December 12, 2008
KOLE AKINOLA, APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 21, 2008
Before Judges Collester and Grall.
Kole Akinola, an inmate at Mid-State Correctional Facility in Wrightstown, appeals from a final decision of the State Parole Board denying parole and establishing a future eligibility term (FET) of eighteen months.*fn1 Because the Board's decision is supported by sufficient credible evidence in the record and consistent with controlling legal standards, we affirm and provide only a brief discussion of the issues raised on this appeal. R. 2:11-3(e)(1)(D).
Akinola is serving a ten-year term of incarceration with a three-year term on parole ineligibility imposed as a consequence of his plea of guilty to robbery; he beat the victim of that crime about the head with a hammer and a broken bottle because he would not return money Akinola paid for a used car that broke down. When he was sentenced for robbery, Akinola was on supervised release as a consequence of his conviction for a federal offense.
Akinola is also serving concurrent sentences for drug crimes, theft by deception and attempted theft by deception. He committed those thefts while released on bail. His criminal record also includes a municipal court conviction, a conditional discharge and at least one bench warrant issued as a consequence of his failure to appear in court.
Akinola's first application for parole was denied in November 2004. His twenty-three-month FET expired on February 25, 2007. He sought parole so that he could comply with an immigration detainer; he had no plan for parole other than living with his brother and attempting to find work using his skill and experience as a forklift operator or data entry clerk. In a letter to the panel, Akinola explained that being unavailable to assist his mother during her three-year struggle with cancer taught him that crime did not pay and motivated him to avoid future crimes.
Akinola made progress while incarcerated. Although he had lost commutation credits for prior institutional infractions, he had not had an infraction for three years and his commutation time had been restored. He had participated in institutional programs and made requests for admission to additional programs that the institution had not been able to accommodate. His adjustment to prison life was rated as "average" and his risk of recidivism, as measured by the Board's risk assessment instrument and psychologist, was "moderate" and "medium." There is nothing in Akinola's confidential materials indicative of risk apart from inferences about his anti-social characteristics that the psychologist drew based on his crimes and admitted use of marijuana and alcohol prior to his incarceration.*fn2
During his interview with a two-member panel of the Board, Akinola acknowledged that he had no excuse for what he did to the victim of his robbery, but he described his conduct as a "situation that got out of hand." When pressed he explained, "[w]e got into a conflict over [the car] which turned into a fight. I assaulted him and I took my money back. [I]nstead of going to the authorities with it, I got into a confrontation with him. I assaulted him and I took my money."
Akinola is entitled to release unless the preponderance of evidence shows "that [he] failed to cooperate in his... rehabilitation or that there is a reasonable expectation that [he] will violate conditions of parole" if released now.
N.J.S.A. 30:4-123.53(a). The Board concluded that the preponderance of the evidence gave rise to "a reasonable expectation" that Akinola would violate the conditions of parole.
The following are among the factors the Board considers in deciding to grant or deny parole:
3. Nature and pattern of previous convictions.
4. Adjustment to previous probation, parole and incarceration.
5. Facts and circumstances of the offense.....
8. Participation in institutional programs which could have led to the improvement of problems diagnosed at admission or during incarceration........
11. Documented changes in attitude toward self or others.
12. Documentation reflecting personal goals, personal strengths or motivation for law-abiding behavior.....
14. Parole plans and the investigation thereof.
15. Status of family or marital relationships at the time of eligibility.....
17. Statements by the inmate reflecting on the likelihood that he or she will commit another crime; the failure to cooperate in his or her own rehabilitation; or the reasonable expectation that he or she will violate conditions of parole.....
23. The results of the objective risk assessment instrument. [N.J.A.C. 10A:71-3.11(b).]
The Board considered all of the evidence that favored Akinola's release under these factors: his participation in programs offered in the prison; his requests to enroll in additional programs that the prison was unable to accommodate; and his improved institutional record that had led to restoration of commutation credits lost due to prior infractions. The Board, however, also found factors indicative of a risk that Akinola was likely to violate conditions of release: his prior failure to succeed on supervised release and bail; the variety and increasing severity of the crimes he committed; and his minimization of his conduct during the robbery.*fn3
The Board applied the proper legal standard, considered the relevant evidence and reached a decision that is based on findings supported by the record. Bowden v. Bayside State Prison, 268 N.J. Super. 301 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994). For that reason, this court may not substitute its judgment for that of the Board. Ibid. We note that the Board demonstrated its understanding of Akinola's progress by exercising its discretion to set an eighteen-month FET. N.J.A.C. 10A:71-3.21(a)(2), (c). The standard FET for an inmate serving a ten-year sentence for robbery is twenty-three months. Ibid.
Contrary to Akinola's claim on appeal, the record permits a finding that he minimizes his criminal conduct. The support is found in his description of and explanation for the robbery.
The Board's failure to give great weight to the impact of the death of Akinola's mother on the sincerity of his intention to reform does not convince us that the Board's decision is arbitrary. The Board was concerned about Akinola's appreciation of the impact of his crime on his victims, not about his understanding of the impact on his own life. Given the evidence of Akinola's prior failures on supervised release, conditional discharge and bail, his sincerity about reforming his life does not compel a finding that he will be able to comply with the conditions of parole if released at this juncture.
We reject Akinola's claim that the Board erred by ignoring the fact that he would be paroled on detainer and not released into the community. The Board cannot rely on a detainer to avoid its responsibility for determining whether an inmate is eligible for parole. See N.J.A.C. 10A:71-3.11(c) (noting that a detainer may not be used as a reason to deny parole).