Opinion
DOCKET NO. A-3992-13T3
06-08-2016
MICHAEL JOHNSON, Appellant, v. NEW JERSEY STATE PAROLE BOARD, Respondent.
Michael Johnson, appellant pro se. John J. Hoffman, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Leone. On appeal from the New Jersey State Parole Board. Michael Johnson, appellant pro se. John J. Hoffman, 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 Michael Johnson appeals the February 12, 2014 final administrative decision of the New Jersey Parole Board (Board) denying parole and establishing a 24-month future eligibility term (FET). We affirm.
I.
On February 8, 1998, when appellant was sixteen years old, he committed two burglaries. In the course of the second burglary, appellant and an accomplice broke into to an elderly man's house. While appellant searched the house for money and guns, his accomplice severely beat the elderly homeowner. Police discovered the victim unconscious in his kitchen, lying face down in a pool of blood. He was flown by helicopter to Cooper Medical Hospital, where he later succumbed to his injuries.
Appellant was questioned by police at his home and denied involvement in the crimes. A search of appellant's bedroom turned up a pair of shoes with blood on them. Appellant was arrested, and subsequently confessed to his participation in the robberies and his complicity in the assault.
On October 2, 1998, appellant was waived into Superior Court for prosecution for murder as an adult. In March 2000, appellant pled guilty to an amended charge of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(c), and second-degree and third-degree burglary, N.J.S.A. 2C:18-2(a)(1). Appellant was sentenced to seventeen years in prison, subject to a mandatory minimum term of 85% before being eligible for parole under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). In January 2001, the sentencing court amended appellant's term to include the five-year mandatory period of parole supervision required by NERA. N.J.S.A. 2C:43-7.2(c).
On July 21, 2012, appellant was released to mandatory parole supervision after completing his mandatory minimum term. On February 13, 2013, a warrant was issued and appellant was taken into custody for violating parole. On March 7, 2013, a Board hearing officer found that appellant had violated the conditions of his mandatory parole supervision by: failing to refrain from the use of controlled dangerous substances (CDS) by admitting the repeated use of marijuana; admittedly failing to participate in an appropriate substance abuse counseling program; and admittedly failing to participate in mental health counseling. The hearing officer recommended appellant continue parole with placement into the Stages to Enhance Parolee Success (STEPS) Program — a network of community-based residential programs that provide specialized supportive reentry services to address the needs of parolees — followed by placement in the Electronic Monitoring Program (EMP).
On March 13, 2013, a two-member Board panel reviewed the violation hearing. The panel agreed appellant had violated his parole conditions, but rejected the hearing officer's recommendation to continue parole in the STEPS program followed by the EMP. Instead, the panel revoked appellant's parole, imposing a nine-month FET. The panel found that revocation of appellant's parole was appropriate, despite the hearing officer's recommendation, because: (1) the underlying criminal offenses were very serious; (2) appellant's use of CDS and failure to attend treatment were serious violations of parole; (3) the underlying criminal offenses occurred while appellant was intoxicated; and (4) appellant's parole officer recommended revocation because appellant "was not compliant on supervision and is a danger to the community."
On August 21, 2013, the full Board affirmed the panel's decision to revoke appellant's parole and establish a nine-month FET. The Board noted that all mitigation information offered by appellant had been considered by the panel and no new mitigation information was raised on appeal. Appellant did not appeal the Board's decision.
Appellant was next eligible for parole on November 12, 2013. On August 30, 2013, appellant received an initial hearing in front of a hearing officer, who referred the matter to a panel for a hearing pursuant to N.J.A.C. 10A:71-3.15(b).
On September 13, 2013, a two-member Board panel denied parole and established a twenty-four-month FET. The panel gave the following reasons: appellant had an extensive prior criminal record; prior incarceration and prior opportunities on probation failed to deter his 1998 criminal behavior; he was not serious in complying with his conditions of parole after more than fourteen years in prison; mandatory parole supervision was revoked for using illegal drugs; and his risk evaluation assessment indicated that he posed a "medium" risk to recidivate. Moreover, after interviewing appellant, the panel found appellant had insufficient problem resolution, lacked insight into his criminal behavior, minimized his conduct, and needed to address criminal thinking and improve his decision making.
On February 12, 2014, the full Board affirmed the panel's decision, finding that "a preponderance of evidence indicates that there is a reasonable expectation that [appellant] would violate the conditions of parole if released on parole at this time." The Board also found that the panel had followed the proper standard, had based its decision on the aggregate of available information, and had fully documented and supported its decision.
Appellant now appeals from the Board's February 12, 2014 decision.
In his brief, appellant additionally argues that the panel decision in March 2013 should have continued his parole and placed him in the STEPS Program, as recommended by the hearing officer, rather than revoking his parole and imposing a nine-month FET. However, appellant's notice of appeal only sought to appeal the Board's February 12, 2014 decision, and was not timely regarding the March 2013 panel decision or the Board's August 21, 2013 affirmance of that decision. As such, the panel's decision to revoke appellant's parole is not properly before us. --------
II.
Our "limited scope of review" of decisions by the Board is "grounded in strong public policy concerns and practical realities." Trantino v. N.J. State Parole Bd., 166 N.J. 113, 200, modified, 167 N.J. 619 (2001). "The decision of a parole board involves 'discretionary assessment[s] of a multiplicity of imponderables[.]'" Id. at 201 (alteration in original) (quoting Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979)). "[T]he Parole Board makes 'highly predictive and individualized discretionary appraisals.'" Acoli v. N.J. State Parole Bd., 224 N.J. 213, 222 (2016) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 358-59 (1973)). Consequently, our courts may overturn a Parole Board's decisions only if "they are arbitrary, capricious or unreasonable or are not 'supported by substantial credible evidence in the record as a whole.'" Trantino, supra, 166 N.J. at 191-92 (emphasis and citation omitted); see Acoli, supra, 224 N.J. at 222-23. We must hew to our standard of review.
III.
Appellant contends that the preponderance of the evidence did not show a substantial likelihood that he would violate parole if released. Prior to 1997, an inmate had to be released on parole unless there was "a substantial likelihood that the inmate will commit a crime." N.J.S.A. 30:4-123.53(a) (1979). However, the Legislature amended that statute to provide that, if the crime for which an inmate is incarcerated took place after August 19, 1997, the Board can deny parole if a preponderance of the evidence indicates that "there is a reasonable expectation that the inmate will violate conditions of parole . . . if released on parole at that time." N.J.S.A. 30:4-123.53(a); see Trantino v. N.J. State Parole Bd., 331 N.J. Super. 577, 605 (App. Div. 2000), aff'd as modified, 166 N.J. 113 (2001).
The Board properly found a reasonable expectation that appellant would violate a condition of parole. In reaching its decision, the Board noted specific factors in appellant's personality and history. These factors included appellant's underlying offense, extensive criminal history, and serious substance abuse problems. The Board noted the failure of his prior incarceration and opportunity on probation to deter criminal behavior, and the cause of revocation of his mandatory parole supervision. The Board further relied on a psychiatric risk assessment evaluation that found appellant posed a medium risk to recidivate. The Board also cited the Board panel's finding, after interviewing appellant, that he lacked insight into his criminal behavior, minimized his conduct, and needed to address his criminal thinking and decision-making.
Appellant argues that he could not receive a twenty-four-month FET because he had already received a nine-month FET, he had not committed any infractions during that nine-month FET, and all of the information relied on in imposing the twenty-four-month FET was known at the time he received the nine-month FET. Appellant misapprehends both the law and the facts.
At a parole revocation hearing, a Board panel which revokes parole must establish an FET that is no longer than nine months from the date an adult parolee was placed in custody on a parole warrant. N.J.A.C. 10A:71-7.17B(a)(2). However, at a subsequent parole release hearing, a Board panel which decides not to grant parole must establish an FET which is based on the severity of the underlying crime; defendant's underlying crime of manslaughter generally requires an FET of twenty-seven months. N.J.A.C. 10A:71-3.21(a)(1).
Thus, no additional information was needed for the Board panel to establish an FET of up to twenty-seven months before appellant would again be considered for parole. "Once the initial FET is imposed following revocation of parole, the Board is at liberty to evaluate defendant as it would any other inmate seeking parole." Hare v. N.J. State Parole Bd., 368 N.J. Super. 175, 178 (App. Div.), certif. denied, 180 N.J. 452 (2004). "There is no reason why a Board panel denying parole at a subsequent release hearing should be bound by the FET determined by the former Board panel upon revocation of parole." Id. at 179.
Moreover, there was additional information available to the parole release panel that was not available at the parole revocation hearing, namely the panel's interview of appellant. The panel and the Board specifically relied on the panel's observations regarding appellant's lack of insight into his criminal behavior, continued minimization of his past conduct, and his need to address his criminal thinking and decision-making. "We are thus required to accord deference to the findings of the administrative agency that are substantially influenced by its opportunity to hear and see the witness[] and to have the 'feel of the case,' an opportunity which a reviewing court cannot enjoy." Trantino, supra, 166 N.J. at 200 (citation omitted).
Appellant contends that his repeated use of marijuana does not show "criminal thinking." However, possession of marijuana remains an offense under New Jersey law. State v. Myers, 442 N.J. Super. 287, 298 (App. Div. 2015), certif. denied, 224 N.J. 123 (2016); see N.J.S.A. 2C:35-10(a).
Appellant contends the Board failed to consider that he attended college courses and initially attended drug and mental health counseling while on parole, and that he had no infractions during his nine-month FET. However, the Board and the panel did acknowledge as mitigating factors that appellant had been infraction-free during his nine-month FET, and that he had attempted to enroll and participate in programs, but was not admitted. Though the Board did not specifically mention appellant's attendance at college or initial attendance at therapy, it had that information before it, and it generally stated it had considered mitigating factors. The Board was not required to list specifically every factor it considered. Moreover, the Board observed that appellant "appears [to] have made some progress," and upheld the panel's decision to impose less than the presumptive twenty-seven-month FET. See N.J.A.C. 10A:71-3.21(c) (giving the panel the discretion to adjust an inmate's FET by up to nine months when warranted by, e.g., characteristics of the inmate). It was not arbitrary or capricious for the Board not to grant an additional reduction of appellant's FET based on defendant's brief attendance at therapy and college courses before he violated his parole.
Appellant further contends that pursuant to N.J.S.A. 30:4-123.51(e), "[i]f the court finds that the offender's conduct was not characterized by a pattern of repetitive, compulsive behavior . . . the offender shall become primarily eligible for parole after having served any judicial or statutory mandatory minimum term[.]" However, N.J.S.A. 30:4-123.51(e) is inapplicable here because it applies only to initial parole eligibility determinations for inmates sentenced for the specific sex offenses listed in N.J.S.A. 2C:47-1.
Thus, we hold that the Board's decision to deny parole and impose a twenty-four-month FET was not arbitrary, capricious or unreasonable, and was supported by sufficient, credible evidence in the record.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION