Opinion
DOCKET NO. A-4702-11T2
06-24-2014
SAMUEL PETTAWAY, Appellant, v. NEW JERSEY STATE PAROLE BOARD Respondent.
Samuel Pettaway, 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NOT FOR PUBLICATION WITHOUT THE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 Maven and Hoffman.
On appeal from the New Jersey State Parole Board.
Samuel Pettaway, 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 Samuel Pettaway appeals from the March 28, 2012 final decision of the New Jersey State Parole Board (Board) denying his application for parole and establishing a 180-month future eligibility term (FET). Having considered the Board's review and decision on remand, we conclude it fails to adequately articulate a basis for a fifteen-year FET. We are constrained to reverse the FET again, and remand to the Board with instructions to comply with our prior opinion in this matter, Samuel Pettaway v. N.J. State Parole Bd., No. A-4084-09 (App. Div. June 3, 2011).
We will not reiterate the substance of our prior opinion, except to note the following. After a series of crimes committed in the early 1980s, Pettaway was convicted of multiple counts of aggravated assault, armed robbery, theft, kidnapping, robbery, possession of a weapon for an unlawful purpose, aggravated sexual assault while armed, and aggravated arson. When aggregated with the sentence he was already serving for other crimes, Pettaway was sentenced to an overall term of ninety-seven years imprisonment with a twenty-five-year parole disqualifier.
Pettaway first became eligible for parole on September 12, 2008. After a two-member Board panel denied Pettaway's parole application, a three-member Board panel issued its decision denying Pettaway parole, and imposing a fifteen-year FET. On January 27, 2010, the full Board considered Pettaway's administrative appeal and issued a final agency decision affirming the denial of parole and imposition of a fifteen-year FET.
On appeal, we affirmed the denial of parole, concluding the "Board's finding that [Pettaway] was likely to commit another crime if released at the time of his parole denial [was] supported by substantial credible evidence and [was] not arbitrary, capricious or unreasonable." Pettaway, supra, slip op. at 6. We concluded otherwise with respect to the FET. We reasoned the fifteen-year FET was excessive in light of Pettaway's program participation, his young age at the time he committed his crimes, and the fact that he had served twenty-seven years in prison by that time. We also relied on the 2009 amendment to the FET statute, N.J.S.A. 30:4-123.56(a), which limited FETs to a maximum of thirty-six months.
We acknowledged that the amendment had been repealed and was not in effect when Pettaway was denied parole. Pettaway, supra, slip op. at 8. Nevertheless, "the amendment reflect[ed] a legislative judgment that a FET exceeding three years is never appropriate[ ]" Ibid.
After noting that the Board had adopted an FET that exceeded the presumptive FET for aggravated sexual assault, twenty-seven months, N.J.A.C. 10A:71-3.21(a)(1), by "five times that which is allowed under current law," we held that the Board's determination "was not guided by any particular standards, other than a Board judgment that a three-year FET was clearly inappropriate." Pettaway, supra, slip op. at 8 (internal quotation marks omitted). We determined the Board had mistakenly exercised its discretion in imposing a fifteen-year FET, and remanded for the "establishment of an FET of shorter duration." Id. at 9.
On remand, a three-member Board panel again denied parole and re-imposed the fifteen-year FET, and set forth the reasons in a decision dated October 4, 2011. On March 28, 2012, the full Board considered Pettaway's administrative appeal and affirmed the re-imposition of the fifteen-year FET, finding that the three-member Board panel had fully documented and supported its decision pursuant to N.J.A.C. 10A:71-3.18(f). This appeal followed.
On appeal, Pettaway presents one point for our consideration:
THE PAROLE BOARD'S DECISION TO DENY PAROLE AND ASSIGN A FIFTEEN YEAR [] [FET] WAS ARBITRARY AND CAPRICIOUS AND NOT BASED ON A PREPONDERANCE OF EVIDENCE IN THE RECORD THAT A SUBSTANTIAL LIKELIHOOD EXISTS THAT PETTAWAY WILL COMMIT A CRIME IF RELEASED ON PAROLE.
Judicial review of parole determinations is limited to an evaluation of whether the Board acted arbitrarily in rendering its decisions. In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994). The actions of the Board, as an administrative agency, are presumptively valid. Alevras v. Delanoy, 245 N.J. Super. 32, 35 (App. Div. 1990), certif. denied, 126 N.J. 330 (1991). Our review is also limited to a determination of whether the agency's findings could reasonably have been reached on the credible evidence in the record. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). We will set aside an agency decision only "'if there exists . . . a definite conviction that the determination below went so far wide of the mark that a mistake must have been made.'" N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 547 (App. Div. 1998) (quoting 613 Corp. v. N.J. Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)).
The Board's decisions are considered "highly 'individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (Trantino VI) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). Consequently, "the Board 'has broad but not unlimited discretionary powers'" in reviewing an inmate's parole record and rendering a release decision. Ibid. (quoting Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971)); see also Greenholtz v. Nebraska Penal & Corr. Complex Inmates, 442 U.S. 1, 9-10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 ( 1979) ("The parole-release decision . . . depends on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals by the Board members based upon their experience with the difficult and sensitive task of evaluating the advisability of parole release.").
N.J.S.A. 30:4-123.53, which governs Pettaway's application, provides that when an inmate is eligible for parole, he shall be released unless a preponderance of the evidence demonstrates that "there is substantial likelihood that the inmate will commit a crime under the laws of this State if released on parole at such time." In determining parole eligibility, the Board must consider the factors enumerated in N.J.A.C. 10A:71-3.11(b).
The statute was amended in 1997 by L. 1997, c. 213, § 1. However, based on the dates of appellant's offenses, we apply the 1979 version.
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N.J.A.C. 10A:71-3.21(a)(1) establishes a presumptive FET for aggravated sexual assault of twenty-seven months. N.J.A.C. 10A:71-3.21(d) further provides:
A three-member Board panel may establish a future parole eligibility date which differs from that required by the provisions . . . above if the future parole eligibility date which would be established . . . is clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior.
In its final decision, the full Board adopted the findings of the three-member Board panel, which had employed precisely the same factors it employed in 2008, to increase the standard FET from the presumptive twenty-seven months to the fifteen-year FET. Although the Board panel considered our prior decision, it nonetheless found that "a modification of the [FET] [was] not warranted" and was "satisfied that a fifteen (15) year [FET] established in [Pettaway's] case [was] appropriate." The full Board gave several reasons for its decision: (1) incarceration for a multi-crime conviction; (2) an extensive criminal history; (3) prior probationary terms and incarcerations failed to deter criminal behavior; (4) numerous institutional infractions; and (5) insufficient problem resolution and lack of insight into his criminal pathology as to his past conduct.
While we acknowledge that our standard of review is deferential, we cannot affirm the Board's imposition of the fifteen-year FET. We expressed our dissatisfaction with the lack of support for the Board's determination in our opinion issued following Pettaway's initial appeal, and made clear that the Board must base its determination on more than its judgment that a three-year FET was "clearly inappropriate." Moreover, although we did not limit the Board's authority to establish an FET to thirty-six months, we explicitly directed an establishment of an FET of less than fifteen years. The Board was not free to simply reinstate its prior decision.
In Kosmin v. State Parole Bd., 363 N.J. Super. 28, 40 (App. Div. 2003), we noted
that the Parole Board is a state administrative agency whose actions are reviewable by this court. R. 2:2-3(a)(2). Like the trial courts, state administrative agencies are free to disagree with our decisions. They are not, however, free to disregard them.Also,
where . . . the power of the agency (the Board) to act and the extent of that power are prescribed and delineated by a prior judicial opinion in the matter and the court's mandate on remand, the appellate judgment becomes the law of the case and the agency is under a peremptory duty not to depart from it.
[Lowenstein v. Newark Bd. of Educ, 35 N.J. 94, 116-117 (1961).]
These principles apply here. We choose at this time not to exercise our original jurisdiction under Rule 2:10-5, but rather to again remand this matter to the Board. The Board shall distinctly articulate the factual basis, rather than reciting bald conclusions, to support its decision that the FET set forth in N.J.S.A. 10A:71-3.21 is "clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior." We are confident the Board on remand will undertake a comprehensive review as we have directed.
The final action of the Board denying parole is affirmed. The FET imposed by the Board is reversed, and the matter is remanded to the Board for a determination as to an appropriate FET of a shorter duration than fifteen years. The Board shall render a decision within forty-five days.
Reversed and remanded in part. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION