Opinion
DOCKET NO. A-3224-13T3
04-26-2016
HENRY SMITH, Appellant, v. NEW JERSEY STATE PAROLE BOARD, Respondent.
Henry Smith, appellant pro se. Robert Lougy, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Rothstadt. On appeal from the New Jersey State Parole Board. Henry Smith, appellant pro se. Robert Lougy, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief). PER CURIAM
Appellant Henry Smith appeals the final administrative action of the New Jersey Parole Board (Board), which denied parole and set a one-hundred-twenty month future eligibility term (FET). We affirm.
Smith was convicted of kidnapping and aggravated assault arising from his attempt to rape a fifteen-year-old girl at knifepoint in 1988. In 1989, he was sentenced to an extended term of life imprisonment with a twenty-five year period of parole ineligibility. At the time of his conviction, Smith's prior criminal record included convictions for murder and sexual assaults. Smith was paroled in connection with two earlier unrelated prison terms, but violated the conditions of his parole on both occasions by committing crimes, including the murder.
On May 28, 2013, Smith became eligible for parole for his 1989 conviction. In anticipation of his parole hearing, evaluations were conducted that found him to be at a high risk of committing another crime if released.
A two-member Board panel considered the evaluations and recommended against parole, citing, among other factors, its determination that there was a substantial likelihood Smith would commit a new crime if released on parole. The panel also relied upon Smith's criminal record, his prior unsuccessful parole experiences, and the fact that prior incarcerations did not deter his later criminal conduct. Further, it noted that Smith suffered from "insufficient problem resolution," as demonstrated by him "justif[ying] his repetitive crimes in his past" and presenting with "current justification" that those crimes involved "either accidental mis-identity" or him having been "the victim of circumstances." The panel also found that Smith "fe[lt] vindicated of his behavior by his past," and that his risk assessment evaluation score of thirty-three indicated he was a high risk to reoffend. The panel considered mitigating factors, including Smith's "participation in institutional programs," his generally "average to above average institutional reports," and his success in achieving "minimum custody status."
The Board referred Smith's matter to a three-member Board panel for establishment of a FET because the two-member panel found that the "presumptive schedule" for FETs "may be inappropriate due to [his] lack of progress." The three-member panel set Smith's FET, stating its reasons in a comprehensive, ten-page written decision.
In its written decision, the panel relied on many of the same reasons as the earlier panel, but provided a detailed and comprehensive discussion as to each factor it considered. The panel summarized its findings by stating that despite Smith's time in prison, he had "been unable to identify the causes of [his] criminal behavior [and] fail[ed] to develop adequate insight into [his] violent criminal personality characteristic." In addition, it found that despite "program participation that [he] ha[d] thus far attended," Smith demonstrated "only . . . minimal insight into the causes/motivations of [his] criminal behavior and decision making." Also, Smith's responses to the panel reflected his "fail[ure] to develop adequate and appropriate insight in recognizing issues that would return [him] to future criminal behavior." Based on its findings, the panel concluded "that setting any term less than a one hundred and twenty (120) month [FET] would be wholly inconsistent with the conclusion that, after twenty-four (24) years of incarceration, [he has] not shown the requisite amount of rehabilitative progress in reducing the likelihood of future criminal activity."
Smith appealed to the Board, which affirmed the panels' determinations in a comprehensive written decision, essentially for the reason expressed by both panels. It is from that determination that he now appeals.
On appeal Smith challenges the denial of parole, relying upon the sentencing court's statement of what age he would be when he would first be eligible for parole, and claiming the FET was punitive. He specifically argues:
ARGUMENT ONE
THE [BOARD] FAILED TO ADHERE TO THE MANDATE SET FORTH BY THE SENTENCING [COURT] STATING: "THIS SENTENCE PROVIDES FOR A MINIMUM OF 25 YEARS IN PRISON, WHICH MEANS THAT SINCE YOU ARE NOW 32 YEARS OF AGE, THAT YOU WOULD NOT BE RELEASED UNTIL YOU ARE 57 YEARS OF AGE."
ARGUMENT TWO
THE [BOARD] VIOLATED APPELLANT'S U.S. CONSTITUTIONAL RIGHTS ACCORDING TO THE 8TH AND 13TH AMENDMENTS AND MY 14TH AMENDMENT DUE PROCESS RIGHTS WHEN THEY PUNISHED ME FOR THE 3RD TIME BY GIVING ME A 120 MONTH [FET] (10 year sentence) USING THE SAME FACTORS SET FORTH WITH THE IMPLEMENTATION OF THE EXTENDED TERM SENTENCE.
At the outset, we find Smith's first argument to be without sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(2).
We begin our consideration of Smith's challenge to his FET by recognizing our limited role in reviewing the final decisions of administrative agencies. In re Stallworth, 208 N.J. 182, 194 (2011). We do not disturb decisions of the Board unless they are "arbitrary, capricious or unreasonable or . . . not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980). Decisions of the Board "are highly 'individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173, modified, 167 N.J. 619 (2001) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). We will not disturb the Board's fact findings if they "could reasonably have been reached on sufficient credible evidence in the whole record." Hare v. N.J. State Parole Bd., 368 N.J. Super. 175, 179 (App. Div.), certif. denied, 180 N.J. 452 (2004). The challenging party carries the burden to demonstrate that 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).
Because Smith committed his offense in 1988, the standard applicable to his parole determination is contained in an earlier version of N.J.S.A. 30:4-123.53, which provided that an inmate shall be released on parole unless it is shown "by a preponderance of the evidence that there is a substantial likelihood that the inmate will commit a crime . . . if released on parole." N.J.S.A. 30:4-123.53(a) (1996). "[T]he punitive aspects of a sentence may no longer be considered as an independent ground for denying parole." In re Application of Trantino, 89 N.J. 347, 372 (1982). Rather, the seriousness of the crime may be weighed "as an element in determining whether the offender's punishment has been adequate to insure his individual progress toward rehabilitation," insofar as it reflects on his or her likelihood to recidivate. Id. at 373-74. The Board must "focus its attention squarely on the likelihood of recidivism." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 565 (App. Div. 2002). The Board's regulations require that the Board and its panels consider a variety of factors in determining whether an inmate should be paroled and, if not, the length of his or her FET. N.J.A.C. 10A:71-3.11(b).
The Board's schedule of FETs for adult inmates is set forth in N.J.A.C. 10A:71-3.21. An inmate who is "serving a sentence for murder, manslaughter, aggravated sexual assault or kidnapping or serving any minimum-maximum or specific sentence in excess of 14 years for a crime not otherwise assigned pursuant to this section shall serve 27 additional months." N.J.A.C. 10A:71-3.21(a)(1). The FET may be increased or decreased by up to nine months "when, in the opinion of the Board panel, the severity of the crime for which the inmate was denied parole and the prior criminal record or other characteristics of the inmate warrant such adjustment." N.J.A.C. 10A:71-3.21(c).
As a result of the 2011 amendment to N.J.S.A. 30:4-123.56, the three-year cap is no longer applicable. L. 2011, c. 67, § 1 (effective May 9, 2011).
Although a panel is authorized to impose a lengthier FET, it may do so only if it determines that the FET established in accordance with the schedule "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). "In making the determination that the establishment of a future parole eligibility date pursuant to [the schedule] is clearly inappropriate, the three-member panel shall consider the factors enumerated in N.J.A.C. 10A:71-3.11." N.J.A.C. 10A:71-3.21(d).
The pertinent factors include:
3. Nature and pattern of previous convictions.
4. Adjustment to previous probation, parole and incarceration.
5. Facts and circumstances of the offense.
6. Aggravating and mitigating factors surrounding the offense.
. . . .
17. Statements by the inmate reflecting on the likelihood that he or she will commit another crime; the failure to cooperate in his or her own rehabilitation; or the reasonable expectation that he or she will violate conditions of parole.
. . . .
23. The results of the objective risk assessment instrument.
[N. J.A.C. 10A:71-3.11.]
Applying these standards, we find insufficient merit in Smith's argument to warrant further discussion in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons set forth by the Board in its written decision. We add only the following brief comments.
In establishing the FET, the three-member panel appropriately considered the factors enumerated in N.J.A.C. 10A:71-3.11, including Smith's record, a confidential appendix, and the pertinent aggravating and mitigating factors. There was sufficient credible evidence in the record for the panel to determine Smith lacked satisfactory progress in reducing the likelihood of future criminal behavior and to impose the extended FET. We conclude that the Board's decision did not violate legislative policy or constitute an abuse of discretion.
In light of the deference owed to the Board, the sufficiency of the evidence in the record, and the completeness of the Board's decision, we have no reason to disturb its determination.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION