June 25, 2008
LOUIS WATLEY, APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
On appeal from a Final Decision of the State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 3, 2008
Before Judges Chambers and Waugh.
Appellant Louis Watley appeals from the denial of his application for parole by respondent New Jersey Parole Board. Having reviewed the entire record, we are unable to determine whether there is support for the Board's stated reason for denial of parole, namely, that there is a substantial likelihood that Watley will commit another crime if released on parole. Consequently, we vacate the Board's decision and remand the matter to the Board for further consideration in light of this opinion.
The events that led to Watley's conviction and incarceration took place over several days in April 1997. They involved the aggravated sexual assault of an eighteen-year-old female employee of Watley's accounting and travel business. She was sexually assaulted at the place of business and then forced to accompany Watley to his home where she was sexually assaulted again. Watley threatened to kill the victim several times if she disclosed what happened.
On October 6, 2001, a jury convicted Watley on one count each of criminal sexual contact, N.J.S.A. 2C:14-3(b); kidnapping; N.J.S.A. 2C:13-1(b); aggravated sexual assault, N.J.S.A. 2C:14-2a(3); and terroristic threats, N.J.S.A. 2C:12-3(b). He was acquitted on one count of sexual assault, N.J.S.A. 2C:14-2c(1); and one count of criminal sexual contact, N.J.S.A. 2C:14-3(b).
Pursuant to N.J.S.A. 2C:47-1, Watley was evaluated to determine whether he should be sentenced to the Adult Diagnostic and Treatment Center in Avenel. According to the judgment of conviction, the Avenel report concluded that Watley was in "excessive denial," "defensive" and a "dramatic, attention seeking individual whose uninhibited social behavior may feel overbearing to others." He was found not to meet the criteria for classification as a "repetitive and compulsive sex offender," but it was noted that "he ha[d] hedonistic exploitation, power and control issues and aggression," and that "situational factors may control his sexual behavior."
Watley had a relatively minor prior record at the time the current offenses were committed. During 1966, he was convicted twice in municipal court, receiving a sixty day county jail sentence on intimidation charges and then one year probation for possession of a weapon. In 1968, he was convicted in municipal court and fined for shoplifting. He was acquitted after two jury trials on two more serious offenses; one in 1972 for rape and another in 1987 for sexual assault.
On March 9, 2001, Watley was sentenced to 18 years in state prison on the aggravated sexual assault and shorter concurrent terms on the other charges. He was given credit for 158 days of confinement prior to sentencing.
Watley first became eligible for parole on November 26, 2004. He was denied parole at that time and given a twenty-seven-months future eligibility term (FET). This Court affirmed on appeal. Watley v. New Jersey State Parole Board, No. A-4558-04 (App. Div. Jan. 13, 2006).
A two-member panel of the Parole Board held a hearing on Watley's second application for parole in May 2006. After listening to Watley and asking him questions, the members of the panel deliberated and announced their decision to deny parole. Their reasons were stated on the record as follows:
Sir, we have deliberated. And we're denying you parole at this time. We're giving you an 18-month hit, which is the lowest we can go under the statute. But we want you to take anger management, and maybe take some more counseling, and - and focus, if you can, on the victim. And you haven't focused on the victim at all in your - in your interview. And there is a - it's a serious thing that happened to this young woman.
Sir, you'll receive the paperwork in the mail along with the - the reasons for our denial, and an appeal form you can use, if you feel you should. Good luck, sir.
The panel's formal decision was dated May 18, 2006. It listed the following five "mitigating factors": (1) "no prior criminal record or minimal criminal record," (2) "infraction free," (3) "participation in institutional program(s)," (4) "average to above average institutional report(s)," and "risk assessment evaluation." The "reasons for denial" were listed as (1) "nature of criminal record increasingly more serious," (2) "prior incarcerations did not deter criminal behavior" and (3) "insufficient problem(s) resolution."
Under "insufficient problem(s) resolution," the panel checked boxes for "lack of insight into criminal behavior" and "minimizes conduct," as well as a box indicating that those findings were based on the panel interview. The panel hand wrote the following comments with respect to those findings:
(1) "no insight," (2) "no focus on victim," and (3) "blames State for his incarceration." The panel recommended that Watley participate in an anger management program and "one to one counseling." There was a handwritten "again" after the recommendation for counseling.
Watley appealed the panel's determination to the entire Parole Board. In a letter dated January 16, 2007, the Chief of the Appeals Unit notified Watley that the Board affirmed the panel's determination. The Board's letter articulated its reasons, in pertinent part, as follows:
The issues you submitted were presented to the full Board at its meeting, conducted on January 10, 2007. During the consideration of your claims, the Board determined that the Adult Panel appropriately considered the aggregate of all relevant material facts pursuant to N.J.A.C. 10A:71-3.11 and fully documented and supported their reasons for denying parole pursuant to N.J.A.C. 10A:71-3.18(f).
With regard to your contention that it was improper for the Panel to determine the nature of your criminal record was increasingly more serious and your prior incarceration did not deter criminal behavior, and inappropriate and irrelevant to reference your failure to focus on the harm to the victim, the full Board found that pursuant to N.J.A.C. 10A:71-3.11 the Panel is required to consider and base its decision on the aggregate of all factors. This would include the nature and pattern of previous convictions, adjustment to previous probation, parole and incarceration; facts and circumstances of the offense, aggravating and mitigating circumstances surrounding the offense and in addition, any other factors deemed to be relevant. Therefore, the Board found that the Panel appropriately considered this information.
With regard to your contention that the Adult Panel's decision is arbitrary and capricious and the record does not contain sufficient evidence that there is a substantial likelihood that you would commit a new crime if released on parole, the Board found that an arbitrary and capricious action is one which is willful and unreasoning, without consideration and in disregard of the circumstances. The Board found that your appeal contains no credible evidence to support this claim and none exists in the record. The Board found that there is sufficient credible evidence contained in the record to support the Panel's determination. Therefore, the Board found your contention to be without merit.
The full Board found that the Adult Panel appropriately considered the nature of your criminal record is increasingly more serious. In addition, the Panel noted your prior incarceration failed to deter your criminal behavior. The Panel also noted your insufficient problem resolution, specifically your lack of insight into your criminal behavior and minimizing your conduct as demonstrated by your Panel interview. Finally, the Panel noted that you have no insight, no focus on the victim and you blame the State for your incarceration.
The full Board additionally determined that the Adult Panel appropriately considered in mitigation your minimal criminal record, infraction fee status and participation in institutional programs. In addition the Panel also considered your average to above average institutional reports and the results of your risk assessment evaluation. Based on a consideration of the facts cited above, the full Board has determined that the Adult Panel has documented, by a preponderance of the evidence, that there is a substantial likelihood that you would commit a crime if released on parole at this time.
Watley appeals from that decision.
Because the underlying offenses were committed prior to the enactment of L. 1997, c. 213, this case is governed by the original provisions of the Parole Act of 1979 (L. 1979, c. 441). In pertinent part, the governing version of N.J.S.A. 30:4-123.53a, provides as follows:
An adult inmate shall be released on parole at the time of parole eligibility, unless information supplied in the report filed pursuant to section 10 of this act or developed or produced at a hearing held pursuant to section 11 of this act indicates by a preponderance of the evidence that there is a substantial likelihood that the inmate will commit a crime under the laws of this State if released on parole at such time. In reaching such determination, the board panel or board shall state on the record the reasons therefore.
Consequently, "the critical and controlling question in this appeal is whether a preponderance of the credible evidence in the record supports the Parole Board's determination that there is a substantial likelihood that [the applicant for parole] will commit a crime if he is released on parole." Trantino v. New Jersey State Parole Bd., 166 N.J. 113, 126 (2001), modified as to halfway house placement, 167 N.J. 619 (2001); Kosmin v. New Jersey State Parole Bd., 363 N.J. Super. 28, 41 (2003) ("The question then before us is whether the record supports by a preponderance of the evidence the Board's conclusion that if released on parole appellant will be substantially likely to commit another offense."); N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 546-547 (App. Div.), certif. denied, 111 N.J. 649 (1988).
Our scope of review is limited. A reviewing court must determine whether the factual findings relied upon "could reasonably have been reached on sufficient credible evidence in the whole record." Id. at 172. The Board's decisions are "highly individualized discretionary appraisals," and should "only be reversed if found to be arbitrary or capricious." Hare v. New Jersey State Parole Bd., 368 N.J. Super. 175 (App. Div.), certif. denied, 180 N.J. 452 (2004) (internal citations and quotations omitted). While we owe "deference" to the decisions of administrative agencies because of their expertise, "[n]o stricter standard of review applies to the Parole Board than to any other administrative agency." Kosmin v. New Jersey State Parole Bd., supra, 363 N.J. Super. at 41-42. In addition, because "the statute creates a presumption of release on the parole eligibility date, the decision not to release must be regarded as arbitrary if it is not supported by a preponderance of evidence in the record." Ibid.
The first two reasons for denial cited by the Parole panel, (1) "nature of criminal record increasingly more serious" and (2) "prior incarcerations did not deter criminal behavior" are supported in the record. Although Watley correctly cites our opinion affirming the Board's first denial of parole for the proposition that his earlier offenses were "neither recent nor serious" (Watley v. New Jersey State Parole Board, supra, No. A-4558-04, slip op. at 8), there can be no doubt that the crimes for which he is now incarcerated, including aggravated sexual assault and kidnapping, are significantly more serious than his earlier municipal court offenses, such as intimidation and possession of a weapon. Nor can it be denied that the 60-day jail sentence received in 1966 did not deter the current offenses over thirty years later.
The panel's third and final reason, "insufficient problem(s) resolution," is somewhat problematic. The three specific references listed under this reason - (1) "no insight," (2) "no focus on victim," and (3) "blames State for his incarceration" - are not in themselves reasons to deny parole. They may only be considered if they are used as factors in determining that there is, by a preponderance of the evidence, "a substantial likelihood that the inmate will commit a crime" if released on parole. See, e.g., Trantino v. N.J. State Parole Bd., 154 N.J. 19, 26-27 (1998), certif. granted, 165 N.J. 523 (2000), aff'd in part, 166 N.J. 113, judgment modified, 167 N.J. 619 (2001), holding that "punishment" and "rehabilitation" may only be considered as parole factors to the extent they bear on the issue of recidivism.
We are unable to ascertain from the record before us how the three factors mentioned above were used in making the Board's determination, i.e., whether they were used properly in weighing the likelihood of another offense or improperly for some other consideration, such as whether Watley has been sufficiently punished. In addition, we cannot determine what weight they were given by the Board in balancing them against the mitigating factors, such as the "risk assessment evaluation," which was not listed as a mitigating factor in the Board's prior denial.*fn1 The Board's January 16, 2007 letter affirming the panel's decision does not assist us in our endeavor because it is largely conclusory in nature.
Consequently, because it is "not clear that there was sufficient evidence and adequate findings of fact to support the denial of parole" (Trantino v. N.J. State Parole Bd., supra, 154 N.J. at 44), we vacate the decision of the Board and remand for reconsideration of parole eligibility in light of this opinion. In the event the Board reaches the conclusion that there is a "substantial likelihood" that Watley will commit another crime if released on parole, we direct that the Board's decision be clearly and specifically articulated as to its factual and legal basis.
Vacated and remanded.