On appeal from a Final Decision of the State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Kestin and Lefelt.
Petitioner Steven Ketch, an inmate at Rahway State Prison, appeals from the State Parole Board's denial of his parole and the imposition of a future eligibility term (FET) of seventy-two months. Petitioner argues that the Board abused its discretion, as it was unlikely that he would commit another crime if paroled and the FET was not statutorily authorized. We reject these arguments and affirm.
The trial court sentenced defendant in 1996 to a thirty-year prison sentence, with ten years of parole ineligibility, for killing a thirty-year-old stranger with a metal baseball bat. In 2006, as soon as defendant became eligible for parole, he applied to the Board for release. The Board recognized a number of mitigating factors, including the lack of a prior criminal record, active participation in institutional programs, attempts to enroll in other programs, and his above-average work and housing reports. Nevertheless, applying the parole standard that pertains to crimes committed before 1997, N.J.S.A. 30:4-123.53(a)(1979), the Board denied parole and found that "the factors supporting the denial, collectively, are of such a serious nature as to warrant the setting of a future parole eligibility term seventy-two month FET, well in excess of the presumptive term.
Judicial review of parole determinations is limited to three inquiries: (1) "whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law"; (2) "whether the record contains substantial evidence to support the findings on which the agency bases 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." Brady v. Dep't of Personnel, 149 N.J. 244, 256 (1997) (quoting In re Musick, 143 N.J. 206, 216 (1996)).
The Board cited four main reasons for denial of parole: a minor institutional infraction, and insufficient problem resolution in the form of defendant's lack of insight into his criminal behavior, minimization of his criminal conduct, and an inadequately addressed substance abuse problem. Specifically, defendant claimed he only hit the victim once when an autopsy report and eye witness accounts indicated repeated blows were struck and other evidence revealed that the victim's pants had been partially removed. Considering the random, unprovoked and violent nature of petitioner's offense, he remains unable to provide insight into either his motivation for committing the offense or his own violent nature. The Board found this especially shocking as, after ten years of imprisonment, defendant's "insight, or lack thereof, is nearly the same today as it was at the time of [his] offense." Therefore, the Board believed that it was necessary to deny parole and establish a seventy-two month FET as there was "a substantial likelihood that [petitioner] will commit a crime . . . if released on parole," (see N.J.S.A. 30:4-123.53(a)(1979) (current version at N.J.S.A. 30:4-123.53(a)(2007)), and application of the presumptive FET would be "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).
Our review of the record in light of the pertinent law and petitioner's arguments leads us to conclude that the Board's action denying parole and imposing the FET was fully in accordance with the law and was fully supported by substantial evidence in the record. Brady, supra, 149 N.J. at 256; see also, Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (recognizing that the Board's decisions are "individualized discretionary appraisals"). Accordingly, we affirm.
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