Smith v. N.J. State Parole Bd.

Full title: EARL SMITH, Appellant, v. NEW JERSEY STATE PAROLE BOARD, Respondent.

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Apr 22, 2015

DOCKET NO. A-2502-12T2 (App. Div. Apr. 22, 2015)

Opinion

DOCKET NO. A-2502-12T2

04-22-2015

EARL SMITH, Appellant, v. NEW JERSEY STATE PAROLE BOARD, Respondent.

Earl Smith, 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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Nugent. On appeal from the New Jersey State Parole Board. Earl Smith, 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

Earl Smith appeals the New Jersey State Parole Board's decision denying parole and setting an eighty-four-month future eligibility term (FET). We affirm.

The record reveals Smith's lengthy criminal history. After being convicted of aggravated assault, robbery, weapon offenses, and conspiracy to commit robbery, Smith was sentenced in 2004 to a sixteen-year prison term, subject to a six-year parole disqualifier. He has been disciplined for ten institutional infractions, including eight asterisk charges, and he was denied parole when first becoming eligible in 2010.

On February 10, 2012, a two-member panel again denied parole and referred the case to a three-member panel, which affirmed and imposed an eighty-four month FET. The three-member panel reasoned the FET was necessary because Smith had "not shown the requisite amount of rehabilitative progress in reducing the likelihood of future criminal activity."

The Board affirmed the panel's decision by way of a thorough written decision, and Smith appeals to this court, arguing:

I. THE 1979 PAROLE ACT BARS CONSIDERATION OF ANYTHING OTHER THAN ENACTED UNDER ITS STATUTES AND REGULATIONS.



II. THE APPELLANT HAS A PROTECTED LIBERTY INTEREST AND PROCEDURAL RIGHTS UNDER THE UNITED STATES CONSTITUTION.



III. THE PAROLE PANEL AND FULL BOARD RELIED SOLELY ON A TAINTED PRE-SENTENCE REPORT IN VIOLATION OF APPELLANT['S] DUE PROCESS RIGHTS.



IV. THE PAROLE BOARD VIOLATED APPELLANT['S] FIFTH, SIXTH, AND FOURTEENTH AMENDMENT RIGHTS.

V. RISK ASSESSMENT EVALUATION IS BARRED FROM CONSIDERATION UNDER THE 1979 PAROLE ACT, POST FACTO CLAUSE.



VI. LACK OF INSIGHT AND INSUFFICIENT PROBLEM RESOLUTION IS PRECLUDED FROM THE PAROLE ACT OF 1979.



VII. [APPELLANT] WAS NOT [PROVIDED] WITH NON-CONFIDENTIAL AND CONFIDENTIAL DOCUMENTS RELIED ON IN [THE] PANEL AND FULL BOARD DECISIONS IN VIOLATION OF HIS DUE PROCESS RIGHTS.



VIII. THE PAROLE BOARD WAS BARRED FROM CONSIDERING THE SERIOUSNESS AND GRAVITY OF THE OFFENSE UPON APPELLANT CHARACTERISTICS IN VIOLATION OF HIS DUE PROCESS RIGHTS.



IX. THE PAROLE BOARD RECYCLED AGGRAVATING FACTORS SEVERAL TIMES IN VIOLATION OF APPELLANT['S] DUE PROCESS RIGHTS.



X. THE THREE MEMBER PANEL IMPOSED A[N] EXCESSIVE FUTURE ELIGIBILITY TERM DENYING APPELLANT THE BENEFIT OF A PAROLE HEARING IN VIOLATION OF HIS DUE PROCESS RIGHTS.



XI. SETTING A LENGTHY FUTURE ELIGIBILITY TERM UNDER N.J.A.C. 10A:71-3.21(D) BEYOND APPELLANT['S] MAXIMUM SENTENCE BY THE THREE MEMBER PANEL VIOLATES HIS EIGHTH AND FOURTEENTH AMENDMENT RIGHTS.



XII. THE PAROLE BOARD HAS FAILED TO CONSIDER APPELLANT['S] MITIGATING FACTORS IN VIOLATION OF HIS DUE PROCESS RIGHTS.



XIII. THE PAROLE PANEL USE[D] AN IMPERMISSIBLE CRITERIA PROMISE OF EMPLOYMENT TO DENY APPELLANT PAROLE RELEASE IN VIOLATION OF HIS DUE PROCESS RIGHTS.



XIV. THE APPELLANT WAS ENTITLED [TO] CONSIDERATION [OF] A RESIDENTIAL FACILITY-HALFWAY BACK PROGRAM.

XV. THE PAROLE BOARD FAILED TO RECONSIDER THE [APPELLANT'S] PROCEDURAL DUE PROCESS RIGHTS.

We find insufficient merit in these arguments to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). Having closely examined the record in light of the arguments posed, we find nothing "arbitrary, capricious or unreasonable," Trantino v. N.J. State Parole Bd., 166 N.J. 113, 191-92 (2001), and we are satisfied this decision was based "on sufficient credible evidence in the whole record," Id. at 172 (quoting Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24 (1998)) (internal quotation marks omitted). We, thus, defer to the factual findings and expertise of the Board.

Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION