State v. Lavelle

The opinion of the court was delivered by

Francis, J.

On this appeal defendant Lavelle attacks as excessive a sentence imposed upon him of three to five years in State Prison and a fine of $1,000. With respect to the fine the trial court’s direction was that he stand committed until it was paid. He challenges also the ruling of the State Parole Board denying him street parole until he either paid the $1,000 fine or worked it off in continued confinement at the rate of $5 a day. The Appellate Division affirmed the sentence unanimously and the Parole Board *317order by a divided vote.1 Judge Conford in his dissent would remand that part of the case to the trial court for a hearing on the prisoner’s indigency. In his view, if such hearing resulted in a finding of indigency, the Parole Board should be directed to parole Lavelle on appropriate conditions for payment of the fine in installments. Appeal was taken to this Court on the basis of the dissent. R. R. 1:2-l (b).

On September 30, 1966 defendant pleaded guilty in the Union County Court to an indictment charging him with possession of marijuana in violation of N. J. S. A. 24:18-4. The offense is a high misdemeanor punishable in the ease of a first offender by a mandatory fine not exceeding $2,000, and by imprisonment, with hard labor, for a term of not less than two years nor more than 15 years. N. J. S. A. 24:18-47(c) (1). On October 21, 1966 when Lavelle appeared for sentence, he made a personal plea for leniency, saying that he had “kicked” the habit of smoking marijuana, and if given another chance he would find regular employment and rehabilitate himself. Being impressed the court imposed a sentence of two to three years in prison and a fine of $250 but suspended the sentence and placed him on probation for three years, during which period he was to pay the fine at the rate of $5 a week.

Less than two months later Lavelle was convicted in the Elizabeth Municipal Court of unlawful use of heroin. He was sentenced to the county jail for six months, but shortly thereafter he was again able to persuade the court to be lenient. Consequently the sentence was suspended and a year’s probation was ordered. In granting probation the magistrate gave him an opportunity to rehabilitate himself by undergoing a course of treatment at St. Dismas Center for Drug Addiction in Paterson, F. J. He was ordered to remain there until discharged. Instead, on June 19, 1967 *318he left without permission and before discharge. The Director, Monsignor William Wall, advised the county judge that defendant made “little effort toward rehabilitation,” and that he needed “a shock to realize the seriousness of his problem.”

After leaving St. Dismas defendant was instructed to take out-patient treatment at the Union County Narcotics Clinic. On September 12, 1967 its Director advised that in spite of' “every effort toward rehabilitation * * * is evident Lavelle is not motivated toward any type of treatment,”

Just two months later, on November 14, 1967, Lavelle was convicted of fraud in the same municipal court. He was fined $100, ordered to make restitution, and again put on probation for one year.

In addition it appeared that he had failed to make the regular $5 weekly payments on the original fine in the county court. At the end of the first year of probation he had made only five weekly payments and still owed $225.

The performance described caught up with him and he was ordered to show cause why the county court probation should not be revoked. On December 8, 1967 the original sentencing judge conducted a revocation hearing, at which Lavelle pleaded guilty to violation of probation, and again sought clemency.

It is obvious from the colloquy between the court and Lavelle and the latter’s renewed plea for continuance of probation, that he is an intelligent person and that he had a thorough understanding of the conditions of his probation. This time the judge was not impressed. He felt a very fair chance at rehabilitation had been given and willfully ignored by Lavelle, who no longer could be relied upon to live within the probation conditions or to pay the balance of his $250 fine in weekly installments. Consequently probation was revoked, the original suspended sentence was vacated, and a new sentence of three to five years in State Prison (with credit for the time already spent in confinement) and a fine of $1,000 was imposed. Obviously mindful of Lavelle’s past performance, the judge expressly ordered that he remain *319committed until the fine was paid. With respect to this sentence it should be noted under N. J. S. 2-A :168-4 that upon finding the terms of probation have been violated, the court “may cause the sentence [originally] imposed to be executed or impose any sentence which might originally have been imposed.” This replacement sentence was well within the penalty of two to 15 years and fine not exceeding $2,000 authorized by N. J. S. A. 24:18-47(c) (1) for the crime of possession of marijuana.

The Appellate Division unanimously rejected the claim that this sentence was excessive. We concur in that view and see no need for further discussion of -the matter.

While the appeal was pending in the Appellate Division, defendant, having served sufficient time to make him eligible for parole consideration (i. the minimum or one-third of

the maximum term less good behavior and work credits (N. J. S. A. 30:4-123.10)), presented an application to the Parole Board. The Board granted parole from the fixed imprisonment part of the sentence to be effective on January 7, 1969, but subject to the condition that if he was unable to pay the $1,000 fine portion thereof, he would have to work it off in the institution at the rate of $5 a day. Since defendant was indigent and therefore unable to pay the fine, on January 9 he went on so-called cell parole and began to amortize it at $5 a day. The $5 rate of credit is fixed by N. J. 8. 2A :166-16,2 which further provides that when “the prisoner shall have been confined for a sufficient number of days to establish credits equal to the total aggregate amount of such fines * * * he shall be discharged from imprisonment * * *.”

*320The action of the Parole Board was authorized by N. J. S. A. 30:4-123.15, under which if an inmate is eligible for parole “but is required to remain in confinement because of failure to pajr a fine * * * the board may release [him] on parole upon condition that such fine * * * be paid, through the probation office of the [appropriate] county * * * in weekly amounts to be fixed by the board.”

Defendant claims that since he is an indigent (a fact which we regard as sufficiently shown by the record before us), the order of the Parole Board finding him fit for street parole under N. J. S. A. 30 :4-123.14, but refusing to release him unless he either pays the $1,000 or works it off at $5 a day denies him due process and equal protection of the law under the Constitution of the United States. More specifically he points out that when the Board granted his application for parole from the imprisonment part of his sentence, to become effective on January 7, 1969, it signified a finding (as the cited statute required) of “reasonable probability” that, if released “he will assume his proper and rightful place in society, without violation of the law, and that his release is not incompatible with the welfare of societjc” And Lavelle argues that since a financially capable prisoner would be released on the parole date upon payment of the fine, his basic rights were violated when he was denied his liberty solely because he was indigent and unable to make the payment.

The majority of the Appellate Division recognized that the trial judge was bound by N. J. S. A. 24:18-47(e) (1) to punish the defendant for the narcotics offense by a prison term of not less than two years nor more than 15 years and a fine not exceeding $2,000. Thus the three to five year sentence plus the $1,000 fine was in response to the command of the statute and constituted the sum of punishment imposed. And as the majority noted, even if Lavelle served 200 additional days in working off the $1,000 fine, his total imprisonment would be less than the three year mrnfmirm sentence since he was granted parole (as of January 9, 1969) *321after confinement of only a month more than two years; such a period of total confinement was clearly within the maximum imprisonment term of the imposed sentence. Eor that reason and after a consideration of the totality of the circumstances before the Parole Board, two judges concluded that no showing had been made of discriminatory treatment of defendant or abuse of discretion on the part of the Board in denying street parole on January 7, 1969 unless the fine was paid or worked off.

The dissenting judge acknowledged the legal propriety of crimes statutes which provide for imprisonment or fine or both as punishment for their violation. And he did “not entertain the idea that imposition of a fine is ever unconstitutional merely because of the poverty of the miscreant at sentence.” State v. Allen, 104 N. J. Super., at 197. But in his view it is a denial of due process and of equal protection “arbitrarily” to keep “an indigent defaulter in jail for no reason other than his sheer inability to pay a fine * * *.” Id., at 198. And he regarded it “as fundamentally unjust to deprive a person of his liberty for no better reason than that he has not at the moment the wherewithal to pay a fine in full * * *.” Id., at 200. (Emphasis added). In his judgment an indigent prisoner who is ready for parole in the opinion of the Board should be released subject to the condition that he pay the fine in reasonable installments. Then if he willfully failed to make the payments, commitment would follow to work off the fine or any balance due. Accordingly, as noted above, Judge Conford would order an indigency hearing, and on a finding of indigency would direct the Parole Board to release Lavelle under a reasonable plan for installment payments of the fine.

A hearing on indigency is unnecessary. The existence of that state is plain. But indigency per se cannot be deemed to require the Parole Board to release Lavelle on condition of periodic part payments of his fine. Such a rule requiring automatic release would invade the legitimate function of the Board, i. e., to exercise its discretion reasonably *322in deciding whether and when and in what circumstances parole should be granted. For reasons to be stated we agree with the majority of the Appellate Division that the refusal to order release until the fine was paid or worked off was not shown to be an abuse of discretion.

The controlling statute, N. J. S. A. 30:4-123.15, sufra, authorizes the Board in its discretion to release an inmate (otherwise eligible for parole under N. J. S. A. 30 :A-123.14) with an unpaid fine upon condition that the fine be paid in weekly amounts to be fixed by it. And it further provides for parole revocation for failure to pay in accordance with the terms imposed. Obviously, for a court to invade the province of another branch of the government and require that a prisoner automatically be put on the street to pay the fine in installments, simply because he is otherwise eligible for parole, would be to trespass upon the Board’s statutorily granted discretionary prerogatives, and to frustrate the legislative purpose in providing for fines — particularly mandatory ones — as whole or part punishment for certain crimes. On the other hand since the determination as to whether prisoners subject to a fine should be released to satisfy it by installment payments is committed to the discretion of the Board, it would be within the statutorily delegated authority for the Board to adopt as a matter of policy and administration a general rule by which all such prisoners (otherwise ready for parole under N. J. S. A. 30:4-123.14) would be released and given a chance to make installment payments. Such a rule (which will come into operation on July 1) would not frustrate the legislative intent exhibited by N. J. S. A. 30:4-123.15. It would represent administrative implementation of that intent by the agency to which the lawmakers had committed its effectuation.

Ordinarily the grant or denial of parole is a matter which rests in the discretion of the parole authority. It is not a judicial function. Under the statute the minimum sentence or the designated portion of the maximum sentence merely signifies the period after which the convict is eligible *323for parole; he is not automatically released at the expiration of the minimum term, but merely becomes eligible for parole consideration at that time. White v. Parole Board, 17 N. J. Super. 580 (App. Div. 1952); Faas v. Zink, 48 N. J. Super. 309 (App. Div. 1957), affirmed 25 N. J. 500 (1958); In re Fitzpatrick, 9 N. J. Super. 511 (Law Div. 1950), affirmed 14 N. J. Super. 213 (App. Div. 1951); Zink v. Lear, 28 N. J. Super. 515 (App. Div. 1954).

When Lavelle had served a sufficient portion of his specific imprisonment sentence to make him eligible for parole consideration, the exercise of the Board’s discretion in two areas was required. First, whether his record was conducive to a reasonable belief that his release would not be incompatible with the welfare of society. Second, whether he could be relied upon reasonably to make a good faith effort outside the prison walls to pay his fine in weekly installments. Following a hearing, the Board undoubtedly concluded that if it were not for the unpaid fine, he qualified for parole. However, it is also obvious from the record that on the basis of his previoris performance on probation, the Board decided he was a poor risk for release since he could not be relied upon to make a good faith effort to pay his fine.

We have recounted above how Lavelle, an intelligent person, failed to take advantage of the opportunity to be at large on probation and to perform as a responsible citizen. Instead he continued in criminal activity in spite of two additional grants of probation, and he failed over a period of a year to pay more than $25 of his then existing $250 fine. More than that, he failed to work regularly, not because he was unable to do so or that employment was unavailable, but because he was not really interested in regular employment. The probation reports, copies of which must be filed with State Prison upon a defendant’s confinement there, B. B. 3:7-10(b), show that Lavelle on many occasions described himself as a non-conformist with regard to most of the current behavior standards. The probation officer charged with his supervision reported that Lavelle “diligently *324avoided regular employment where his hours and earnings could be accounted for” and “preferred work as a caddy.” (He had graduated from high school and had some college education.) He was told by the officer on many occasions that such employment was unsatisfactory, and on one occasion he was referred to a plastics company in Union County for regular work. The officer was informed that he reported for work in an intoxicated condition. The foreman gave him the opportunity to return the following night to begin work, but he never came back or otherwise communicated with the company. Later he showed no interest upon being referred to the United States Employment Service for job-training. In conclusion the probation officer advanced the opinion that the “defendant appears as one dedicated firmly to a way of life which continues to preclude any possibility of satisfactory adjustment * * * under the prevailing rules of probation as ordered by this Court.” These reports as well as the county judge’s personal contact satisfied him that Lavelle consciously avoided regular employment that would put him in a position to pay the $5 weekly installments on his original fine of $250.

The Parole Board was clearly aware of Lavelle’s history as we have just outlined it, particularly his work record, his attitude toward regular employment, and his failure to accept the opportunity given to him by the county court to satisfy the $250 fine by moderate weekly payments. It studied his case and “all relevant factors” on two occasions and in the exercise of its experienced judgment decided not to Telease him until he satisfied the $1,000 fine at the rate of $5 for each confinement day after January 7, 1969. Obviously, the Board concluded he would not make a good faith effort to obtain and keep regular employment or to pay his fine. The treatment accorded Leon K. Allen by the Board and the reasons therefor may be contrasted with that given Lavelle. See State v. Allen, 54 N. J. 311 (1969) also decided this day.

*325Under all the circumstances revealed by the record it cannot be said that Lavelle was denied street parole solely because of his indigency. Courts must give great weight to the expertise of the Board in dealing with parole decisions. They should not intervene unless it clearly and convincingly appears that the Board abused its discretion. No such showing has been made here. Accordingly, we see no problem of constitutional dimension in the case, and consequently no necessity to discuss the issue as framed in the dissent in the Appellate Division. Such question is reserved for consideration in a more appropriate setting.3

Since the argument of this case the Parole Board on June 2, 1969 adopted a general rule to be applied hereafter in connection with the parole of inmates of State penal institutions who have unpaid fines at the time they are found otherwise eligible for parole. Under the rule, to become effective July 1 “all [such] fine cases, upon proof of indigency will be paroled upon condition that the fines be paid in installments in the community.” It appears also that Lavelle will have worked out his fine on July 21, 1969. We assume that on July 1 the Board will reconsider Lavelle’s situation and decide whether to give him the option of devoting the remaining 20 days to the complete discharge of the balance of his fine, or of being released to pay off the remaining $100 in reasonable weekly installments.

Eor the reasons indicated the judgment of the Appellate Division is affirmed. «

This case and State v. Allen involving similar issues were argued together and decided the same day. State v. Allen is reported in 104 N. J. Super. 187 (App. Div. 1969). The short per curiam opinion in State v. Lavelle is based on Allen and is unreported.

Until a few years ago the statutory rate was $3 a day. In 1961 this Court’s Committee on Criminal Procedure expressed the view that it should be considerably higher. (Report p. 27). The Legislature increased it to $5 a day. Considering the cost of maintaining a prisoner in confinement and the Parole Board’s preliminary finding that he is ready for street parole but for the unpaid fine, further consideration of the adequacy of the $5 per day credit might be in the public interest.

We note in this regard that several courts in somewhat related contexts have held that no denial oí constitutional rights is involved when an indigent defendant is imprisoned to satisfy payment of a fine. Wade v. Carsley, 221 So. 2d 725 (Miss. Sup. Ct. April 14, 1969); People v. Williams, 41 Ill. 2d 511, 244 N. E. 2d 197 (Ill. Sup. Ct. 1969); United States ex rel. Privitera v. Kross, 239 F. Supp. 118 (S. D. N. Y.), affirmed 345 F. 2d 533, certiorari denied 382 U. S. 911, 86 S. Ct. 254, 15 L. Ed. 2d 163 (1965); but cf. People v. Saffore, 18 N. Y. 2d 101, 271 N. Y. S. 2d 972, 218 N. E. 2d 686 (1966).