Opinion
DOCKET NO. A-6103-12T2
10-13-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHN MARTIN ROTH, a/k/a JOHN ROTH, Defendant-Appellant.
John Vincent Saykanic argued the cause for appellant. Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Ms. Rosenkrans, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa, St. John and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 3537-1970. John Vincent Saykanic argued the cause for appellant. Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Ms. Rosenkrans, on the brief). The opinion of the court was delivered by ROTHSTADT, J.A.D.
Defendant John Martin Roth a/k/a John Roth appeals from the Law Division's denial of his May 2011, petition for post- conviction relief (PCR). In his petition, defendant argued the New Jersey State Parole Board (Board) failed to follow the Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A-1 to - 15; it erred in revoking his parole, and it ignored the impact of the "sexual offense and substance abuse treatment programs provided [to him] by the State of Washington."
Defendant was first convicted in New Jersey of rape in 1971 and paroled in 1978, pled guilty to assault and robbery in 1979 and was paroled to the state of Washington in June 1981, where he was arrested in September 1981 and later convicted of rape, robbery, attempted rape, and attempted robbery. New Jersey issued a warrant for defendant, which was lodged as a detainer in Washington in December 1982.
In May 2011, defendant filed a direct appeal from a final decision of the Board revoking his parole, resulting in defendant serving a parole violation term of eighteen years, five months and eighteen days in connection with a rape conviction, and 964 days for assault convictions. We affirmed in an unpublished opinion. State v. Roth, A-4473-10 (Nov. 14, 2012)(slip op. at 1-2). In that appeal, defendant challenged the Board's decision to revoke his parole and incarcerate him by arguing it was an "ex post facto violation;" it violated his "expectation of finality" and "amounted to double jeopardy." Also, he contended his being punished was contrary to the "philosophy of the sex offender act because his incarceration was an act of "punishment" when he should have received "treatment."
After we affirmed the Board's decision, Judge Verna Leath considered his PCR petition and denied it without an evidentiary hearing. In her written decision, the judge rejected defendant's claim regarding the IAD because "violations of parole are not open pending criminal charges, thus not falling under the IAD." In support of her conclusion, the judge relied upon the United States Supreme Court's decision in Carchman v. Nash, 473 U.S. 716, 105 S.Ct. 3401, 87 L.Ed. 2d 516 (1985)(holding that "[a] probation-violation charge, which does not accuse an individual with having committed a criminal offense in the sense of initiating a prosecution, . . . does not come within the terms of [the IAD]"). She also found that, in any event, any delay in bringing defendant to New Jersey for a hearing as required by N.J.S.A. 2A:159A-3 did not apply to defendant because he was incarcerated in another state. The judge also rejected defendant's argument that his parole violation sentence should have run concurrent to the sentence he was already serving because that requirement "applie[d] to convictions occurring in New Jersey, not out-of-state convictions."
Judge Leath also relied on our approval of the Board's actions as discussed in our earlier opinion, and noted that defendant's argument for credits for time served in Washington was procedurally barred. Quoting from State v. Marshall, 173 N.J. 343, 351 (2002) (holding that Rule 3:22-5 bars PCR claims which are either identical or "substantially equivalent" to those previously adjudicated on direct appeal or in a prior PCR petition), the judge explained defendant's claims could not be considered because, pursuant to Rule 3:22-5, PCR "'is neither a substitute for direct appeal, nor an opportunity to relitigate cases already decided on the merits." Finally, the judge explained that a PCR petition was not appropriate to challenge the actions of the Board because "'the exclusive method for review of action or inaction of a State administrative agency, like the [Board], is by direct appeal to "the Appellate Division" (quoting Johnson v. State Parole Board, 131 N.J. Super. 513, 517-20 (App Div. 1974) certif. denied, 67 N.J. 94 (1975)). As a result, the PCR court concluded it did not have "jurisdiction [to] overturn[] the decision of the [Board.]"
This appeal followed. In support of his appeal, defendant argues:
POINT I.
THE COURT ERRED IN DENYING THE PETITION FOR POST-CONVICTION RELIEF AS THE DEFENDANT ROTH
IS ENTITLED TO RELIEF BECAUSE THE NEW JERSEY STATE PAROLE BOARD FAILED TO COMPLY WITH THE INTERSTATE AGREEMENT ON DETAINER'S TIME CONSTRAINTS IN VIOLATION OF ROTH'S DUE PROCESS RIGHTS.
POINT II.
THE NEW JERSEY PAROLE BOARD ERRED IN REVOKING ROTH'S PAROLE, AS ITS MISAPPLICATION OF THE LAW EXISTING AT THE TIME THAT ROTH'S 1982 PAROLE WARRANT WAS FILED RESULTED IN ROTH BEING SUBJECT TO "ADDITIONAL PUNISHMENT" IN VIOLATION OF THE STATE AND FEDERAL "EX POST FACTO" CLAUSE, SPECIFICALLY THAT WHEN A NEW SENTENCE IS IMPOSED ON A PRISONER ALREADY ON PAROLE, HIS EXISTING PAROLE TERM SHOULD RUN CONCURRENT TO THE PERIOD OF THE NEW IMPRISONMENT.
POINT III.
THE PETITION SHOULD HAVE BEEN GRANTED SINCE N.J.S.A. 2C:44-5(C) WAS MISAPPLIED TO ROTH'S"2A" SENTENCE; ANY ADDITIONAL SENTENCE FOR A PAROLE VIOLATION SHOULD HAVE RUN CONCURRENT.
POINT IV.
DEFENDANT ROTH IS ENTITLED TO RELIEF AS A MATTER OF PUBLIC POLICY BECAUSE ROTH'S SEXUAL OFFENSE AND SUBSTANCE ABUSE TREATMENT PROGRAMS PROVIDED BY THE STATE OF WASHINGTON WERE ESSENTIALLY IGNORED BY THE PAROLE BOARD'S DETERMINATION TO REVOKE PAROLE.
POINT V.
THE PETITION SHOULD HAVE BEEN GRANTED AND THE ORDER OF THE STATE PAROLE BOARD REVOKING PAROLE MUST BE REVERSED AS THE DALONGES EVALUATION, CONDUCTED THIRTY YEARS' LATE,
SHOULD NOT HAVE BEEN UTILIZED TO REVOKE PAROLE.
POINT VI.
THE DEFENDANT SHOULD BE RESENTENCED UNDER N.J.S.A. 2C:1-1D(2).
POINT VII.
ROTH IS ENTITLED TO RELIEF AS ROTH WAS HELD PAST HIS MAXIMUM SENTENCE DATE.
POINT VIII.
THE REQUIREMENT THAT ROTH BE EXAMINED BY A "STAFF REVIEW COMMITTEE" PRIOR TO THE SPECIAL CLASSIFICATION REVIEW BOARD (SCRB) IS AN ADDITIONAL STEP, NOT REQUIRED BY LAW, WHICH VIOLATES ROTH'S DUE PROCESS RIGHTS.
POINT IX.
THE ERRORS DETAILED IN THIS BRIEF AGGREGATELY, IF NOT INDIVIDUALLY, DEPRIVED ROTH OF HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHTS MANDATING THE GRANTING OF THIS PETITION.
POINT X.
THE COURT BELOW ERRED IN DETERMINING THAT IT DID NOT HAVE JURISDICTION TO GRANT ROTH THE REQUESTED RELIEF.
State v. Dalonges, 128 N.J. Super. 140 (App. Div. 1974). --------
We have considered defendant's arguments in light of our review of the record and applicable legal principles. We affirm essentially for the reasons stated in Judge Leath's written decision. Defendant's claims were not appropriately raised through a PCR petition as they challenged the Board's determinations and not his convictions, R. 2:2-3(a)(2); see also State, Parole Bd. v. McNair, 131 N.J. Super. 522, 526 (App. Div. 1974)(stating post-conviction relief "cannot be pursued when the objective is to review" the Board's actions), certif. denied, 67 N.J. 99 (1975), a PCR petition cannot act as a substitute for direct appeal, R. 3:22-3; see also State v Preciose, 129 N.J. 451, 459 (1992) (stating "[p]ost-conviction relief is neither a substitute for direct appeal, R. 3:22-3, nor an opportunity to relitigate cases already decided on the merits."), and defendant's claims either were or could have been raised on direct appeal from the Board's decision or his conviction. See R. 3:22-4; R. 3:22-5.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION