June 20, 2007
DERRICK CANNON, PETITIONER-APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT-RESPONDENT.
On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: June 5, 2007
Before Judges Axelrad and Gilroy.
Derrick Cannon, a State prison inmate, appeals from a May 5, 2006 final decision of the New Jersey State Parole Board (Board), denying him parole and establishing a thirty-six-month future eligibility term (FET). We affirm.
Appellant is presently serving a concurrent fifteen-year sentence for first-degree carjacking, second-degree kidnapping, first-degree robbery and third-degree burglary, which included a five-year parole disqualifier, pursuant to a guilty plea. On February 4, 2005, a two-member Board Panel (Panel) denied parole and established a thirty-six-month FET. Appellant filed an administrative appeal to the Board. On May 5, 2006, the Board affirmed the Panel's decision denying parole and establishing a thirty-six-month FET, determining that the Panel "documented, by a preponderance of evidence, that there is a reasonable expectation that [petitioner] would violate the conditions of parole if released on parole at this time."*fn1
On appeal, appellant argues that the Board's decision was arbitrary and capricious because it lacks evidentiary support to satisfy the controlling standard for parole.*fn2 According to appellant, contrary to the Board's conclusion, his institutional record does not show any inclination towards criminal behavior. He further contends the Board failed to consider his communication handicap and deficiencies when it assessed his pre-parole report statement and his responses at the hearing and misperceived that he showed a lack of remorse, thus improperly concluding that he failed to conform to social norms. Appellant also requests that we order the release of documents crucial to his subsequent parole application and determine the propriety of the Board's decision to withhold the documents from him.
Judicial review of parole determinations is limited to an evaluation of whether the Parole Board acted arbitrarily or abused its discretion in rendering its decisions. The actions of the Parole Board are presumed valid and reasonable. In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994). 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); N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988). We will set aside an agency decision only "'if there exists in the reviewing mind a definite conviction that the determination below went so far wide of the mark that a mistake must have been made.'" Cestari, supra, 224 N.J. Super. at 547 (quoting 613 Corp. v. N.J., Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986).
Parole Board 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)). Consequentially, "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").
There is sufficient credible evidence in the record, with a presumption in favor of and deference to the agency's expertise, to support the Board's denial of appellant's parole and establishment of a thirty-six-month FET. The Board properly considered and weighed the pertinent factors enumerated in N.J.A.C. 10A:71-3.11(b), including petitioner's repetitive and extensive criminal record; escalating seriousness of his crimes; his having been found guilty of two asterisk disciplinary institutional infractions, fighting with another person on December 30, 2000, and assault on May 16, 2004; his unwillingness to participate in substance abuse counseling and failure to adequately address his substance abuse problems; and insufficient problem resolution and lack of insight into his criminal behavior. We are not persuaded by appellant's argument that the Board failed to take into consideration his communication deficiencies when it assessed his statement and oral responses at the hearing. Based on our review of the totality of the record, we are satisfied the Board had more than ample credible evidence upon which to base its decision. We thus discern no basis to disturb its determination denying parole and fixing a thirty-six-month FET.