole revoked and may be returned to custody[.]" N.J.S.A.

30:4-123.60(b).

If the parolee has not been convicted of a crime

committed while on parole or in the case of a juvenile

parolee not adjudicated delinquent for an act which, if

committed by an adult, would constitute a crime, the

purpose of the revocation hearing shall be to determine:

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1. Whether, by clear and convincing evidence, the

parolee has seriously or persistently violated the

conditions of parole; and

2. Whether revocation of parole is desirable.

[N.J.A.C. 10A:71-7.12(c).]

See also Hobson, 435 N.J. Super. at 391 (citations omitted) ("The Legislature

did not grant the Board unbridled discretion to revoke the release status of a

person subject to a term of NERA parole supervision. Absent conviction of a

crime, the Board has that authority only if the parolee 'has seriously or

persistently violated the conditions of his parole.' A decision of a Panel or Board

revoking parole without an articulation of the basis for revocation under the

statutory standard has an appearance of unfairness and caprice that not only

invites but requires careful scrutiny by a reviewing court.").

Clear and convincing evidence

requires evidence that persuades the fact finder "that

the truth of the contention is 'highly probable.'" Stated

differently, the evidence must be sufficient to "'produce

in the mind of the trier of fact a firm belief or conviction

as to the truth of the allegations sought to be

established.'" Even "evidence that is uncontroverted

may nonetheless fail to meet the elevated clear and

convincing evidence standard."

[Hobson, 435 N.J. Super. at 387 (citations omitted).]

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After a revocation hearing, a parole board panel shall issue a decision that

includes "[t]he particular reasons for the decision and the facts relied upon[.]"

N.J.A.C. 10A:71-7.18(b)(2). "[I]t is a fundamental of fair play that an

administrative judgment express a reasoned conclusion. A conclusion requires

evidence to support it and findings of appropriate definiteness to express it."

Hobson, 435 N.J. Super. at 391 (quoting N.J. Bell Tel. Co. v. Communications

Workers of America, 5 N.J. 354, 375 (1950)).

Unfortunately, in this case it is apparent that the Board simply turned a

blind eye to the crucial evidence considered by the Hearing Officer, which

included the significant strides appellant had made while living in Michigan.

He maintained consistent employment, including a full-time job as a fork lift

driver that promised to provide needed health benefits. He had started a family

and was supporting his eight-month-old daughter. The Board was aware, but

simply disregarded, the undisputed evidence that appellant suffered from serious

mental health conditions including schizophrenia and bipolar disorder. Those

conditions went untreated due to lack of medical coverage from the time the

DOC "weaned him off" his needed medication just prior to his release on parole

until his psychiatric hospital admission after a serious mental health crisis. The

Board without explanation rejected appellant's testimony that he felt better

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equipped to avoid future marijuana infractions now that he was being provided

with appropriate medication and psychiatric treatment, despite the Hearing

Officer's having credited that testimony in concluding that appellant was better

served with treatment and not incarceration.

Moreover, it is equally apparent that the Board accorded undue weight to

appellant's criminal history. The Board and Panel repeatedly relied on

appellant's conviction in 2003 – the very conviction that he was paroled for in

the first place, to justify its decision. Tellingly, the State's Confidential

Appendix contains nothing other than appellant's criminal history dating back

to a violation of curfew as a juvenile in 1993. Nothing in the Appendix postdates

2003; the year of appellant's incarceration, as appellant has committed no new

crimes since being paroled. The Board's myopic reliance on remote criminal

offenses constitutes the very "selective and arbitrary reliance on only those

portions of the record that could possibly support the Board's conclusion" that

the Supreme Court cautioned against in Trantino, 166 N.J. at 189. Aside from

the stale evidence of appellant's crimes, the record shows nothing other than

what the Hearing Officer found: a parolee struggling with mental health issues

who smoked marijuana in the face of an inability to afford treatment. Because

the Hearing Officer's findings and conclusion that the violations were neither

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serious nor persistent are amply supported by the credible evidence in the record,

we conclude that the Board's rejection of her decision and its revocation of

appellant's parole was arbitrary and capricious, and led to an unjust result.

Because we are reversing the revocation of appellant's parole based on

substantive grounds, we need not address his alternative argument that the Board

failed to timely address his appeal.

Because appellant's maximum release date is July 2019, we direct that

the Board exercise due haste to effect appellant's release.

Reversed.

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