Norman v. N.J. State Parole Bd., DOCKET NO. A-3920-17T4
| Decision Date | 14 January 2019 |
| Docket Number | DOCKET NO. A-3920-17T4 |
| Parties | Joseph J. NORMAN, Appellant, v. NEW JERSEY STATE PAROLE BOARD, Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
Borger Matez, PA, attorneys for appellant (Jonathan E. Ingram, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).
Before Judges Alvarez, Nugent and Mawla.
The opinion of the court was delivered by
MAWLA, J.A.D.
Appellant Joseph J. Norman appeals from March 28 and April 24, 2018, decisions by the New Jersey State Parole Board (Board). The primary question raised on appeal is whether an appellant who has served his sentence pursuant to the Sex Offender Act (SOA), N.J.S.A. 2C:47-1 to -10, can be compelled to undergo a psychological evaluation for violation of certain conditions of parole supervision for life (PSL), and mandatory parole supervision (MPS), imposed outside the SOA. We hold the Board cannot compel such an evaluation and reverse that part of its decision. We affirm the Board's imposition of a parole eligibility term (PET) for Norman's violation of a special condition of MPS.
We take the following facts from the record. Norman was twenty-one years old when he committed several acts of aggravated sexual assault against a fourteen-year-old family member. He was arrested in September 2008, and in December 2008, pled guilty to one count of first-degree aggravated sexual assault, in violation of N.J.S.A. 2C:14-2(a)(2)(A).
Norman was sentenced in the second-degree range to seven years of incarceration in the Adult Diagnostic and Treatment Center (ADTC), subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(d)(7). NERA requires MPS for all first- and second-degree offenses. N.J.S.A. 2C:43-7.2(c). Norman was further sentenced to PSL following service of the custodial portion of his sentence, as required by N.J.S.A. 2C:43-6.4(a).
On September 9, 2014, Norman was granted parole and discharged from the ADTC "by reason of the expiration of his maximum custodial sentence." Norman had served his entire seven-year sentence through a combination of jail credits and time served following his conviction. His final discharge stated he was "being discharged from the custodial portion of his ... sentence only to commence the period of supervision as set forth by ... [NERA]." Specifically, Norman was paroled for five years pursuant to MPS, and also began PSL pursuant to N.J.S.A. 2C:43-6.4(a). Notably, he was not paroled pursuant to N.J.S.A. 2C:47-5(a), which governs sex offenders who are paroled before the expiration of their maximum sentence under SOA.
In pertinent part, the conditions of MPS required Norman to: Separately, PSL also included the same conditions. Notably, the Board stated Norman's "PSL status was previously continued to the [EMP] in 2016[,] and most recently continued to the [EMP] in February of 2017[ ]" because of a prior violation.
In May 2017, Norman was arrested for violating parole by failing to inform his parole officer that he had been terminated from his job and for having unsupervised visits with his minor children. On October 18, 2017, a Board panel found Norman had violated the PSL and MPS conditions of his parole. The panel revoked Norman's PSL and directed him to serve twelve months of incarceration. It also revoked MPS and referred him to the ADTC for a psychological evaluation, pursuant to N.J.A.C. 10A:71-3.54(i)(3) and 10A:71-7.19A.
On March 28, 2018, the Board affirmed the panel's determination. According to the Board, the purpose of the psychological evaluation was to "determine whether to affirm the revocation of the mandatory term of supervision and, if affirmed, whether ... Norman's eligibility for future mandatory supervision consideration will be based on N.J.S.A. 2C:47-5(a) or the relevant provisions of N.J.S.A. 30:4-123.45 [to -123.88]."
Norman did not challenge the twelve months of incarceration for violating PSL. Rather, he requested the Board revise its determination to permit his release, effective May 16, 2018, having served the twelve months in confinement, and to resume parole. He argued neither the regulation governing MPS, nor the one governing PSL, granted the Board authority to require a psychological evaluation as a condition of resuming parole, and his continued confinement as a result was unconstitutional.
On April 24, 2018, the Board denied Norman's request. This appeal followed.
The issue on appeal – the Board's interpretation of statutes governing Norman's sentence and regulations regarding his parole – presents a question of law. We owe considerable deference to an agency's interpretation of its own regulations.
US Bank, NA v. Hough, 210 N.J. 187, 200, 42 A.3d 870 (2012) (quoting In re Election Law Enf't Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 262, 989 A.2d 1254 (2010) ). However, "an agency's interpretations, whether through regulations or administrative actions, ‘cannot alter the terms of a legislative enactment nor can they frustrate the policy embodied in [a] statute.’ " Williams v. N.J. Dep't of Corr., 423 N.J. Super. 176, 183, 31 A.3d 645 (App. Div. 2011) (alteration in original) (quoting N.J. Ass'n of Realtors v. N.J. Dep't of Envtl. Prot., 367 N.J. Super. 154, 159-60, 842 A.2d 262 (App. Div. 2004) ). "Ultimately, reviewing courts are not ‘bound by the agency's interpretation of a statute.’ " Ibid. (quoting Shim v. Rutgers, 191 N.J. 374, 384, 924 A.2d 465 (2007) ).
On appeal, Norman asserts he was not paroled pursuant to the SOA, and consequently is not subject to the provisions of N.J.A.C. 10A:71-3.54(i)(3) and N.J.A.C. 10A:71-7.19A. He argues subjecting him to a psychiatric evaluation when he had already served his original sentence placed him in double jeopardy and constituted ex post facto punishment. He also argues he should have been released no later than May 17, 2018, pursuant to N.J.A.C. 10A:71-3.54(i)(2) and 10A:71-7.17B(a)(2). He asserts a twelve-month PET should not have been imposed because he did not violate a special condition certified to by the Board.
As we noted, the Board revoked Norman's MPS and referred him to the ADTC for a psychological evaluation, pursuant to N.J.A.C. 10A:71-3.54(i)(3) and 10A:71-7.19A. The Board's interpretation of the regulation was mistaken.
"An administrative agency, in construing its regulations, must apply the same rules of construction as those guiding statutory construction by the courts." Krupp v. Bd. of Educ. of Union Cty. Reg'l High Sch. Dist. No. 1, 278 N.J. Super. 31, 38, 650 A.2d 366 (App. Div. 1994) (citing In re N.J.A.C. 14A:20-1.1, 216 N.J. Super. 297, 306-07, 523 A.2d 686 (App. Div. 1987) ). For that reason, a regulation "should be construed according to the plain meaning of the language." In re 1999-2000 Abbott v. Burke Implementing Regulations, 348 N.J. Super. 382, 399, 792 A.2d 412 (App. Div. 2002) ); accord Czar, Inc. v. Heath, 398 N.J. Super. 133, 138, 939 A.2d 837 (App. Div. 2008), aff'd as modified, 198 N.J. 195, 966 A.2d 1008 (2009).
"If the plain language leads to a clear and unambiguous result, then [the] interpretive process is over." Calco Hotel Mgmt. Grp., Inc. v. Gike, 420 N.J. Super. 495, 503, 22 A.3d 60 (App. Div. 2011) (alteration in original) (quoting TAC Assocs. v. N.J. Dept. of Envtl. Prot., 202 N.J. 533, 541, 998 A.2d 450 (2010) ). Furthermore, "courts should avoid a construction that would render ‘any word in the statute to be inoperative, superfluous or meaningless, or to mean something other than its ordinary meaning.’ " Ibid. (quoting Bergen Commercial Bank v. Sisler, 157 N.J. 188, 204, 723 A.2d 944 (1999) ).
Criminal statutes are subject to sharper scrutiny for vagueness than civil statutes because criminal statutes have greater penalties and more severe consequences. State v. Maldonado, 137 N.J. 536, 562, 645 A.2d 1165 (1994) (citing State v. Afanador, 134 N.J. 162, 170, 631 A.2d 946 (1993) ); State v. Bond, 365 N.J. Super. 430, 438, 839 A.2d 888 (App. Div. 2003). This comports with the doctrine that "penal statutes must be strictly construed against the State."
State v. Soltys, 270 N.J. Super. 182, 188, 636 A.2d 1061 (App. Div. 1994) (quoting State v. Churchdale Leasing, Inc., 115 N.J. 83, 102, 557 A.2d 277 (1989) ).
Strict construction is appropriate as long as it is not contrary to the Legislature's plain intent, State v. Anicama, 455 N.J. Super. 365, 386, 190 A.3d 474 (App. Div. 2018) (quoting State v. Carreker, 172 N.J. 100, 115, 796 A.2d 847 (2002) ), and as long as it would not "unduly hinder" the Legislature's "object and purpose." State v. Marchiani, 336 N.J. Super. 541, 545, 765 A.2d 765 (App. Div. 2001) (citing State v. Rucker, 46 N.J. Super. 162, 167-68, 134 A.2d 409 (App. Div. 1957) ).
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