May 17, 2010
DONALD CLAY, APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
On appeal from the New Jersey State Parole Board.
The opinion of the court was delivered by: R. B. Coleman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 8, 2009
Before Judges R. B. Coleman and Graves.
Donald Clay is a thirty-two year old inmate currently incarcerated at South Woods State Prison in Bridgeton who is appealing from a final agency decision of the New Jersey State Parole Board (the Board) denying him parole and imposing a ninety-six month future eligibility term (FET). We have considered Clay's arguments in light of applicable law, and we affirm the Board's decision.
Clay is serving an aggregate thirty-year prison sentence. The details of his conviction and sentencing under indictment number 96-12-0488 are as follows: twenty-five years imprisonment with a five-year parole disqualifier for first-degree carjacking in violation of N.J.S.A. 2C:15-2 (count one); eighteen years imprisonment served concurrently with count one for first-degree armed robbery in violation of N.J.S.A. 2C:15-1(a)(2) (count two); and, five years imprisonment served consecutively to counts one and two for third-degree escape in violation of N.J.S.A. 2C:29-5 (count eight). The sentence under indictment number 96-12-0488 is being served consecutively to an outstanding juvenile commitment for armed robbery that, as a result of Clay's escape, had not been completed by him.*fn1
Clay's only New Jersey conviction prior to that under indictment number 96-12-0488 was for the juvenile offense that occurred on August 22, 1995, in Atlantic City. On that date, Clay threatened a pizza delivery person with a handgun, demanding his money. The victim said that he had no money and offered Clay pizza instead. Clay then got into the victim's mini-van and backed-up, striking the victim. The victim managed to enter the van with Clay, and the motor vehicle was in an accident a short distance later. Clay fled the accident, but was later apprehended by the Atlantic City Police Department and charged with juvenile delinquency offenses (aggravated assault, armed robbery, and carjacking). On October 3, 1995, at age seventeen, Clay was sentenced to serve an indeterminate term of four years in a juvenile correctional facility; however, on May 3, 1996, he escaped from Warren Residential Community Home, to which he had been transferred.
On May 4, 1996, Clay approached two sisters removing items from the trunk of their car in White Township. He demanded that the sisters give him the keys to their car and pointed at them what they believed to be a gun under a white handkerchief. Noticing the keys were still inside the locking assembly of the trunk, Clay took the keys, entered the car, and drove away. The sisters called the police. Warren Residential Community Home was only a quarter mile away from the scene of the incident, and knowing Clay had escaped the day before, a Trooper showed the sisters his photo. They positively identified him as the person who stole their car.
On October 29, 1996, Clay was arrested in Orange County Florida by the Orange County Police Department on the offenses of grand theft motor vehicle, possession of twenty grams of marijuana, resisting an officer without violence and burglary of a dwelling. The New Jersey authorities were notified of Clay's custody status and a detainer was issued.
On December 11, 1996, a Warren County Grand Jury indicted Clay on charges of carjacking, armed robbery, robbery, possession of a weapon for an unlawful purpose, unlawful possession of a weapon (handgun), theft, aggravated assault and escape. Clay pled not guilty.
On March 5, 1997, Clay appeared in the Circuit Court of Orange County and, after a plea of nolo contendere, was sentenced to 172 days imprisonment in Orange County Jail with 127 days credit for time already served. After the completion of the Florida sentence, Clay was returned to New Jersey to serve the remainder of his juvenile offense sentence and to await trial on the offenses charged in indictment number 96-12-0488.
On August 18, 1998, Clay appeared for trial in Warren County Superior Court on indictment number 96-12-0488, and a jury found him guilty of carjacking, armed robbery, robbery, the amended charge of unlawful taking of means of conveyance, and escape. All remaining charges were dismissed.
When Clay became eligible for parole, a two-member Board panel considered his case on November 15, 2007. The panel denied parole and determined that Clay's lack of progress warranted an FET in excess of the presumptive twenty-seven month FET delineated in N.J.A.C. 10A:71-3.21(a)(1). Accordingly, the case was referred to a third Board member, pursuant to N.J.A.C. 10A:71-3.21(d)(1). On February 13, 2008, the now three-member Board panel determined that imposing a ninety-six month FET was appropriate in this case. Clay appealed that decision to the full Parole Board, which affirmed the denial of parole and the imposition of the ninety-six month FET. This appeal followed.
Clay contends that the Board: (1) falsified the documents submitted to the Appellate Division; (2) should not have considered any juvenile offenses; and, (3) was arbitrary and capricious in its imposition of the ninety-six month FET. The scope of judicial review of such administrative agency decisions is narrowly tailored. In re Taylor, 158 N.J. 644, 656 (1999). We must simply review whether there was sufficient credible evidence in the record to support the Board's conclusions. Ibid.; Clowes v. Terminix Int'l. Inc., 109 N.J. 575, 588 (1988); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). The Board's decisions are considered highly "'individualized discretionary appraisals,'" and consequently, the "Board 'has broad but not unlimited discretionary powers'" in reviewing an inmate's parole record and rendering a release decision. 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)). See also Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 9-10, 99 S.Ct. 2100, 2105, 60 L.Ed. 2d 668, 677 (1979) ("The parole-release 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.").
The decision of the Board involves a "'discretionary assessment of a multiplicity of imponderables, entailing primarily what a man is and what he may become rather than simply what he has done.'" Greenholtz, supra, 442 U.S. at 10, 99 S.Ct. at 2105, 60 L.Ed. 2d at 677 (quoting Sanford H. Kadish, The Advocate and the Expert -- Counsel in the PenoCorrectional Process, 45 Minn. L. Rev. 803, 813 (1961)). One of these "imponderables" is the prediction of 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). Because the parole decision process is inherently subjective, ultimately it must be made by those with experience and expertise in this field. See Beckworth, supra, 62 N.J. at 367-68; Greenholtz, supra, 442 U.S. at 10, 99 S.Ct. at 2105, 60 L.Ed. 2d at 677. "Nevertheless, although the Board has broad discretionary powers, 'its determinations are always judicially reviewable for arbitrariness[.]'" Kosmin v. N.J. State Parole Bd., 363 N.J. Super. 28, 41 (App. Div. 2003) (quoting Trantino VI, supra, 166 N.J. at 173).
We are satisfied that the Board considered all the relevant material facts and had sufficient credible evidence to deny the parole request, extend the FET beyond the presumptive term, and that it acted within its discretion in setting a ninety-six month FET. See N.J.A.C. 10A:71-3.11; N.J.A.C. 10A:71-3.21. In its statement of reasons for the denial of Clay's parole, the three-member Board panel noted, in compliance with N.J.A.C. 10A:71-3.11 and N.J.A.C. 10A:71-3.21, that: (a) Clay's criminal record showed an escalating degree of severity with each crime; (b) prior incarceration as a juvenile did not deter further criminal behavior; (c) Clay was being held for a multi-crime conviction; (d) he compiled twenty-two institutional disciplinary infractions, including at least fifteen more serious asterisk infractions, resulting in eighty-five days in detention, 960 days loss of commutation credits, and approximately 720 days of placement in Administrative Segregation; (e) he exhibited insufficient problem resolution, specifically a lack of insight into his violent and maladaptive behavior and a minimization of his criminal offenses; and (f) he showed a medium risk for recidivism.
The panel noted certain mitigating factors: (a) that Clay participated in Alcoholics Anonymous; (b) that he was on the waiting list for the Culinary Arts program; and, (c) he had written a letter of mitigation. Nevertheless, the panel gave the following specific reasons for establishing the FET of ninety-six months: (a) lack of insight into the cause of his past violent behavior and his "criminal personality characteristic"; (b) the completion of only one rehabilitative program, Alcoholics Anonymous; and, (c) the multiple institutional infractions. Considering this evidence, in the light of the applicable deferential standard, we find nothing arbitrary or capricious about the Board's denial of Clay's request for parole, and the extension of his FET to ninety-six months.
Clay argues that the ninety-six month FET is outside the parameters of the regulations and is an abuse of the three-member Board panel's discretion to extend a FET beyond twenty-seven months. We disagree. See, e.g., McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 565, (App. Div. 2002) (upholding the establishment of a thirty-year FET). See also 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).
The rest of Clay's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).