February 27, 2009
WILLIAM L. FRAZIER, III, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 January 29, 2009
Before Judges Axelrad and Parrillo.
Inmate, William L. Frazier, III, appeals from an April 4, 2008 decision of respondent, New Jersey State Parole Board (Parole Board), denying him parole and establishing a thirty-six month Future Eligibility Term (FET). We affirm.
The relevant facts are as follows. While on parole and out of prison for only six months, appellant committed a carjacking and robbery for which he was convicted and sentenced on February 17, 1995, to an aggregate term of twenty-six years, with a mandatory minimum of thirteen years. This sentence was made concurrent to a sentence of twenty-years with a ten-year mandatory minimum imposed on appellant for a separate incident wherein he committed the crimes of robbery, unlawful possession of a weapon, receiving stolen property, and resisting arrest. While incarcerated, appellant committed a serious institutional asterisk infraction, resulting in a loss of commutation time.
Appellant first became eligible for parole after serving approximately twelve years and nine months. The hearing officer referred the matter to a Board Panel, pursuant to N.J.A.C. 10A:71-3.15(b), who then conducted the hearing, which included an extensive interview with appellant and a comprehensive review of his parole file. The two-member Panel denied appellant parole and established a thirty-six month FET.
The Panel's decision was based on a number of factors, including appellant's present incarceration for a multi-crime conviction; his extensive criminal record and the escalating seriousness of his crime; the failure of prior parole and probation opportunities to deter his criminal behavior; the commission of new offenses while on parole and while incarcerated; the exhibition of anti-social behavior; and insufficient problem resolution. As to the latter, the Panel cited appellant's lack of insight into his criminal behavior and minimization of conduct, noting "[appellant] presents no empathy or remorse towards his victims, is seeking to blame others for his development and anger which caused him to be angry and aggressive towards others."
In mitigation, the Panel did consider appellant's participation in programs specific to behavior and other institutional programs, his average to above average institutional reports, minimum custody status achieved, commutation time restored, and his attempt to enroll in still other programs, for which he was not admitted. Nevertheless, considering all material facts, including the Panel interview and case file documentation, the Panel concluded that, on balance, appellant presented an unacceptable risk of committing future crimes if released and therefore denied parole.
Appellant appealed the Panel's decision to the full Parole Board. In affirming the denial of parole and thirty-six month FET, the Board concluded:
Based upon consideration of the facts cited above, the full Board has determined that the Adult Panel has considered the aggregate of information pursuant to N.J.A.C. 10A:71- 3.11 and fully documented and supported its decision for denying parole pursuant to N.J.A.C. 10A:71-3.18(f). Also, the full Board found that the Adult Panel's decision is based upon a determination that a preponderance of the evidence indicates that there is substantial likelihood that you would commit a crime if released on parole at this time.
On appeal, appellant raises the following issues, many of which were raised and rejected below:
I. PAROLE BOARD WAS BIASED AND FAILED TO FOLLOW THEIR OWN MANDATED POLICIES AND PROCEDURES.
II. THE PAROLE PANEL FAILED TO USE PROPER DISCRETION WHEN IT GAVE A PSYCHOLOGICAL CLINICAL DIAGNOSIS AND SUGGESTED PARTICIPATION IN ONE TO ONE COUNSELING WHILE SERVING FUTURE ELIGIBILITY TERM.
III. THE PAROLE PANEL'S ASSERTION THAT APPELLANT LACKS INSIGHT AND MINIMIZES HIS CONDUCT IS WITHOUT MERIT.
IV. THE PAROLE PANEL'S ASSERTION THAT APPELLANT LACKS SINCERITY OR REMORSE FOR HIS CRIMES IS WITHOUT MERIT.
V. PAROLE PANEL FAILED TO CONSIDER MATERIAL FACTS WHICH SUBSTANTIALLY SUPPORTS CREDIBLE EVIDENCE THAT LIKELIHOOD DOES NOT EXIST THAT APPELLANT WOULD RE-OFFEND.
We have considered these contentions in light of the record and arguments of counsel and appellant pro se, and we are satisfied that none of them is of sufficient merit to warrant extended discussion in a written decision. R. 2:11-3(e)(1)(D) and (E). We add, however, only the following comments.
Preliminarily, we note that, because appellant committed the relevant offenses in 1993, the governing standard is that stated in N.J.S.A. 30:4-123.53(a), before its amendment on August 18, 1997,*fn1 which provided that the inmate shall be released on parole unless, by a preponderance of the evidence . . . there is a substantial likelihood that the inmate will commit a crime under the law of this State if released on parole at such time. [N.J.S.A. 30:4-123.53(a).]
In this determination, the Parole Board must consider the aggregate of all pertinent factors, including those set forth in N.J.A.C. 10A:71-3.11(b). See Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 360 (1973) ("Common sense dictates that [the Board's] prediction as to future conduct . . . be grounded on due consideration of the aggregate of all of the factors which may have any pertinence.").
Because such determinations are "highly individualized discretionary appraisals," a decision of the Parole Board concerning an inmate's suitability for parole under the statutory standard should not be reversed by a court unless found to be arbitrary or an abuse of discretion. Trantino v.
N.J. State Parole Bd., 154 N.J. 19, 25 (1998). We further recognize that the question whether a statutory standard has been met is essentially factual in nature, and that judicial review is limited to determining whether the Parole Board's "factual finding could reasonably have been reached on sufficient credible evidence in the whole record." Id. at 24 (quoting N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.) (holding that a parole decision is "essentially factual in nature" and extremely difficult; therefore, judicial review is limited to determining whether the Parole Board's "factual finding could reasonably have been reached on sufficient credible evidence in the whole record"), certif. denied, 111 N.J. 649 (1988)).
In addition, in reviewing the Parole Board's determination whether the standard for release has been met, we must give "due regard" to the ability of the factfinder to judge credibility, and, where an agency's expertise is a factor, to that expertise. State v. Locurto, 157 N.J. 463, 470-71 (1999). See, e.g., In re Polk License Revocation, 90 N.J. 550, 578 (1982) (holding the court should not substitute its judgment for that of the agency). This is especially so where, as here, the decision concerns a prediction as to an inmate's future behavior, a prediction fraught with subjectivity, mandating broad discretion in the Board's 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). Thus, the Parole Board's decision should only be set aside "'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)).
Here, the Parole Board's decision properly considered all relevant factors, correctly applied the governing standard, and is rationally supported by substantial facts in the record. In addition to the serious nature of both present and past offenses, the Board appropriately determined, based upon the Panel's interview and documentation in the file, that appellant lacked insight into his criminal behavior, had no empathy toward his victims, and minimized his criminal behavior. As for appellant's propensity for violence, whatever consideration the Board gave to his screenplay, which depicted graphic violent scenes, was far eclipsed by his extensive criminal history of increasingly violent acts, culminating in a carjacking in which appellant held a gun to his victim's head and threatened her life. While due regard was also given to mitigating factors, which the Board enumerated in its decision, the balance weighted in favor of denying parole, a determination with which we find no fault.