State v. MoralesState v. Morales
This matter involves two separate appeals: (1) denial of defendant‘s petition for post-conviction relief, and (2) the revocation of defendant‘s parole by the State Parole Board.
I
Defendant was found guilty of carnal abuse and on April 11, 1958 was committed to the New Jersey State Hospital at Marlboro. He took no direct appeal. His first petition for post-conviction relief was filed on July 14, 1967. It was dismissed by the court, without an evidentiary hearing, on October 13, 1967 on the ground that it had not been filed within five years after defendant‘s conviction. R.R. 3:10A-13, now
The order dismissing the petition is affirmed. The petition did not allege faсts showing the delay in filing for more than five years was due to defendant‘s excusable neglect,
II
Defendant was paroled from the New Jersey State Hospital at Marlboro on April 17, 1969. On August 11, 1970 defendant was arrested and charged with atroсious assault and battery for stabbing the husband of his paramour. When interviewed by his parole officer he admitted the stabbing and also having sexuаl relations with the victim‘s wife. On October 5, 1970 defendant pleaded guilty in the municipal court to simple assault and battery and was sentenced tо the time served in jail (60 days).
Upon receipt of the parole officer‘s report the State Parole Board on September 16, 1970 declared defendant delinquent on parole as of August 11, 1970, the date of his arrest, and revoked his parole. The stated grounds for revоcation were:
1. Failure to refrain from conduct on parole which shall give reasonable cause to believe that you have resumed, or are about to resume, criminal conduct or associations, as evidenced by the circumstances
2. Failure to notify your parole officer as soon as possible after your arrest.
When defendant was released from the Union County jail on October 6, 1970 he was transported to the Rahway Diagnostic Unit as a parole violator. On December 29, 1970 defendant was given a hearing on the September 16, 1970 revocation of parole. The parole board decided that the revocation should remain in effect and defendant would not be reparolеd.
On appeal defendant raises four arguments: (1) he was entitled to a hearing on the proposed revocation of parоle with counsel to assist him at the revocation hearing, (2) the revocation of parole was arbitrary, capricious and an abuse of discretion depriving defendant of due process of law under the Fourteenth Amendment, (3) rules and regulations concerning the pаrole of sex offenders should be promulgated in accordance with
We conclude that the arguments raised are lacking in merit. Following oral argument of this appeal the United States Supreme Court rendered its decision in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (decided June 29, 1972) which laid down due process requirements that must be аfforded a parolee before a parole board may revoke his parole. We find that several of the requirements, notably a preliminary hearing and notice of a hearing prior to revocation, are absent in this case. However, we have сarefully reviewed the record and conclude that had all the specified due process requirements of Morrissey been scrupulously followed the same result, revocation of parole, would have been reached. It is undisputed that Morales pleaded guilty to assault and battery while on
The issue of whether a paroleе has a constitutional right to the assistance of counsel was not reached nor decided in Morrissey. However, other courts have held that there is no right to counsel at a parole revocation hearing and that any such right depends entirely upon the existence of statutory provisions. Johnson v. Stucker, 203 Kan. 253, 453 P.2d 35, 40 (Sup. Ct. 1969), cert. den. 396 U.S. 904, 90 S.Ct. 218, 24 L.Ed.2d 180 (1969). In the absence of such a statute and in view of our Supreme Court‘s statement in Pulchaski v. N.J. State Parole Bd., 55 N.J. 113, 116 (1969), cert. den. 398 U.S. 938, 90 S.Ct. 1841, 26 L.Ed.2d 270 (1970), to the effect that the decisions to date generally hold no such right to counsel exists in parole revocation proceedings, we hold that there is no constitutionаl requirement to provide a parolee with counsel during a parole revocation proceeding. See Bearden v. State of South Carolina, 443 F.2d 1090, 1093 (4 Cir.1971); Hyser v. Reed, 115 U.S. App. D.C. 254, 318 F.2d 225, 238 (1963), cert. den. Thompson v. United States Bd. of Parole, 375 U.S. 957, 84 S.Ct. 446, 11 L.Ed.2d 315 (1963) and Baxter v. Commonwealth, 1971 Mass. Adv. Sh. 487, 268 N.E.2d 670, 674-675 (Sup. Jud. Ct. 1971).
We turn next to appellant‘s second point. In State v. Lavelle, 54 N.J. 315 (1969), the New Jersey Supreme Court stated:
Ordinarily the grant оr denial of parole is a matter which rests in the discretion of the parole authority. It is not a judicial function * * * Courts must give great weight to thе expertise of the Board in dealing with parole decisions. They should not intervene unless it clearly and convincingly appears thаt the Board abused its discretion. (at 322 and 325)
Defendant‘s points 3 and 4 involve matters which are not properly before us for judicial review.
Affirmed.