                                NOT FOR PUBLICATION WITHOUT THE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-1692-18T1

MICHAEL WOOD,

          Appellant,

v.

NEW JERSEY STATE
PAROLE BOARD,

     Respondent.
______________________

                    Submitted February 24, 2020 – Decided May 7, 2020

                    Before Judges Fasciale and Moynihan.

                    On appeal from the New Jersey State Parole Board.

                    Michael Wood, appellant pro se.

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

PER CURIAM
      Appellant Michael Wood was serving a ten-year term—subject to parole

supervision for life (PSL), N.J.S.A. 2C:43-6.4, and five years of mandatory

parole supervision (MS) under the No Early Release Act (NERA), N.J.S.A.

2C:43-7.2(c)—for first-degree aggravated sexual assault of a helpless or

incapacitated victim, N.J.S.A. 2C:14-2(a)(7). He appeals from respondent New

Jersey State Parole Board's (Board) final decision affirming a two-member

Board panel's decision to revoke his PSL and MS status and impose a fourteen-

month future eligibility term (FET), arguing:

            [POINT I]

            THE PAROLE BOARD'S DECISION TO REVOKE
            . . . WOOD'S MANDATORY SUPERVISION WAS
            CONTRARY TO WRITTEN BOARD POLICY.

            [POINT II]

            THE DECISION TO REVOKE . . . WOOD'S
            MANDATORY SUPERVISION AND PSL IS IN
            CONTRAVENTION TO THE UNITED STATES
            CONSTITUTION'S     5TH     AMENDMENT
            PROTECTION AGAINST DOUBLE JEOPARDY.

            [POINT III]

            THE BOARD PANEL DENIED . . . WOOD HIS
            RIGHT TO PROCEDURAL DUE PROCESS DUE TO
            THE BOARD PANEL'S VIOLATION OF WRITTEN
            BOARD POLICY BY FAILING TO PROVIDE A
            BOARD REPRESENTATIVE TO AID HIM
            THROUGHOUT HIS HEARING(S).

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                                       2
We find no merit to these arguments and affirm.

      Less than six months after Wood was released from custody in February

2018,1 he admitted to the use of cocaine and alcohol; his use was later confirmed

by a laboratory test. He, nonetheless, maintained his parole status with an added

condition that he attend increased outpatient drug counseling. The next month,

after receiving telephonic notification that Wood missed two counseling

sessions, parole officers conducted a home visit during which Wood refused to

provide a urine sample for prohibited-substance testing; he later refused again

at the parole district office. A parole warrant was issued and Wood was charged

with violating: PSL and MS Condition #12 for testing positive for and admitting

cocaine use; PSL Condition #15 and MS Condition #16 for refusing to submit

to drug and alcohol testing; and a violation of a special condition for testing

positive for cocaine use and admitting alcohol use.

      After hearing testimony from the parole officer and Wood at a violation

hearing—at which Wood pleaded guilty to all violations with an explanation,

and admitted that when he refused to submit a urine sample he was "definitely



1
  Wood had earlier been granted parole, but parole was revoked in April 2017
for violations, including residency violations, drug use, alcohol use, and
possession of a cellphone with an active social networking application. He
served a twelve-month term before his release that relates to this appeal.
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                                       3
dirty"—the hearing officer found clear and convincing evidence sustaining all

violations and recommended revocation of PSL and MS and the imposition of a

fourteen month FET on each.

      The two-member panel found that Wood's commission of the violations

was "serious" and that revocation was desirable in light of the numerous

infractions, including use of alcohol which "was a factor in both [of Wood's]

prior supervision violations" and the aggravated sexual assault.         The panel

determined Wood was "not amenable to supervision and a possible danger to the

community." The Board affirmed the panel's revocation and FET.

      Contrary to Wood's argument, that decision did not violate Board policy.

Wood's argument grafts language from N.J.S.A. 30:4-123.60(b) which provides:

"Any parolee who has seriously or persistently violated the conditions of his

parole, may have his parole revoked and may be returned to custody pursuant to

sections 18 and 19 of P.L. 1979, c. 441 (C. 30:4-123.62 and 30:4-123.63)." The

Legislature, however, provided a different standard for PSL parolees.

N.J.S.A. 30:4-123.51b(c) provides: "If the parolee violates a condition of a

special sentence of parole supervision for life, the parolee shall be subject to the

provisions of sections 16 through 19 and 21 of P.L. 1979, c. 441 (C. 30:4-123.60

through 30:4-123.63 and 30:4-123.65), and may be returned to prison." The


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                                         4
Legislature, by the plain language of the statutes, intended to vest the Board

with authority to return a PSL parolee for any violation, not just serious and

persistent violations. See Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 553

(2009) (noting that, when interpreting a statute, a court "look[s] first to the plain

language of the statute, seeking further guidance only to the extent that the

Legislature's intent cannot be derived from the words that it has chosen."

(quoting Pizzullo v. N.J. Mfrs. Ins. Co., 196 N.J. 251, 264 (2008))).

      N.J.S.A. 2C:43-7.2(c)—the NERA statute—provides:

             During the term of parole supervision the defendant
             shall remain in release status in the community in the
             legal custody of the Commissioner of the Department
             of Corrections and shall be supervised by the . . . Board
             as if on parole and shall be subject to the provisions and
             conditions of section 3 of P.L. 1997, c. 117 (C. 30:4-
             123.51b).

Thus, a

             board panel shall have the authority, in accordance with
             the procedures and standards set forth in sections 15
             through 21 of P.L. 1979, c. 441 (C. 30:4-123.59 through
             30:4-123.65), 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 pursuant to
             section 9 of P.L. 1979, c. 441 (C. 30:4-123.53).

             [N.J.S.A. 30:4-123.51b(a).]


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                                         5
That is, MS parole may be revoked if the parolee "seriously or persistently

violated the conditions of his parole[.]" N.J.S.A. 30:4-123.60(b).

      In that our limited standard of review allows us to "overturn the . . .

Board's decisions only if they are arbitrary and capricious," Trantino v. N.J.

State Parole Bd. (Trantino V), 166 N.J. 113, 201 (2001) (Baime, J., dissenting),

we conclude the Board's decision that Wood's infractions were "serious" are

supported by a preponderance of the evidence in the record, see Kosmin v. N.J.

State Parole Bd., 363 N.J. Super. 28, 41-42 (App. Div. 2003), and is thus a

proper exercise of its "discretionary assessment[] of a multiplicity of

imponderables[,]" Trantino V, 166 N.J. at 201 (Baime, J., dissenting) (quoting

Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 10 (1979)).

"To a greater degree than is the case with other administrative agencies, the . . .

Board's decision-making function involves individualized discretionary

appraisals." Ibid. (Baime, J., dissenting).

      Wood's continued violations of the conditions of MS and PSL, starting

with his original release which was revoked, and continuing despite being given

the opportunity to address his substance abuse through outpatient counseling

after using drugs and alcohol shortly after his most recent release, evidence his

inability to take advantage of his parole status. The Board's determination that


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                                        6
that inability posed a danger to the community is well supported, especially

considering that alcohol was a factor in Wood's commission of the aggravated

sexual assault.   We will not second-guess the Board's application of its

considerable expertise in sustaining the panel's determinations. See, e.g., In re

Vey, 272 N.J. Super. 199, 205-06 (App. Div. 1993), aff'd, 135 N.J. 306 (1994).

      We also reject Wood's argument that the revocation of PSL and MS for

the same offenses violates the double jeopardy clause of the federal and state

constitutions. Our Supreme Court's holding in State v. Black, 153 N.J. 438

(1998), is applicable notwithstanding Wood's argument that it is inapposite

because both parole statuses were revoked for the same conduct. Both PSL and

MS are, obviously, parole statuses. The revocation of each "is remedial and

rehabilitative in both its essential purpose and its essential effect. Thus, it

cannot be viewed as punishment triggering the protections against double

jeopardy of the state and federal constitutions. Parole revocation is not, as

defendant asserts, primarily designed to punish parole violators." Id. at 451. In

fact, the Black Court sanctioned parole revocation and prosecution for the same

conduct that supported both the parole decision and the criminal charge of

absconding from parole, N.J.S.A. 2C:29-5(b). 153 N.J. at 451-54.




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      Wood mentions in his merits brief our observation in Balagun v. N.J. Dep't

of Corr., where we "noted that double jeopardy considerations may have

application in some prison discipline situations." 361 N.J. Super. 199, 206 (App.

Div. 2003). We continued:

            Apart from federal and state constitutional protections,
            we are "duty-bound to insure that administrative
            proceedings are conducted in accordance with common
            notions of fundamental fairness." We have also
            previously recognized that "there may arise cases in
            which it would be fundamentally unfair to permit
            repeated disciplinary prosecutions and sanctions for the
            same offense or conduct."

            [Ibid. (citation omitted) (quoting Russo v. N.J. Dep't of
            Corr., 324 N.J. Super. 576, 585-86 (App. Div. 1999)).]

Our concern in Balagun was that the parolee may have been found guilty on one

occasion for possession of "security threat group materials" and, after the

material were "inexplicably returned to him," was found guilty eight months

later of possession of some of the returned materials.        Id. at 204.   That

circumstance—where "it would be fundamentally unfair to sanction a prisoner

twice for possessing the same identical contraband that the prison should have

confiscated after the first disciplinary proceeding," id. at 206—is not present

here where the violations that formed the basis for Wood's revocation took place

on different dates and involved disparate actions. We also note Wood did not


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                                       8
receive an FET for each violation; the fourteen-month term covered both

revocations.

      We determine Wood's remaining arguments, including that he "was

denied the basic aid of a [B]oard representative" at his hearings, to be without

sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). We agree with the

Board's finding that the hearing officer advised Wood of his right to counsel,

and that Wood waived that right.      That decision is supported by credible

evidence. R. 2:11-3(e)(1)(D). Wood signed an "Application for Attorney" form

that explained how counsel may have been of assistance, indicating he did "not

wish to apply for an attorney to be appointed to represent [him]."

      Affirmed.




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