SHIRIN STALLINGS VS. NEW JERSEY STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD)

• Court: New Jersey Superior Court Appellate Division
• Decided: December 11, 2019
• Docket: A-0037-18T2
• Status: Unpublished

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0037-18T2

SHIRIN STALLINGS,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

Submitted November 19, 2019 – Decided December 11, 2019

Before Judges Accurso and Rose.

On appeal from the New Jersey State Parole Board.

Shirin Stallings, appellant pro se.

Gurbir S. Grewal, Attorney General, attorney for respondent (Jane C. Schuster, Assistant Attorney General, of counsel; Christopher Josephson, Deputy Attorney General, on the brief).

PER CURIAM Shirin Stallings appeals from a final decision of the Parole Board

revoking her release status on a mandatory three-year term of parole

supervision imposed pursuant to the No Early Release Act (NERA), N.J.S.A.

2C:43-7.2, and setting a thirteen-month future eligibility term. Stallings'

release was revoked for violating a special condition imposed by the Board

that she successfully complete the Program for Returning Offenders with

Mental Illness Safely and Effectively (PROMISE) at Garrett House. Stallings

waived counsel, N.J.A.C. 10A:71-7.14(c)(2), and a probable cause hearing,

N.J.A.C. 10A:71-7.7(c)(7). She admitted having been discharged from the

PROMISE program but insisted her discharge was based on an inaccurate

report of her employment while enrolled in the program, and that the staff

member who prepared her discharge summary was terminated shortly

afterward for misconduct.

No one from the PROMISE program testified at the revocation hearing.

The program's records contain contradictory information about the reasons for

Stallings' failure to maintain employment. Because her failure to maintain

employment appears to have been a critical factor in Stallings' discharge from

the program, we cannot find the evidence presented was adequate to support a

clear and convincing finding that Stallings "seriously or persistently violated

A-0037-18T2 2 the conditions" of her release status, as required by N.J.S.A. 30:4-123.60(b)

and N.J.S.A. 30:4-123.63(d). Accordingly, we vacate the revocation of

Stallings' release status and remand for a new revocation hearing.

In the hearing officer's summary of the revocation hearing, he noted that

Stallings' parole officer testified that Stallings completed the treatment phase

of the PROMISE program and obtained employment. PROMISE records

indicate that Stallings completed "both Moving on and W.R.A.P. Groups," as

well as a job readiness program and was enrolled in "IOP group and individual

sessions," a cognitive skills training course designed to teach "relapse

prevention and planning." Stallings was also reported to have participated in

"Life Skills, Thinking for a Change, CALM and Healthy Relationships,"

displaying "good participation during group sessions and . . . some positive

insight during group and individual sessions."

The parole officer further testified, however, in accord with certain

records from the program, that Stallings lost her job after two weeks "for

allegedly fighting with a co-worker." The parole officer testified that Stallings

"was then returned to the treatment phase of the program." Again, relying on

the program's records, the parole officer testified that Stallings "continued to

display noncompliant behavior and incur infractions," including but not limited

A-0037-18T2 3 to "refusing to obey staff, disrespecting staff, unauthorized use of cell phone,

refusal to comply with treatment and using obscene and/or abusive language."

In addition the program's records reflected that Stallings reported to staff she

had smoked "K-2," a synthetic marijuana, in the facility's bathroom.

Stallings testified she had only worked at one place and was terminated

for lack of work, not fighting. She acknowledged several rules infractions but

claimed she only told staff she smoked K-2 to get help for another program

participant who had and needed immediate medical attention. Stallings

claimed she repeatedly requested a drug test to confirm her false report, but the

program refused and her parole officer did not respond to her calls. Stallings

also claimed a staff member asked Stallings to provide the staff member with

Stallings' urine so the staff member could pass the urine off as her own when

drug tested.

After hearing the evidence, the hearing officer recommended revocation

of Stallings' supervision status. Although concluding Stallings demonstrated

"noncompliant conduct" and was discharged from the PROMISE program after

two months, the hearing officer did not reference any of the testimony, making

it impossible to discern what he credited. Instead, he simply concluded "based

on the testimony provided, [Stallings] not only minimized her behavior, [she]

A-0037-18T2 4 also demonstrated that she does not yield the motivation and/or insight to

address the same."

After reviewing the hearing officer's summary, a two-member Board

panel concurred "with the findings of fact by the Hearing Officer." The panel

found there was clear and convincing evidence to conclude Stallings violated a

special condition of her parole by failing to successfully complete the

PROMISE program. The panel revoked Stallings' supervisory status and

imposed a thirteen-month future eligibility term.

In Stallings' appeal to the full Board, she alleged the person who

completed her discharge summary at the PROMISE program, the same person

Stallings alleged had asked for her urine so that she could pass it off as her

own, had since been fired for misconduct. Stallings also pointed out the

contradictory information in the PROMISE records about her employment.

She alleged the information in the discharge summary that Stallings had been

terminated for fighting with a co-worker was false and inconsistent with other

information in the records that she had been laid off for lack of work. As to

the allegation about her having admitted smoking K-2, Stallings claimed her

probation officer testified at the hearing she had been on vacation when the

incident occurred and unable to address it. Stallings claimed the hearing

A-0037-18T2 5 officer stated he would strike the allegation from the record and not consider it

in making his recommendation.

In its final decision, the full Board found "the Board panel reviewed and

considered all relevant facts pertaining to [Stallings'] violations of the

conditions of . . . mandatory supervision" and found "clear and convincing

evidence" that Stallings violated a special condition of her parole by failing to

complete the PROMISE program. The Board found "upon review of the

electronic recording" of the revocation hearing 1 that there was no evidence to

support Stallings' claim she falsely reported using K-2, but it made no mention

of Stallings' allegation of the parole officer's testimony on the point and did

not address her claim that the hearing officer determined to disregard that

infraction in rendering his recommendation. Instead, the Board found

Stallings' "denial of K-2 use and accusations of staff misconduct were

considered by the hearing officer," who "expressly noted his consideration of

this information as part of the record of your hearing."

The Board concluded the Board panel "appropriately reviewed the facts

of Stallings' case, has documented that clear and convincing evidence exists

1 We have not been provided with the recording and it is not listed in the Board's Statement of Items Comprising the Record on appeal. A-0037-18T2 6 that [Stallings has] seriously violated the conditions of [her] mandatory

supervision and that revocation of [her] mandatory supervision status is

desirable." The Board "agree[d] with those findings and conclusions and

[found Stallings'] contention that the Board panel failed to consider the entire

record in this matter, to be without merit."

Stallings appeals, raising one issue:

THE DECISION OF THE STATE PAROLE BOARD TO REVOKE PAROLE WAS ARBITRARY AND UNJUST, AND VIOLATED LEGISLATIVE POLICY; THE BOARD FAILED TO CONSIDER ALL OF THE FACTS AND UTILIZED INACCURATE INFORMATION. THE DECISION SHOULD BE SET ASIDE (EXHIBITS A1 THROUGH A5 AND A9 THROUGH A12)

"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 is "subject

to the provisions and conditions set by the appropriate [B]oard panel."

N.J.S.A. 30:4-123.51b(a). That statute also gives the Board 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 [B]oard, that the person is again eligible for release . . . ." Ibid.

The Board must exercise its authority to revoke release status "in

accordance with the procedures and standards" codified in N.J.S.A. 30:4 -

A-0037-18T2 7 123.59 through N.J.S.A. 30:4-123.65. N.J.S.A. 30:4-123.51b(a). The

statutory standards referenced permit revocation only on proof by clear and

convincing evidence that the person "has seriously or persistently violated the

conditions," N.J.S.A. 30:4-123.60(b) and N.J.S.A. 30:4-123.63(d), or that the

person has been "convicted of a crime" while released, N.J.S.A. 30:4-

123.60(c); see also N.J.A.C. 10A:71-7.12(c)(1) to (2).

Revocation hearings are conducted by a hearing officer, who must make

a record and provide reasons for his or her recommendation to a two-member

panel of the Board in writing. N.J.S.A. 30:4-123.63. The hearing officer's

written summary is given to the two-member panel and the parolee or her

attorney, who may file exceptions with the panel within seven days. N.J.A.C.

10A:71-7.16. The panel makes its decision after reviewing the hearing

officer's summary, the exceptions and the record, N.J.S.A. 30:4-123.63(d),

(e); N.J.A.C. 10A:71-7.16 to -7.17B, which decision must be memorialized in

writing, setting forth "particular reasons . . . and the facts relied upon,"

N.J.A.C. 10A:71-7.18. Where parole is revoked, the two-member panel's

decision is appealable to the Board on several grounds, among them being the

panel's failure to consider material facts; its failure to document the clear and

convincing evidence of serious or persistent violations; and its entry of a

A-0037-18T2 8 decision "contrary to written Board policy or procedure." N.J.A.C. 10A:71 -

4.1(e)(1) to (3). Pursuant to Rule 2:2-3(a)(2), appeal to this court is from the

agency's final decision.

There is no question on this record that Stallings was discharged from

the PROMISE program. Stallings admitted it at the hearing. The only

question was why. Stallings claimed the main reason supporting her

discharge, that she was terminated from her job after two weeks for fighting ,

was false, as was her claim to a staff member to have smoked K-2, and that the

staff member who completed that discharge summary sought Stallings' urine to

pass off as the staff member's own and was subsequently discharged for

misconduct.2 Although the Board claims those points were considered by the

hearing officer, his failure to find any facts beyond Stallings' discharge from

the program for "noncompliant conduct" makes that claim unverifiable on this

record.

The PROMISE program discharge summary in the record provides

contradictory information of the reasons for Stallings' employment

2 In a letter to the Chairman of the Parole Board, Stallings claimed that a senior investigator of the Parole Board's Office of Professional Standards, whom she identified, was aware of the staff member's misconduct and termination and could "provide more information." A-0037-18T2 9 termination, in one place reporting she was terminated for fighting and in

another that she was terminated for lack of work. The hearing officer's failure

to state which version he credited and why, along with his failure to address

whether he believed Stallings' claim that she falsely reported use of K-2, or

determined not to consider it as Stallings asserts, makes it impossible to

determine whether there was clear and convincing evidence that Stallings

"seriously or persistently violated the conditions," of her parole, N.J.S.A. 30:4-

123.60(b) and N.J.S.A. 30:4-123.63(d).3

That standard of proof requires evidence that persuades the fact finder

"that the truth of the contention is 'highly probable.'" In re Perskie, 207 N.J.

275, 290 (2011) (quoting 2 McCormick on Evidence § 340, at 487 (Broun ed.,

6th ed. 2006)). 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.'" In re Purrazzella, 134 N.J. 228, 240

(1993) (quoting Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 162 (App. Div.

3 Whether Stallings' other rule infractions included in the discharge summary, refusing to get out of bed and take medication on two occasions, once eating pizza in the dormitory, walking out of sight of staff on a recreational walk, using another participant's phone and refusing to hang up when asked, along with being disrespectful to staff on those occasions, would support discharge from the program, and thus that Stallings "seriously or persistently violated the conditions," of her parole, is not addressed on this record. A-0037-18T2 10 1960)). Even "evidence that is uncontroverted may nonetheless fail to meet

the elevated clear and convincing evidence standard." Perskie, 207 N.J. at

290.

This court defers to an agency decision if it is supported by the record

and not "arbitrary, capricious or unreasonable." In re Taylor, 158 N.J. 644,

657 (1999) (internal citation omitted). "[E]xercise of such deference is

premised on our 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 Review, 339 N.J. Super. 29, 33 (App. Div. 2001).

"[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." N.J. Bell Tel. Co. v.

Commc'ns Workers of Am., 5 N.J. 354, 375 (1950).

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." N.J.S.A.

30:4-123.60. A decision of a panel or Board revoking parole without an

articulation of the basis for revocation under the statutory standard has an

A-0037-18T2 11 appearance of unfairness that invites and requires careful scrutiny by a

reviewing court.

Because the hearing officer, whose "findings" were adopted by both the

panel and the Board, did not reference the proofs in concluding that Stallings

seriously or persistently violated the conditions of her parole, N.J.S.A. 30:4-

123.60, and thus failed to adequately explain his conclusion that Stallings

qualified for revocation under that standard, we vacate the revocation and

remand for a new hearing. We express no opinion on the merits of Stallings'

claims; we find only that the record is inadequate to support the Board's

conclusion that the facts support revocation.

Reversed and remanded for further proceedings in conformity with this

opinion. We do not retain jurisdiction.

A-0037-18T2 12