Opinion
DOCKET NO. A-4944-13T3
04-22-2016
MICHAEL CHASE, Appellant, v. NEW JERSEY STATE PAROLE BOARD, Respondent.
Michael Chase, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Andrew J. Sarrol, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Nugent. On appeal from the New Jersey State Parole Board. Michael Chase, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Andrew J. Sarrol, Deputy Attorney General, on the brief). PER CURIAM
Inmate Michael Chase appeals from the May 28, 2014 final agency decision of respondent New Jersey State Parole Board (the Board) denying him parole and establishing a 120 month Future Eligibility Term (FET). We affirm.
Sentenced on October 19, 1984, to concurrent state prison terms of life with thirty years of parole ineligibility for first-degree murder, and five years for possession of a weapon for an unlawful purpose, appellant became eligible for parole on February 10, 2014. On September 12, 2013, a hearing officer referred the matter to a two-member Board panel. On October 3, 2013, the two-member Board panel denied appellant parole and referred the matter to a three-member Board panel to establish a FET. On December 11, 2013, the three-member panel established a 120 month FET. Appellant appealed to the full Board, which affirmed the decisions of the two-member and three-member panels in a written final agency decision dated May 28, 2014.
The two-member Board panel determined a substantial likelihood existed appellant would commit a new crime if released on parole. The panel based its decision on several factors, including: numerous, persistent, and serious institutional disciplinary infractions, which were consistent with appellant's criminal record; and insufficient problem resolution, specifically, lack of insight into his criminal behavior. According to the panel's notice of decision, these factors were evident during the panel interview and were documented in the case file, confidential material, and a professional report. Although the panel found mitigating factors, such as participation in programs specific to behavior and average institutional reports, it concluded appellant continues to be "a serious concern for future charges."
The three-member Board panel reached the same conclusion. The panel explained that a comprehensive review of the entire record made clear appellant "continue[s] to remain a substantial threat to public safety."
Additionally, the panel "determined that a [FET] in excess of the administrative guidelines was appropriate." In its comprehensive written decision, the panel explained that "even more than [thirty] years removed from [the homicide], [appellant] still [had] trouble confronting and acknowledging [his] actions." Citing appellant's equivocation about the crime during his interview, the panel expressed greater concern with appellant's attitude in refusing to discuss the offense in settings other than the parole hearing, as well as his failure to credibly differentiate between who he was at the time of the crime and who he is now. Lastly, the three-member panel was disturbed by appellant's unwillingness to participate in programs intended to give him insight into his criminal conduct and the need for behavior modification. This was particularly troublesome in view of appellant's history of institutional infractions.
The three-member Board panel remained unconvinced appellant had "explored, let alone addressed, any of the underlying issues that left [him] so focused on 'getting high' that [he] murdered a man in an effort to obtain money." The panel found appellant's "lack of desire to participate in any counseling . . . demonstrates the attitude of an individual who not only behaves in the manner that he does, but is incapable and/or unwilling to come to realize the nature and extent of his criminal and maladaptive behavior."
The panel concluded a 120 month FET was warranted because appellant: had been unable to identify the causes and develop adequate insight into his violent criminal personality characteristics; failed to appropriately and adequately address the causes of his criminal behavior by participating in programs or by other methods that would demonstrate satisfactory evidence of rehabilitative progress; and had continued and in some measure escalated his anti-social, maladaptive behavior during his incarceration by committing numerous serious institutional infractions. For those reasons, the three-member panel established a 120 month FET, reduced by 996 days commutation credit, resulting in a new parole eligibility date of May 20, 2021.
On appellant's administrative appeal, the full Board affirmed the two and three-member panel decisions. Appellant argued: the panels failed to document that a preponderance of evidence indicates a substantial likelihood appellant would commit a new crime if released on parole; a Board panel member demonstrated a personal interest, prejudice or bias that affected the decision; and the Board panels failed to consider mitigating circumstances relevant to appellant's institutional disciplinary infractions. Appellant asserted he had developed remorse for his crimes and for the victim's family, had continued to strive to correct his behavior and to rehabilitate himself, and had experienced the restoration of 413 days of previously lost commutation time. Lastly, appellant contended the three-member Panel's decision contravened Board policy by excluding "the possibility of parole to a halfway house, an 'intensive supervision program,'" or other alternatives to imprisonment.
In its written decision, the Board carefully reviewed and rejected each of appellant's arguments. The Board concluded:
Based upon a consideration of the facts cited above, the Board finds that the Board Panel has considered the aggregate of information pursuant to N.J.A.C. 10A:71-3.11 and fully documented and supported its decision pursuant to N.J.A.C. 10A:71-3.18(f). In assessing your case, the Board concurs with the determination of the two-
member Board Panel that a preponderance of evidence indicates that there is a substantial likelihood that you will commit a new crime if you are released on parole at this time. The Board also concurs with the determination of the two-member Board Panel that a [FET] established pursuant to N.J.A.C. 10A:71-3.21(a) and (c) is clearly appropriate due to your lack of satisfactory progress in reducing the likelihood of future criminal behavior and also concurs with the determination to refer your case to a third Board member for the establishment of a [FET]. Further, the Board concurs with the determination of the three-member Board Panel to establish a [FET] pursuant to N.J.A.C. 10A:71-3.21(d) and, pursuant to N.J.A.C. 10A:71-3.21(d)(4), the particular reasons for the establishment of said term as set forth in the Notice of Decision. Accordingly, the Board affirms the Board Panel's October 3, 2013 decision to deny parole and refer your case to the three-member Board Panel to establish a [FET], and the three-member Board Panel's December 11, 2013 decision to establish a one hundred and twenty (120) month [FET]. You will be scheduled for a subsequent parole release hearing when it is appropriate.
On appeal, appellant argues:
POINT I
APPELLANT HAS ALREADY SERVED THE PUNITIVE PORTION OF HIS SENTENCE AND THERE IS NOTHING IN THE RECORDS TO SUGGEST THAT A SUBSTANTIAL[] LIKELIHOOD EXIST[S] THAT APPELLANT WILL COMMIT A NEW CRIME IF RELEASED ON PAROLE AT THIS TIME, ESPECIALLY WHEN APPELLANT HAS NO ADULT AND/OR JUVENILE RECORD, THEREFORE, THE DECISION OF THE N.J. STATE PAROLE BOARD TO DENY HIM PAROLE MUST BE REVERSED.
POINT II
APPELLANT CONTENDS THAT FOR THE N.J. STATE PAROLE BOARD TO ESTABLISH A 120 MONTH FET IS CLEARLY INAPPROPRIATE AND MUST BE REVERSED TO IMPOSE AN APPROPRIATE TERM IN CONFORMITY WITH THE LAW.
In his reply brief, appellant enumerates seven mitigating factors and argues these factors demonstrate the Board's establishment of a 120 month FET is excessive and unreasonable. He also claims the Board in its opposing brief mistakenly double counted disciplinary infractions and inappropriately counted successful suspended sentences.
Our review of the Board's decisions is deferential. That is so because the Board's decisions are "individualized discretionary appraisals," Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)), and are presumed to be valid. See In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994). We will not disturb a Board's determination unless it is arbitrary, capricious, or unreasonable; it is unsupported by sufficient credible evidence on the record; or it violates legislative policies. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998). The burden is on the inmate to demonstrate the Board's actions were unreasonable. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994).
If the crime for which an inmate is incarcerated occurred before August 19, 1997, "the Board panel shall determine whether . . . by a preponderance of the evidence . . . there is a substantial likelihood that the inmate will commit a crime under the laws of the State of New Jersey if released on parole." N.J.A.C. 10A:71-3.10(a). N.J.A.C. 10A:71-3.21(d) states, "[a] three-member Board may establish a future parole eligibility date which differs from that required by the provisions of [N. J.A.C. 10A:71-3.21(a)] . . . if the future parole eligibility date which would be established pursuant to such subsection[] is clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior." N.J.A.C. 10A:71-3.21(d).
Having considered appellant's arguments in light of the record and applicable legal principles, we affirm, substantially for the reasons set forth in the Board's written decision. The decision is supported by sufficient credible evidence on the record as a whole, R. 2:11-3(e)(1)(D), and the record discloses no basis for concluding the final decision was "arbitrary, capricious or unreasonable." Trantino supra, 166 N.J. at 171-72.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
N.J.A.C. 10A:71-3.21(a)(1) establishes a future parole eligibility schedule of an additional twenty-seven months for a prison inmate serving a sentence for murder.