On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 19, 2007
Before Judges Axelrad and Payne.
Shakeel Dawud, a State Prison inmate, appeals from a February 21, 2007 final decision of the New Jersey State Parole Board (Board), denying him parole and establishing a nine-month future eligibility term (FET). We affirm.
Appellant is currently serving a fourteen-year sentence for two counts of aggravated assault, CDS possession, CDS distribution, unlawful possession of weapons, and resisting arrest. On June 27, 2006, appellant was paroled to the Kintock Halfway Back Program (HBP). Appellant was required to complete the program as a condition of parole; however, within five days of admission he was involved in a fight and was asked to leave the program. Because of a State budget shutdown, a parole officer was unable to pick up appellant from the residence so he was instructed to sign a voluntary termination form, which he stated he did under duress. Appellant reported to his parole officer and was taken into custody on July 5, 2006, and lodged in the Atlantic County jail.
On July 18, a probable cause hearing was commenced, but adjourned to permit testimony by a representative of the HBP regarding the circumstances of appellant's departure. When the hearing resumed on July 31, the representative declined to appear, and as a consequence, appellant was again offered parole on the condition of completing another HBP. On September 25, 2006, he was re-paroled to the Bo Robinson House. According to the unit manager there, appellant disregarded two direct orders to attend a lecture on September 26. Appellant was thus discharged from the program and returned to custody.
On October 11, 2006, a two-member Board Panel (Panel) adopted the hearing officer's recommendation and revoked appellant's parole based on his violating the special condition which required him to successfully complete the HBP, and imposed a nine-month FET. In rendering its decision, the Panel noted that there was clear and convincing evidence of appellant's "inappropriate actions and demeanor" at Bo Robinson House by disregarding the direct orders and failing to follow the rules of the program. Furthermore, the incident was "more magnified in light of [appellant's] recent discharge from Kintock and then given another opportunity at Halfway Back following a revocation hearing." The Panel thus concluded that appellant's violations were sufficiently serious and persistent to warrant the parole revocation and FET.
Appellant filed an administrative appeal to the Board. On February 21, 2007, the Board affirmed the Panel's decision denying parole and establishing a nine-month FET. The Board noted appellant's explanation of the incident at the Kintock Program, in which he claimed he tried to break up a fight in a courtyard riot and did nothing wrong, and that he signed the voluntary discharge papers under duress. It further noted appellant's claim that he had not been given an orientation or schedule at Bo Robinson, had overslept, and was not aware of the group meeting and his obligation to attend. The Board mentioned other mitigating factors cited by appellant. The Board found, however, that the evidence supported crediting the testimony of the unit manager at Bo Robinson that appellant failed to abide by his directive to attend the lecture, and was thus uncooperative and insubordinate, and failed to abide by the rules and regulations, including participation in treatment programs. The Board was satisfied that appellant violated the special condition of parole by failing to successfully complete the HBP at either Kintock or Bo Robinson, thereby constituting a serious violation of the conditions of parole and warranting revocation of parole. The Board imposed the presumptive nine-month FET pursuant to N.J.A.C. 10A:71-7.17B.
On appeal, appellant argues that his due process rights were violated because he was not given notice of the rules and regulations of the Bo Robinson halfway house and a schedule of the programs that he had to attend. Appellant also argues that he is entitled to commutation and work credit toward the nine-month FET for the two months he was unlawfully detained in the Atlantic County jail awaiting transfer to another HBP.
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, as an administrative agency, are presumed valid and reasonable. 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); 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 substantial 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 nine-month FET. The Board may revoke parole when clear and convincing evidence demonstrates that the parolee has seriously or persistently violated the conditions of parole. N.J.A.C. 10A:71-7.12(c). We defer to the credibility determinations of the factfinder that despite being given two opportunities, appellant violated the conditions of parole by failing to complete either HBP due to fighting, insubordination, and refusal to attend a lecture. In addition, the presumptive nine-month FET appears appropriate under the circumstances and we perceive of no basis for a downward adjustment. See N.J.A.C. 10A:71-7.17B(b) (an FET may be adjusted upward or downward three months when the circumstances of the violation and characteristics and past record of the parolee warrant such adjustment).
In his appeal to the Board, appellant stated that he earned no credits toward his sentence during his county jail incarceration between halfway house placements, when he contended he did nothing wrong, but he did not expressly request that any credits be given. Presumably, that is the reason the Board did not address the issue of credits. As the sole issue before the Board was the revocation of parole and the imposition of an FET, the appeal is limited to the review of that determination. Although we query whether appellant's claim for commutation and work credits has merit, he may submit the appropriate application to the Department of Corrections. See, e.g., Trantino v. Dep't. of Corrections, 168 N.J. Super. 220, 224-25 (App. Div.) (inmates are only entitled to full credits under N.J.S.A. 30:4-92 for actual work performed; work credits should not be awarded ...