Opinion
DOCKET NO. A-0184-12T3
03-17-2014
RONALD PERRY, Appellant, v. NEW JERSEY STATE PAROLE BOARD, Respondent.
Ronald Perry, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, 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NOT FOR PUBLICATION WITHOUT THE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 Sapp-Peterson and Lihotz.
On appeal from the New Jersey State Parole Board.
Ronald Perry, appellant pro se.
John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief). PER CURIAM
Appellant Ronald Perry appeals from a July 25, 2012 determination of the New Jersey State Parole Board (the Board), denying his appeal from the decision of a two-member panel, which denied parole and established a twenty-four month future parole eligibility term (FET), in accordance with N.J.A.C. 10A:71-3.21(a). Appellant argues:
POINT IWe reject these assertions and affirm.
[Eighth] Amendment of the U.S. Constitution "Cruel and Unusual Punishment." Based on the []Robinson v. California, 370 U.S. 660 (1962) case where the court ruled that punishing someone for an addiction is like punishing someone for having a mental illness or the common cold.
POINT II
[Fifth] and [Fourteenth] Amendments of the U.S. Constitution "Due Process" — The Due Process Clause(s) serve[] two basic goals: one is through the use of fair procedures get more accurate results, and the other goal is to make people feel that the government has treated them fairly.
Appellant is confined at South Woods State Prison, serving an aggregate eight-year sentence pursuant to negotiated plea agreements, following conviction for offenses occurring on three separate dates in three municipalities over an eight-month period in 2009, including third-degree terroristic threats, N.J.S.A. 2C:12-3(a), second-degree unlawful attempt to take a police weapon, N.J.S.A. 2C:5-1 and 2C:12-11, third-degree resisting arrest, N.J.S.A. 2C:29-2(a), fourth-degree assault by auto, N.J.S.A. 2C:12-1(c), and driving while intoxicated, N.J.S.A. 39:4-50.
Appellant first became eligible for parole on July 26, 2012. A two-member Board Panel considered appellant's case and denied parole. In its consideration, the Board Panel noted four mitigating factors: appellant was infraction free, participated in and attempted to participate in institutional programs, and the achievement of minimum custody status. However, the Board Panel found a reasonable expectation appellant would violate conditions of parole if released, identifying appellant's extensive and repetitive criminal record, which included twenty-one prior convictions in three states; a juvenile record; numerous traffic violations and municipal offenses; he was currently incarcerated for committing multiple offenses; he failed to comply with seven prior opportunities for probation; his past incarceration and participation in probation failed to mitigate recidivism, noting some of the current offenses were committed two weeks following his release from prison after completing the maximum sentence; he failed to exhibit sufficient problem resolution skills, lacked insight into his criminal behavior, and minimized his conduct; his repetitive commission of the same offense reflected no regard for the laws of society; and he failed to address his alcohol dependence. The Board Panel also relied on appellant's psychological evaluation and a reported risk assessment score of 35, signifying a high risk for recidivism.
Appellant filed an appeal challenging the factual findings of the Board Panel as insufficient to support its conclusions. His case was considered by the full Parole Board on July 25, 2012. The Board determined the denial of parole and the twenty-four month FET was supported by the evidence in the record and the preponderance of the evidence supports the conclusion there is a reasonable expectation appellant would violate the conditions of parole if released.
Our scope of review is very limited. Administrative decisions of the Board are "grounded in strong public policy concerns and practical realities." Trantino v. N.J. State Parole Bd., 166 N.J. 113, 200 (2001) (Trantino V). "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 & Corr. Complex, 442 U.S. 1, 10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979)). The Board has broad, but not unlimited, discretionary power. Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971).
In our review, we do not disturb the factual findings of the Board if they "could reasonably have been reached on sufficient credible evidence in the whole record." Trantino V, supra, 166 N.J. at 199 (quoting Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24 ( 1998) (Trantino IV)). See also McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002) (noting "[a]dministrative actions, such as parole decisions, must be upheld where the findings could reasonably have been reached on the credible evidence in the record"). Further, we remain mindful that "[t]o a greater degree than is the case with other administrative agencies, the Parole Board's decision-making function involves individualized discretionary appraisals." Trantino V, supra, 166 N.J. at 201 (citation omitted). We will not second-guess the Board's application of its considerable expertise unless we find the decision was arbitrary and capricious. Ibid. The burden is on the appellant to prove the Parole Board acted unreasonably. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994).
Parole reviews are guided by N.J.S.A. 30:4-123.53, which states in pertinent part:
An adult inmate shall be released on parole at the time of parole eligibility, unless information supplied in the report . . . or developed or produced at a hearing . . . indicates by a preponderance of the evidence that the inmate has failed to cooperate in his or her own rehabilitation or that there is a reasonable expectation that the inmateThe courts have interpreted "reasonable expectation" as a "substantial likelihood" the inmate would violate parole if released. See Kosmin v. N.J. State Parole Bd., 363 N.J. Super. 28, 41 (2003). Further, the Administrative Code provides:
will violate conditions of parole . . . if released on parole at that time.
(a) Parole decisions shall be based on the aggregate of all pertinent factors, including material supplied by the inmate and reports and material which may be submitted by any persons or agencies which have knowledge of the inmate.
(b) The . . . Board . . . may consider any other factors deemed relevant[.]
[N.J.A.C. 10A:71-3.11.]
A decision to grant parole release is multi-faceted, and considers various factors, some of which are objectively verifiable along with a discretionary assessment of the inmate's likely future behavior based upon the Board's experience. See Greenholtz, supra, 442 U.S. at 9-10, 99 S. Ct. at 2105, 60 L. Ed. 2d at 677; Puchalski v. N.J. State Parole Bd., 104 N.J. Super. 294, 299-300 (App. Div.), aff'd by 55 N.J. 113 (1969), cert. denied, 398 U.S. 938, 90 S. Ct. 1841, 26 L. Ed. 2d 270 (1970). "Common sense dictates that its prediction as to future conduct and its opinion as to compatibility with the public welfare be grounded on due consideration of the aggregate of all of the factors which may have any pertinence." Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 360 (1973). Other factors considered by the Parole Board as provided by N.J.A.C. 10A:71-3.11(b), included: the nature and pattern of previous convictions; adjustment to previous probation, parole, and incarceration; aggravating and mitigating factors surrounding the offense; parole plans and the investigation thereof; and evidence presented by the appropriate prosecutor's office. N.J.A.C. 10A:71-3.11(b).
Evaluated by these well-established review standards, we reject appellant's challenges to the facts considered by the Board in reaching its determination and conclude the denial of parole was grounded on the substantial evidence in the record and the reasoned exercise of the Board's broad discretion. Monks, supra, 58 N.J. at 242.
The Board's conclusion that appellant posed a high risk of recidivism if released was reached after weighing the four mitigating factors against appellant's past criminal record, his failure to comply with prior parole and probation opportunities, his continued commission of criminal offenses despite incarceration, unmitigated substances abuse, the assessment following the parole interview reflecting appellant's lack of insight regarding his criminal conduct, insufficient development of problem solving behavior, and the expert opinion based on a psychological evaluation.
We also reject as unfounded appellant's claims of deprivation of constitutional protections under the fifth, eighth and fourteenth amendments. U.S. Const. amend. V, VIII, and XIV. We add these brief comments.
Appellant first suggests parole was denied because he suffers from substance abuse relying on Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962), wherein the United States Supreme Court struck down as unconstitutional a California statute making it illegal to be addicted to narcotics. Id. at 667, 82 S. Ct. at 1420-21, 8 L. Ed. 2d at 763. The argument lacks sufficient merit to warrant discussion in our opinion. R. 2:11-3(e)(1)(E). The Board properly noted appellant's substance abuse contributed to his criminal conduct. Parole was denied not because appellant was an alcoholic, but because he failed to address his condition, which was necessary to reduce the likelihood of future offenses.
Second, contending he was denied due process, appellant challenges the Board's reliance on confidential information, including the psychological evaluation prepared by its expert and an objection to appellant's parole filed by the Union County Prosecutor. The Board's review of this material is authorized by N.J.S.A. 30:4-123.45(b)(5) (authorizing prosecutors, familiar with the offender, to inform the Board and to submit evidence to the Board), and maintenance of confidentiality if permitted by N.J.A.C. 10A:22-2.7(d) (stating copies of mental health records generated by professional mental health staff shall not be provided to inmates without court order if said evaluative reports, if disclosed, would compromise the safety of the inmate or others, or the security or orderly operation of the correctional facility) and N.J.A.C. 10A:71-2.2(a)(1) (stating information, files, documents, reports, or records concerning an offender's psychiatric evaluation are confidential). The safe operation of a prison must be taken into account when determining the extent of legal process due a prisoner in the consideration of his parole release. Thompson v. N.J. State Parole Bd., 210 N.J. Super. 107, 123 (App. Div. 1986); N.J.A.C. 10A:22-2.7(d).
Appellant was provided a redacted copy of the prosecutor's objection to parole because the sentence's punitive aspects had not been satisfied. Further, as required, the denial of parole included those facts relied upon from the psychological evaluation including appellant's risk assessment score, his lack of problem-solving ability and insight regarding his criminal behavior. Thompson, supra, 210 N.J. Super. at 126.
Finally, in his reply brief, appellant suggests he should have been released to an alcohol treatment facility. See N.J.A.C. 10A:20-4.4 (providing an eligible prisoner may be released into a residential community release program, including a substance abuse treatment program). The broad assertion is unsupported by a parole plan or evidence required to assure such a placement would not present a public risk. See N.J.A.C. 10A:20-4.4. On the other hand, the Board identified facts taken from appellant's psychological evaluation that did not support placement in a residential community program.
The Parole Board acted reasonably when it denied appellant's parole release and extended his FET. The Parole Board did not violate appellant's constitutional rights when it denied appellant's parole release. Additionally, it is unclear if appellant can appeal the Parole Board's decision denying his release into a treatment program. However, given the evidence in the record, the Parole Board acted reasonably when it denied appellant's release into a treatment program.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION