November 17, 2008
JESSE GOODWYN, APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
On appeal from a Final Agency Decision of the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2008
Before Judges Fuentes and Gilroy.
Appellant Jesse Goodwyn appeals from the February 1, 2007 decision of the New Jersey State Parole Board (Board), denying him parole for the sixth time and establishing a 108-month Future Eligibility Term (FET). We affirm.
On July 19, 1976, appellant was confronted about a missing check by his sixty-four year old foster mother. After arguing with her, appellant struck his foster mother twice on the right side of her head, causing her to fall back and strike her head on the kitchen table. After appellant choked his foster mother and stabbed her in the throat with a kitchen knife, he fled the victim's home. Appellant next returned and cleaned the kitchen, removed two rings from his foster mother's hand, wrapped her body in cloth chair coverings, and placed the body in the trunk of the victim's car. After riding around for a short time, appellant disposed of his foster mother's body in a trash dumpster behind a Chinese restaurant in a nearby shopping center. On July 23, 1976, appellant was arrested. Between the date of the murder and his arrest, appellant unlawfully made two withdrawals from the victim's checking account as he had done prior to the murder. On the day following appellant's arrest, he confessed to the murder. Although the police conducted an extensive, six-day search of the landfill where the dumpster had been emptied, the victim's remains were never found.
Appellant was indicted for murder, N.J.S.A. 2A:113-1 and -2, now repealed and superseded by N.J.S.A. 2C:11-3. Tried to a jury, appellant was convicted of the charge. On January 10, 1977, appellant was sentenced to life imprisonment.
On December 10, 1990, August 30, 1994, April 18, 1996, and September 2, 1997, appellant was denied parole, with the Board panel establishing FETs of eighty-four months, thirty months, twenty-four months, and twenty-four months respectively. On May 27, 1998, appellant was transferred to a community release program or a halfway house. On August 9, 2000, appellant was arrested in West Windsor for possession of marijuana. After informing the police that he was an inmate participating in a community release program in Trenton, appellant was returned to State prison where he was charged and found guilty of disciplinary infraction *.204 (use of any prohibited substances such as drugs, intoxicants, or related paraphernalia not prescribed for the inmate by the medical or dental staff). On October 11, 2000, appellant was denied parole for the fifth time, with the Board panel establishing a 144-month FET.
On May 17, 2006, appellant became eligible for parole for the sixth time after serving approximately thirty years toward his sentence. On February 1, 2006, in anticipation of his parole hearing, appellant submitted to an in-depth psychological evaluation. On February 16, 2006, the initial hearing officer referred the matter to a two-member Board panel. On February 23, 2006, the two-member panel considered the matter, including an interview of appellant. The panel denied parole and referred the matter to a three-member Board panel to establish a FET.
The two-member panel based its decision on: 1) appellant's prior criminal record; 2) the nature of appellant's criminal record was increasingly becoming more serious; 3) appellant's prior opportunities on probation and parole failed to deter his criminal behavior; 4) appellant's prior incarceration(s) as a juvenile did not deter his criminal behavior; 5) appellant has a history of numerous institutional infractions with the last infraction occurring in 2000; 6) appellant's removal from the halfway house in 2000 led to disciplinary charges; 7) appellant's insufficient problem resolution, specifically a lack of insight into his criminal behavior and minimization of his conduct as demonstrated during the panel interview, and as documented in his case file and in the confidential material/professional report; 8) appellant's lack of an adequate parole plan to assist in successful reintegration into the community; 9) a risk assessment evaluation; and 10) appellant showing little remorse concerning the victim.
The panel also found as mitigating factors that appellant had participated in institutional programs, including those specific to behavior, and his average to above-average institutional reports. Lastly, the panel recommended that appellant consider participating in additional institutional programs geared toward criminal behavior, behavior modification counseling and one-to-one counseling.
On July 12, 2006, a three-member Board panel considered appellant's case and issued a single-spaced twenty-one page decision, establishing a 108-month FET. The panel based its decision on the factors determined by the two-member panel in denying parole. In reaching its decision, the panel stated:
SPECIFIC REASONS FOR THE IMPOSITION OF THE ONE HUNDRED AND EIGHT (108) MONTH FUTURE PAROLE ELIGIBILITY TERM: In assessing an appropriate future parole eligibility term, the three-member Board panel may establish a future parole eligibility date, which differs from the presumptive schedule if the presumptive schedule is clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior. In making the determination that the presumptive future parole eligibility term is clearly inappropriate, the three-member Board panel shall consider the factors enumerated in N.J.A.C. 10A:71-3.11. N.J.A.C. 10A:71-3.21(d).
The three-member Board panel is of the opinion that the factors supporting the denial of parole, collectively, are of such a serious nature as to warrant the setting of a future parole eligibility term, which differs from the presumptive term of twenty-seven (27) months ( 9 months).
On July 12, 2006, the three-member Board panel convened to set a future parole eligibility term. The three-member Board panel believes that a minimum of a one hundred and eight (108) month future parole eligibility term (which commences on your parole eligibility date and which is reduced by applicable credits) is necessary in order to address the issues detailed herein. Based upon a comprehensive review of your entire record, it is clear that you continue to remain a substantial threat to public safety. The focus of the three-member Board panel's review of your case is to determine the future parole eligibility term that would reasonably be required of an individual with your behavioral history.
The three-member Board panel believes that during your thirty (30) years of incarceration you have:
* been unable to identify the causes of your criminal behavior, therefore failing to develop adequate insight into your violent criminal personality characteristic; and
* failed to appropriately and adequately address the causes of your criminal behavior through specific program participation or by other methods, which would demonstrate satisfactory evidence of rehabilitative progress. Specifically, it is clear that the program participation that you have thus far attended has given you no insight into why you chose to attack your sixty-four (64) year[-]old foster mother after she discovered you had stolen money from her yet again. You admit that you struck her in the face with a closed fist two times knocking her to the ground, choked her, stabbed her in the neck and disposed of her body in a garbage dumpster; and
* been unable to demonstrate remorse and empathy for the victim of the crime you committed. You brutally murdered the woman who took you into her home when you were a young age and attempted to raise you in a stable environment. Even after multiple occasions of you stealing money from her, she did not turn her back to you. At the age of twenty-two (22) you continued to steal from her and when confronted, you viciously murdered her and placed her body with garbage. At no point during your parole hearing did you express any notable guilt, compunction or regret for killing your foster mother. The statements you provided could only be described as apathetic and indifferent; and
* continued to minimize your criminal behavior; and
* been removed from halfway house custody status due to you possessing a quantity of marijuana. At your Board panel hearing on February 23, 2006, you asserted that not only were you ingesting the marijuana, but also were selling the illegal narcotics for "financial reasons."
Accordingly, the three-member Board panel has found that setting any term less than a one hundred and eight (108) month future parole eligibility term would be wholly inconsistent with the conclusion that, after thirty (30) years of incarceration, you have not shown the requisite amount of rehabilitative progress in reducing the likelihood of future criminal activity.
As an inmate sentenced under Title 2A of the Criminal Code, you are entitled to annual parole reviews. At these reviews your progress, or lack thereof, toward rehabilitation will be monitored. It is strongly encouraged that you participate in these reviews. If the [p]anel determines at your annual review that you have made progress toward your rehabilitation, the [p]anel may reduce your future parole eligibility term. If you remain charge free while incarcerated commutation credits awarded by statute will dramatically reduce the time you spend incarcerated before your next parole hearing. Also, the Board panel has the option of referring your case for a parole release hearing.
A document classified as confidential did play a significant role in the [p]anel's decision.
On April 18, 2006, appellant appealed to the full Board. On February 1, 2007, the Board affirmed the two-member and three-member panel decisions denying parole and establishing a 108-month FET. As to appellant's challenge to the 108-month FET, the Board: noted that not every case falls within the schedule set in N.J.A.C. 10A:71-3.21(a-c).
There are times when it is appropriate for the Board to set a [FET], which is outside the established guidelines, because the guideline is clearly inappropriate. The specific language in the statute anticipates that the Board will utilize its discretion, when necessary to establish "[FETs]" outside of the standard schedule and shall include the particular reasons for the decision. As noted above, the full Board found that the three-member Panel has established both the particular and the specific reasons for its decision.
On appeal, appellant does not challenge the denial of parole, but only the length of the FET. Appellant contends, as he did before the Board, that the imposition of such an extended FET was outside of the administrative guidelines and was not based on credible evidence that he would commit a new crime. Appellant asserts that "[t]he absence of any standard within the regulation to justify an extended FET or an increased FET, violates [his] procedural due process rights." We disagree.
Decisions of whether to grant or deny parole are subjective and involve, in part, predictions as to future behavior of the inmate, requiring broad discretion in the decision-making process. Puchalski v. N.J. State Parole Bd., 104 N.J. Super. 294, 300 (App. Div.), aff'd, 55 N.J. 113, (1969), cert. denied, 398 U.S. 938, 90 S.Ct. 1841, 26 L.Ed. 2d 270 (1970). Accordingly, a Parole Board's decision is given great weight, and its discretion is broad. O'Neal v. N.J. State Parole Bd., 149 N.J. Super. 174, 182 (App. Div.), appeal dismissed, 55 N.J. 590 (1977).
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 whether the agency's findings could reasonably have been reached on the credible evidence in the record. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 175, modified, 167 N.J. 619 (2001); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). An agency's decision can be set aside 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.'" N.J. Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988) (quoting 613 Corp. v. State of N.J., Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)).
The assignment of future parole eligibility dates is governed by N.J.A.C. 10A:71-3.21. Subsection (a)1 of that regulation provides that "a prison inmate serving a sentence for murder . . . shall serve 27 additional months." N.J.A.C. 10A:71-3.21(a)1. The regulation goes on to permit the term to be "increased or decreased by up to nine months when, in the opinion of the Board panel, the severity of the crime for which the inmate was denied parole and the prior criminal record or other characteristics of the inmate warrants such adjustment." N.J.A.C. 10A:71-3.21(c). Moreover, a panel may increase or decrease the standard FET by more than nine months "if the future parole eligibility date which would be established pursuant to [subsections (a) or (b) and (c)] is 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). "In making the determination that the establishment of a future parole eligibility date pursuant to [subsections] (a) or (b) and (c) above is clearly inappropriate, the three-member panel shall consider the factors enumerated in N.J.A.C. 10A:71-3.11." Ibid.
Here, the three-member panel increased the standard FET from twenty-seven months to 108 months. In reaching that decision, the panel determined that appellant continues to be a substantial threat to public safety; failed to identify and address the real causes of his criminal behavior; failed to demonstrate a lack of remorse toward his foster mother; and continued to minimize his criminal and otherwise antisocial behavior. In addition, the panel found, based on appellant's statements during the interview, that when appellant was released to a halfway house, he not only possessed marijuana for personal use, but also engaged in the selling of the CDS for "financial reasons . . . building [his] finances." Lastly, in setting the FET, the panel gave significant weight to the confidential report. We are satisfied that the credible evidence in the record supports the three-member panel's findings and decision as affirmed by the Board.
Appellant contends that the extended FET is outside the parameters of the regulations and is unconstitutionally vague, leaving the panel with unbridled discretion to extend an FET beyond twenty-seven months. We disagree. See Johnson v. Paparozzi, 219 F. Supp. 2d 635, 642-43 (D.N.J. 2002) (rejecting an inmate's argument that the setting of a 120-month FET was unconstitutional where the panel complies with the direction of N.J.A.C. 10A:71-3.21 and considers the twenty-three factors enumerated in N.J.A.C. 10A:71-3.11); see also McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 565 (App. Div. 2002) (upholding the establishment of a thirty-year FET).
Lastly, as in McGowan, because appellant is a Title 2A offender, serving a life term of imprisonment, he is entitled to an annual review hearing because the length of the FET exceeds the standard term provided by N.J.A.C. 10A:71-3.21(a) and (c). N.J.A.C. 10A:71-3.21(f). Depending on the Board panel's assessment of appellant's "progress in institutional or community educational, training or other programs, progress in substantially altering those factors which led to [his] incarceration, and progress which may indicate that [he] has reduced the likelihood of future criminal behavior[,]" N.J.A.C. 10A:71-3.21(f)1, the panel may refer appellant's case for a parole release hearing or recommend a reduction in the FET or continue the case until the next annual review. N.J.A.C. 10A:71-3.21(f)2v, 4 and 5.
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