Opinion
A-1576-20
06-03-2022
STEPHEN PERRY, Appellant, v. NEW JERSEY STATE PAROLE BOARD, Respondent.
Stephen Perry, appellant pro se. Matthew J. Platkin, Acting Attorney General, attorney for respondent (Donna Arons, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Submitted May 19, 2022
On appeal from the New Jersey State Parole Board.
Stephen Perry, appellant pro se.
Matthew J. Platkin, Acting Attorney General, attorney for respondent (Donna Arons, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).
Before Judges Mawla and Alvarez.
PER CURIAM
In Perry v. N.J. State Parole Bd., 459 N.J.Super. 186 (App. Div. 2019), we remanded a decision by the New Jersey State Parole Board (Board) denying appellant Stephen Perry parole and establishing a 240-month future eligibility term (FET). We held the Board applied the incorrect statutory standard by retroactively applying a version of N.J.S.A. 30:4-123.56 that became effective after Perry's sentences were imposed. Id. at 189. We directed the Board to apply the pre-amendment version of the statute and "correlate its findings with the length of the FET imposed." Id. at 197. The matter returns with the Board having conducted a hearing and imposing a 216-month FET, which we now affirm.
In our prior decision, we discussed the details of Perry's criminal history, which began in 1976 and included the 1979 murder of a Bergen County Sheriff's officer, for which he has been serving a life sentence. Id. at 189-90. Perry also committed fifty-four infractions during his incarceration, including thirteen serious infractions. The most recent infraction occurred in 2017, when an officer initiated a pat and frisk on Perry and instructed him to look forward and remain still. The officer felt an object in Perry's right pocket, and when the officer tried to retrieve the object, Perry "refused direct orders to remain still and the pat [and] frisk was discontinued." The infraction was downgraded from Refusing to Submit to a Search to Refusing to Obey an Order.
Following our remand, Perry received an initial parole hearing at which a hearing officer referred the matter to a Board panel for a hearing. Perry underwent a mental health evaluation in June 2019, which found "Perry is not likely to be able to function independently due to his long-term incarceration and limited history of legitimately functioning independently in the community. He presents with fair motivation to continue to participate in his rehabilitation." Perry presented "a medium risk for recidivism with a [twenty-eight percent] chance of re-arrest and a [twenty-one percent] chance of reconviction within two years of release." The evaluation found "if paroled, [Perry] would present a HIGH RISK for future violence. [Perry] is likely to be impulsive, unreliable, and irresponsible. He may often show poor judgment and has limited personal resources for coping with stressors which may lead to the potential for violence." Further, Perry's "probable need for substance abuse treatment is '[h]igh.'" Psychological testing corroborated these conclusions.
The evaluation noted Perry's mitigating attributes, which included some employment history, support in the community, and "[e]xpressed motivation to make changes in lifestyle and behavior[.]" However, the evaluation concluded
Perry is a medium risk to engage in future violent behavior, particularly in the community, where [h]is capacity to manage the demands of independent living, in an unstructured and unsupervised setting (the community) in a functionally and law-abiding manner has been minimally prosocial. Of particular concern is [a] history of extreme violence related to drug [addiction], intoxication, and withdrawal.
In December 2019, a two-member panel denied Perry parole and referred the matter to a three-member panel for establishment of an FET outside the guidelines. The panel found Perry "is in the beginning stages of understanding the seriousness of his behavior. However, the . . . infraction in 2017 indicates [he] still needs more in the area of criminal thinking." The panel suggested Perry remain infraction free and obtain a GED.
Perry submitted a mitigation letter contending the 2017 infraction was "an aberration and, viewed in the context of [his] overall accomplishments, an insignificant moment which underscored his growth and maturity." He stated he got married in 2009 and discussed his rehabilitation efforts, including listing the rehabilitative programs he enrolled in and argued these facts demonstrate change. He asserted he was going to take the GED exam soon and outlined his release plans, which included him and his wife moving to Georgia to live with his son. He noted the panel's recognition that he is beginning to understand the seriousness of his behavior and argued he "is not . . . recalcitrant [and was] amenable to a[n] [FET] within the presumptive range of [twenty-seven] to [thirty-six] months."
In March 2020, a three-member panel established a 216-month FET, reiterating the two-member panel's findings. In May 2020, the three-member panel issued a comprehensive thirteen-page written decision detailing its findings. The panel concluded Perry lacked insight into his criminal behavior, "overly emphasized" his previous drug addiction as justification for his prior offense history, and disregarded his personality defects, which impel him to criminal thinking. It further found Perry is "not truly motivated to better . . . and prepare [himself] for community integration." It noted his refusal to attend Alcoholics Anonymous (AA) and reliance on his own methods to remain sober. Based on the new FET, the panel recalculated his parole eligibility date (PED), projecting Perry would be eligible for release in November 2023.
Perry appealed, arguing that the panel violated due process by relying on his lack of insight to impose the FET and that an eighteen-year FET was arbitrary and capricious. Perry also asserted he was entitled to work, commutation, and minimum custody credits, retroactive to 2010.
On December 16, 2020, the Board issued a written decision affirming the panel's decision. It found the panel considered: the facts and circumstances of Perry's offense; his extensive criminal record and repeated offenses; the increasingly serious nature of his crimes; prior opportunities at probation and parole, which were terminated and revoked due to the commission of new offenses; prior incarcerations that did not deter his criminal behavior; and "numerous, persistent, [and] serious" institutional infractions that were consistent with his prior criminal record. The Board found the panel considered the mental health evaluation in finding Perry had "insufficient problem resolution, specifically, . . . lack [of] insight into [his] criminal behavior." It noted the mitigating factors discussed in the panel's decision.
The Board concluded the panel did not violate due process because Perry was afforded a hearing and the opportunity to meet with the panel and answer its questions, the panel reviewed the evidence, "and based its decision on the totality of the information in the administrative record." It saw no evidence supporting Perry's claim the panel's decision was arbitrary and capricious. It concurred with the panel and found an FET within the guidelines "is clearly inappropriate due to [Perry's] lack of satisfactory progress in reducing the likelihood of future criminal behavior." The Board found Perry's arguments lacked merit because
after forty-one . . . years of incarceration, [he was] unable to understand the dynamics of [his] negative
personality defects as they relate to . . . criminal thinking, including . . . extensive and repetitive criminal history leading up to the murder . . . and [he has] not made adequate progress in the rehabilitative process to ensure criminal behavior and decision making does not occur again in the future. The Board finds that the two-hundred-sixteen . . . month [FET] is warranted in consideration of all relevant material facts and is within the guidelines of the Administrative Code.
The Board also agreed with the panel there was a substantial likelihood Perry would commit a new crime if paroled - the standard of N.J.S.A. 30:4-123.56 in effect when Perry was sentenced. It performed a PED calculation reducing the FET by Perry's commutation, work, and reduced custody credits, resulting in a PED of August 30, 2022.
Perry raises the following arguments on appeal:
I: RELYING UPON A LACK OF INSIGHT AS A BASIS TO DENY PAROLE AND IMPOSING AN [EIGHTEEN]-YEAR FET WAS A VIOLATION OF DUE PROCESS.
II: IT WAS AN ARBITRARY AND CAPRICIOUS DECISION TO DENY APPELLANT PAROLE AND IMPOSE AN [EIGHTEEN]-YEAR FET WHEN THE EVIDENTIARY RECORD DOES NOT WARRANT SUCH ACTION.
III: N.J.A.C. 10A:71-3.21(d) VIOLATES THE SEPARATION OF POWERS DOCTRINE AND DUE PROCESS OF LAW AND RENDERS IT UNCONSTITUTIONAL.
A. Separation of Powers Violation.
B. Lack of Independent Schedule Violates Due Process of Law and Renders the [Eighteen]-Year FET an Arbitrary Decision.
C. Severing N.J.A.C. 10A:71-3.21(d) from the Remaining Parole Regulations is an Appropriate Remedy.
IV: FAILING TO AWARD CREDITS (e.g., WORK, COMMUTATION, AND REDUCED CUSTODY) FROM 2010 (DATE INCORRECT STANDARD OF PAROLE WAS FIRST UTILIZED) THROUGH THE CURRENT PERIOD (AFTER APPELLATE DIVISION REVERSED PAROLE DECISION BASED ON AN INCORRECT STANDARD OF PAROLE BEING EMPLOYED).
I.
Our review of a parole board's decision "focuses upon whether the factual findings made by the Parole Board could reasonably have been reached on sufficient credible evidence in the record." Perry, 459 N.J.Super. at 193 (quoting Trantino v. N.J. State Parole Bd., 166 N.J. 113, 199 (2001) (Baime, P.J.A.D. dissenting)). "To a greater degree than is the case with other administrative agencies, the Parole Board's decision-making function involves individualized discretionary appraisals." Ibid. (quoting Trantino, 166 N.J. at 201). We "may overturn the Parole Board's decisions only if they are arbitrary and capricious. Arbitrary and capricious action of administrative bodies means willful and unreasoning action, without consideration and in disregard of circumstances." Ibid. (internal quotations omitted). We must decide:
(1) whether the agency's action violates express or implied legislative policies, i.e., did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[Ibid. (quoting Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24 (1998)).]
II.
In points I and II, Perry challenges the Board's fact findings and argues they are unsupported by the record and do not justify the FET. He asserts the regulations governing parole do not include "lack of insight" as grounds to establish an FET and the Board's consideration of this characteristic exceeded its authority. He argues the Board did not consider the fact that the 2017 infraction was downgraded and improperly found this infraction to be indicative of his inability to follow rules.
The Parole Board is "charged with the responsibility of deciding whether an inmate satisfies the criteria for parole release under the Parole Act of 1979." In re Application of Hawley, 98 N.J. 108, 112 (1984). The Board makes "highly predictive and individualized discretionary appraisals." Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973). "Those appraisals must realistically be recognized to be inherently imprecise, as they are based on 'discretionary assessment[s] of a multiplicity of imponderables, entailing primarily what a [prospective parolee] is and what he [or she] may become rather than simply what he [or she] has done.'" Acoli v. N.J. State Parole Bd., 224 N.J. 213, 222 (2016) (first alteration in original) (quoting Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 10 (1979)). A parole board is tasked with predicting an inmate's future behavior, a decision fraught with swift subjectivity and afforded broad discretion. Puchalski v. N.J. State Parole Bd., 104 N.J.Super. 294, 300 (App. Div. 1969).
N.J.S.A. 30:4-123.45 to -123.79.
In making parole determinations, the Board considers twenty-four factors enumerated in N.J.A.C. 10A:71-3.11(b), "and, in addition, may consider any other factors deemed relevant[.]" "There is no requirement for the Board to consider each and every factor enumerated in the Administrative Code. Rather, the Board must consider the factors applicable in each case." McGowan v. N.J. State Parole Bd., 347 N.J.Super. 544, 561 (App. Div. 2002).
The Board did not exceed its authority in Perry's case by considering his lack of insight. The N.J.A.C. 10A:71-3.11(b) factors are not exhaustive. Moreover, whether a prospective parolee has insight is integral to the Board's assessment of several factors under the regulation, namely, "[p]articipation in institutional programs which could have led to the improvement of problems diagnosed at admission or during incarceration"; "[d]ocumented changes in attitude towards self and others"; "[d]ocumentation reflecting personal goals, personal strengths or motivation for law-abiding behavior"; and "[s]tatements 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." N.J.A.C. 10A:71-3.11(b)(8); (11); (12); (17). Furthermore, other cases have upheld Board decisions finding lack of insight as a basis for parole denial. See McGowan, 347 N.J.Super. at 558.
The length of the FET was also not reversible error. The maximum standard FET for adults serving a murder sentence is thirty-six months. N.J.A.C. 10A:71-3.21(a)(1) and (c). A three-member panel may establish an FET different from the standard "if the [FET, ] which would be established . . . 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). The Board is likewise empowered to differ from the standard FET if it "is clearly inappropriate in consideration of the circumstances of the crime, the characteristics and prior criminal record of the inmate[, ] and the inmate's institutional behavior." N.J.A.C. 10A:71-3.21(e). The Legislature has stated "particular emphasis shall be placed on the severity of the offense for which [the offender] was denied parole and on the characteristics of the offender, such as . . . the prior criminal record of the inmate and the need for continued incapacitation of the inmate." N.J.S.A. 30:4-123.56(a).
The imposition of Perry's 216-month FET was not arbitrary, capricious, or unreasonable because the Board explained its reasoning and "the decision . . . is supported by sufficient credible evidence on the record as a whole." R. 2:11-3(e)(1)(D). The Board's decision did not turn on the 2017 infraction and was based on several additional considerations, including Perry's "personality defects as they relate to [his] criminal thinking," his extensive criminal record, and unsatisfactory rehabilitative progress. Although the 2017 infraction was downgraded, it was characteristic of Perry's unwillingness to adhere to directions even after forty years of incarceration and therefore constituted a valid consideration in setting the FET.
III.
In point III, Perry contends the Board exceeded its statutory responsibility by exercising a judicial power in increasing his life term by an additional eighteen years. He contends this violates the separation of powers doctrine and that a jury should make the fact findings relevant to the eighteen-year FET. Perry claims N.J.A.C. 10A:71-3.21(d) does not contain its own schedule like subsection (a) of the regulation. He asserts N.J.S.A. 30:4-123.56(a) requires the Board to develop FET schedules and therefore N.J.A.C. 10A:71-3.21(d) is ultra vires, arbitrary and capricious, and must be invalidated. Perry argues he received varying FETs based on the Board's assessment of the same factors, demonstrating the arbitrary and capricious nature of the process. He claims that severing N.J.A.C. 10A:71-3.21(d) from the parole regulations would remedy the regulation's unconstitutionality.
"It is well-established that within limits the [L]egislature may delegate its authority to a governmental agency." Twp. of Mount Laurel v. Dep't of Pub. Advoc., 83 N.J. 522, 532 (1980). "As long as the discretion of administrative officers is 'hemmed in by standards sufficiently definitive to guide its exercise,' the delegation of legislative powers is not unconstitutional." Ibid. (quoting Cammarata v. Essex Cnty. Park Comm'n, 26 N.J. 404, 410 (1958)). N.J.A.C. 10A:71-3.21(d) does not violate the separation of powers because the Legislature expressly delegated authority to "the board [to] develop a schedule of future [PEDs] for adult inmates denied release at their eligibility date." N.J.S.A. 30:4-123.56(a). Moreover, although there is a right to judicial review of a parole decision, "the actual granting or withholding of parole is a function reposing exclusively in the Parole Board, and there is no such thing as judicial parole." Trantino, 166 N.J. at 173.
"[A]n agency's interpretations, whether through regulations or administrative actions, 'cannot alter the terms of a legislative enactment nor can they frustrate the policy embodied in [a] statute.'" Williams v. N.J. Dep't of Corr., 423 N.J.Super. 176, 183 (App. Div. 2011) (second alteration in original) (quoting N.J. Ass'n of Realtors v. N.J. Dep't of Env't Prot., 367 N.J.Super. 154, 159-60 (App. Div. 2004)). Here, the Board complied with the legislative mandate and established the FET schedules set forth in N.J.A.C. 10A:71-3.21(a). The fact that N.J.A.C. 10A:71-3.21(d) permits the Board to establish an FET beyond the schedules in subsection (a) of the regulation does not render the regulation unconstitutional or invalid because it does not alter the terms of the statute or frustrate statutory policy. N.J.A.C. 10A:71-3.21(d) furthers the statutory policy requiring the Board to consider the severity of the offense, the characteristics of the offender, including the prior criminal record, and the need for continued incarceration. N.J.S.A. 30:4-123.56(a). As the Board also notes, N.J.A.C. 10A:71-3.21 has withstood constitutional challenge in federal court. See Johnson v. Paparozzi, 219 F.Supp.2d 635, 642-43 (D.N.J. 2002). We hold likewise.
IV.
Perry's argument that the Board must grant him work, commutation, and reduced custody credits is moot. The Board applied those credits to his 2010 FET and established a PED of August 30, 2022.
Finally, to the extent we have not addressed an argument raised on this appeal, it is because it lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.