On appeal from a Final Decision of the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 18, 2008
Before Judges Wefing and Yannotti.
Michael Chuton, an inmate at the South Woods State Prison, appeals from a final determination of the New Jersey State Parole Board, dated November 1, 2007, which denied his application for parole and established a twenty-month future eligibility term (FET). For the reasons that follow, we affirm.
Chuton is presently serving a five-year sentence, imposed on July 28, 2006, for manufacture, distribution and possession of a controlled dangerous substance (CDS), in violation of N.J.S.A. 2C:35-5a(1). Chuton is also serving a concurrent four-year sentence, imposed on July 8, 2005, for possession of a CDS, in violation of N.J.S.A. 2C:35-10a(1). Chuton became eligible for parole on August 29, 2007. He appeared before an adult panel of the Board on June 8, 2007. The panel denied parole and established a twenty-month FET.
In its notice of decision dated June 8, 2007, the panel found that there is a reasonable expectation that Chuton would violate the conditions of parole if he were released on parole. The panel noted by way of mitigation that Chuton had "average to above average" institutional reports. The panel noted, however, as reasons for denying parole that: Chuton had a prior criminal record; he had opportunities for probation which failed to deter criminal behavior; he had committed new offenses while on probation; he had previously been incarcerated but it had not deterred him from engaging in criminal behavior; he committed a serious institutional infraction, specifically an assault, which had resulted in the loss of commutation time and confinement in administrative segregation; he lacked insight into his criminal conduct; and his substance abuse problem had not been sufficiently addressed. The panel recommended that Chuton participate in substance abuse counseling and institutional programs geared to criminal conduct, and remain infraction free.
Chuton filed an administrative appeal to the full Board. Chuton asserted that the remainder of his sentence should be "revoked" because the federal immigration authorities had issued a detainer. Chuton anticipated that he would be deported because he violated the immigration laws. Chuton said that further incarceration would be a waste of time and money. He stated that his family was "going through tremendous hardship traveling back and forth from Peru to [the] United State[s] to" visit him. He also stated that his marriage was "in jeopardy because of this whole ordeal."
The Board issued a final decision on November 1, 2007. In its decision, the Board stated that the fact that Chuton might be deported was not a sufficient basis to grant parole. The Board said that it had no control over an inmate who has been deported to another country and there remained a concern that such a parolee might commit another offense in that jurisdiction or in the United States if the parolee were to return.
The Board found that the panel had considered all of the relevant information and fully documented and supported its decision to deny parole. The Board stated that the panel's decision "is based upon a reasonable expectation that [Chuton] would violate the conditions of parole if released on parole at this time." The Board affirmed the panel's decision to deny parole and establish a twenty-month FET. This appeal followed.
Chuton argues that the Board erred by relying upon his failure to participate in institutional programs as a reason to deny parole. Chuton says that he did not participate in such programs because of a lack of Spanish-speaking "program operators." In addition, Chuton asserts that a member of the adult panel made an inappropriate statement regarding his "deportation status" during his parole hearing. Chuton further contends that the Board erred by relying upon his refusal to admit that he committed an institutional infraction as a basis for denying parole.
The Supreme Court has recognized that the Board's parole determinations are 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)). Indeed, a parole 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." Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 10, 99 S.Ct. 2100, 2105, 60 L.Ed. 2d 668, 677 (1979).
The Board's discretionary authority in the parole process is broad but not unlimited, and the Board's decisions remain subject to judicial review for arbitrariness. Trantino VI, supra, 166 N.J. at 173 (citing Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971)). In reviewing a final decision of the Parole Board, we consider: 1) whether the Board's action is consistent with the applicable law; 2) whether there is substantial credible evidence in the record as a whole to support the Board's findings; and 3) whether in applying the law to the facts, the Board erroneously reached a conclusion that could not have been reasonably made based on the relevant facts. Trantino v. New Jersey State Parole Bd., 154 N.J. 19, 24 (1998) (Trantino IV).
Chuton is presently incarcerated for crimes committed in 2002 and 2004. Therefore, the standard that governs Chuton's application for parole is set forth in N.J.S.A. 30:4-123.53(a), which provides that an inmate shall be released at the time of his parole eligibility unless it is determined by a preponderance of the evidence that "there is a reasonable ...