JOSEPH J. NORMAN v. NEW JERSEY STATE PAROLE BOARD
DOCKET NO. A-3920-17T4
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
January 14, 2019
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3920-17T4
JOSEPH J. NORMAN,
Appellant,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent.
Submitted December 19, 2018 – Decided January 14, 2019
Before Judges Alvarez, Nugent and Mawla.
On appeal from the New Jersey State Parole Board.
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).
MAWLA, J.A.D.
APPROVED FOR PUBLICATION
January 14, 2019
APPELLATE DIVISION
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),
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 fоurteen-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
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),
Norman was further sentenced to PSL following service of the custodial
portion of his sentence, as required by
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 рortion 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
In pertinent part, the conditions of MPS required Norman to: “Immediately notify the assigned parole officer of any change in employment status. . . . Refrain from initiating, establishing or maintaining contact with any minor[,] . . . [and] [s]uccessfully complete the EMP1.” Separately, PSL аlso 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 officеr 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 revokеd MPS and referred him to the ADTC
for a psychological evaluation, pursuant to
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
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 сontinued confinement as a result was unconstitutional.
On April 24, 2018, the Board denied Norman‘s request. This appeal followed.
I.
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 (2012) (quoting In re Election Law Enf‘t Comm‘n Advisory Op. No. 01-2008, 201 N.J. 254, 262 (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 (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 (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 (2007)).
On appeal, Norman asserts he was not paroled pursuant to the SOA, and
consequently is not subject to the provisions of
II.
As we noted, the Board revoked Norman‘s MPS and referred him to the
ADTC for a psychological evaluation, pursuant to
“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 (App. Div. 1994) (citing In re N.J.A.C. 14A:20-1.1, 216 N.J. Super. 297, 306-07 (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 (App. Div. 2002) (citing Medford Convalescent & Nurs. Ctr. v. Div. of Med. Assist. & Health Servs., 218 N.J. Super. 1, 5 (App. Div. 1985)); accord
Czar, Inc. v. Heath, 398 N.J. Super. 133, 138 (App. Div. 2008), aff‘d as modified, 198 N.J. 195 (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 (App. Div. 2011) (alteration in original) (quoting TAC Assocs. v. N.J. Dept. of Envtl. Prot., 202 N.J. 533, 541 (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 (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 (1994) (citing State v. Afanador, 134 N.J. 162, 170 (1993)); State v. Bond, 365 N.J. Super. 430, 438 (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 (App. Div. 1994) (quoting State v. Churchdale Leasing, Inc., 115 N.J. 83, 102 (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 (App.
Div. 2018) (quoting State v. Carreker, 172 N.J. 100, 115 (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 (App. Div. 2001) (citing State v. Rucker, 46 N.J. Super. 162, 167-68 (App. Div. 1957)).
determin[e] whether the violation(s) of the parole conditions reflects emotional or behavioral problems as a sex offender that cause the offender to be incapable of making any acceptable social adjustment in the community and, if so, to determine further the inmate‘s amenability to sex offender treatment and, if amenable, the inmate‘s willingness to participate in such treatment.
[
N.J.A.C. 10A:71-7.19A(d) .]
[I]f the report of the examination conducted pursuant
to . . . [
eligible for parole pursuant to the provisions of
[
By its plain language,
Our conclusion is further supported by the fact
challenged the revocation of parole where he had committed a non-sexual offense. Id. at 145.
On appeal, we held the intent of the SOA was to treat sexual offenders.
Id. at 145-46. We concluded Dalonges’ parole violations did not relate to
In contrast, Norman had already served his sentence. Thus, the facts and
outcome of Dalonges underscore that
Furthermore, we reject the Board‘s argument that it can compel a
psychological evaluation in order to determine Norman‘s future parole
eligibility under MPS based upon
become eligible for parole consideration upon referral to the State Parole
Board of the offender‘s case by a special classification review board appointed
by the commissioner.”
Therefore, the Board‘s argument that
(i) If a term of parole supervision imposed by a court pursuant to
N.J.S.A. 2C:43-7.2 is revoked by the appropriate Board panel and the offender returned to custody for violation of a condition of supervision the Board panel shall determine:. . . .
3. Whether the offender, if originally sentenced pursuant to
N.J.S.A. 2C:47-1 [to -10] and eligibility for parole consideration required the recommendation of the Special Classification Review Board, shall be eligible for parole consideration pursuant to the provisions ofN.J.A.C. 10A:71-7.19 or 7.19A, as appropriate.[
N.J.A.C. 10A:71-3.54(i)(3) .]
The plain language of the regulation demonstrates it does not apply to
Norman. In Norman‘s final discharge document dated September 9, 2014, the
Board acknowledged he had been released from ADTC because of the
“expiration of his maximum custodial sentence.” Furthermore, the Boаrd
stated: “This offender is being discharged from the custodial portion of his . . .
sentence only to commence the period of supervision as set forth by . . .
[NERA].” Thus, the Board acknowledged MPS was not a continuation of the
SOA sentence, which had already been completed. Moreоver, for reasons we
have already discussed,
For these reasons, we reverse the Board‘s finding Norman was required
III.
Finally, Norman argues that under
We find no error in the Board‘s imposition of a twelve-month PET. The
Board has broad discretion in parole release decisions. Trantino v. N.J. State
Parole Bd., 296 N.J. Super. 437, 470 (App. Div. 1997) (citing State v. Lavelle,
54 N.J. 315 (1969)).
Norman successfully complete the [EMP].” Thus, contrary to Norman‘s claims, the Board panel had imposed special conditions when it adjudicated a prior parole violation in 2017 and decided to continue him on parole.
Separate from the SOA, Norman was subject to MPS as a part of his
original sentence, which he violated. Therefore, the imposition of a twelve-
month PET, pursuant to
Reversed in part and affirmed in part. We do not retain jurisdiction.