June 16, 2010
LOUIS WATLEY, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 May 25, 2010
Before Judges Skillman and Gilroy.
Appellant Louis Watley appeals from the December 17, 2008 final decision of the New Jersey State Parole Board (the Board) that denied him parole and established an eighteen-month future eligibility term (FET). We affirm.
On October 6, 2001, a jury found appellant guilty of first- degree aggravated sexual assault, fourth-degree kidnapping, fourth-degree criminal sexual contact, and third-degree terroristic threats. On March 9, 2001, the trial court sentenced defendant to an aggregate term of eighteen years of imprisonment. On October 21, 2004, a two-member Panel of the Board denied appellant parole and set a twenty-seven month FET.
The Board affirmed on March 30, 2005. In an unpublished opinion, we affirmed. Watley v. N.J. State Parole Bd., No. A- 4558-04 (App. Div. January 13, 2006).
Appellant became eligible for parole again in June 2006. On May 18, 2006, a two-member Panel conducted a parole hearing that included an interview with appellant. After the hearing and a review of appellant's parole file which included a mental health evaluation report of May 4, 2006, the Panel issued its decision denying parole and establishing an eighteen-month FET, finding that "a substantial likelihood exists that [appellant] would commit a new crime if released on parole at this time."*fn1
The Panel stated the following reasons for denying parole: the nature of appellant's record was becoming increasingly more serious, appellant's prior incarcerations failed to deter his criminal behavior, and appellant's insufficient problem resolution, specifically, his lack of insight into his criminal behavior and minimization of his criminal conduct. In a handwritten note, the Panel further explained: "No Insight"; "No Focus On Victim," and "Blames [the] State for his Incarceration." On January 10, 2007, the Board affirmed the Panel's decision.
On appeal, we determined that the first two factors for denying parole were supported in the record. However, as to the third factor, insufficient problem resolution, we were not able to ascertain from the record whether the three reasons of "No Insight," "No Focus on Victim," and "Blames [the] State for his Incarceration" were considered by the Board in weighing the likelihood of another offense, or whether they were considered for the improper purpose in punishing appellant. Accordingly, we vacated the Board's decision and remanded for reconsideration. Watley v. N.J. State Parole Board, No. A-3455- 06 (App. Div. June 25, 2008) (slip op. at 11).
Following our remand, appellant again became eligible for parole. On April 24, 2008, the Board Panel denied parole and established a twenty-seven month FET. On November 26, 2008, the Board confirmed the Panel's decision. That decision is also the subject of an appeal which we are affirming in a separate, unreported opinion simultaneously filed with this opinion, Watley v. New Jersey State Parole Board, No. A-2550-08 (App. Div. 2010).
On July 25, 2008, the Panel reconsidered the matter on the May 18, 2006 record, including listening to the sound recording made of the hearing that day, and issued a seven-page written decision addressing the issues for which the matter had been remanded. On reconsideration of the matter, the Panel denied parole and established an eighteen-month FET. On December 17, 2008, the Board affirmed. In so doing, the Board reasoned in part:
The Adult Panel's Notice of Decision specifically cited as a reason for denial that you exhibit insufficient problem resolution, specifically, that you lack insight into your criminal behavior and minimize your conduct. The Adult Panel clearly articulated your lack of insight and minimization of your criminal behavior in its narrative Notice of Decision.
The Adult Panel specifically noted the minimal description you provided of your commitment offenses and your failure to mention your state of mind at the time of the offenses or what you believe to have been the causes for your deviant and violent behavior. The Panel noted that you repeatedly stated during your hearing that you should be paroled, but in no way did you elucidate any substantive insight into your maladaptive behavior. Furthermore, the Panel noted that you distance yourself from accepting true responsibility for your criminal conduct and that you are unable to verbalize your criminal actions. Your lack of insight is supported by the excerpts of your discussion with the Panel, which is detailed on pages three through five of the narrative Notice of Decision. In addition, the Adult Panel fully summarizes its determination of your lack of insight on page seven of the Notice.
Furthermore, the Panel noted that you failed to focus on the victim and "offered nothing that could be construed as empathy, compunction or concern towards your victim." The Panel also noted that your inability to articulate any genuine remorse and empathy towards the victim of your offenses demonstrates that you have an apathetic and indifferent attitude about your crimes, your victim and how you emotionally scarred her.
Contrary to your claims, your lack of insight; your minimization of your criminal behavior; your failure to accept true responsibility for your criminal actions; and your lack of remorse or empathy for the victim, are described in full detail in the narrative Notice of Decision . . . .
On appeal, appellant argues:
PAROLE BOARD ERRED IN ITS FAILURE TO ADHERE TO THE "LAW OF THE CASE" ON REMAND RECONSIDERATION MANDATE OF THE APPELLATE DIVISION.
PAROLE PANEL AND BOARD ERRED IN DENYING PETITIONER RELIEF ON RECONSIDERATION MANDATE OF THE APPELLATE DIVISION, WHERE THOSE ADMINISTRATIVE OFFICES SOUGHT TO BLUR AND MISSTATE THE FACTS IN THE CASE.
A. PANEL IMPROPERLY MAINTAINED THAT ACCUSATIONS OF CRIMINAL BEHAVIOR WHERE THE PETITIONER WAS NOT CHARGED AND/OR FOUND NOT GUILTY WOULD BE USED IN DETERMINING PAROLE ELIGIBILITY.
B. ADULT PANEL AND BOARD ERRED IN DETERMINING THAT FAILURE TO FOCUS ON THE HARM TO THE VICTIM WAS AN APPROPRIATE AGGREGATING FACTOR FOR PAROLE DENIAL WHERE [STATUTE] SPECIFICALLY STATES THAT SUCH A REFERENCE IS IRRELEVANT TO THE STANDARD FOR RELEASE. N.J.S.A. 30:4-123.53 (AS ENACTED BY L. 1979, C. 441, § 9).
C. ADULT BOARD ERRED IN SUPPORTING THE PANEL'S CONTENTION THAT "PETITION[ER] BLAMED STATE FOR INCARCERATION" WHERE THE RECORD DOES NOT REFLECT PETITIONER MAKING SUCH A STATEMENT TO THE PANEL, THE STATE DID VIOLATE THE PETITIONER'S DUE PROCESS RIGHTS AND ADULT PANEL CAN NOT USE THE FACT THAT PETITIONER IS APPEALING THE CONVICTION AS A CRITERIA TO DENY PAROLE.
D. PAROLE BOARD['S] CONCLUSION DID NOT GIVE NATURE OF THE PETITIONER'S RECORD  PROPER WEIGHT TO MITIGATING VERSUS AGGRAVATING FACTORS IN ITS DECISION WHERE PETITIONER TOOK RESPONSIBILITY FOR THE CRIME, HAD COMPLETED PROGRAM PLAN AND THE PAROLE PSYCHOLOGIST['S] RISK ASSESSMENT WAS FAVORABLE.
ADULT BOARD ERRED BY CONTENDING THAT PETITIONER HAD NOT MAXIMIZE SUPPORTIVE COUNSELING PROGRAMS, WHERE THE BOARD AND PANEL CONCEDED THAT PETITIONER HAD COMPLETED HIS PROGRAM PLAN AND THERE EXISTED NO BASIS FOR REQUESTING PETITIONER PARTICIPATION IN ADDITIONAL REHABILITATIVE STUDIES.
ADULT PANEL FINDINGS IN AN ADMINISTRATIVE REVIEW WERE ARBITRARY AND CAPRICIOUS WHERE THE CONCLUSION [WAS] BASED ON QUESTIONS NEVER PRESENTED THEREFORE LACKED ANY EVIDENCE IN THE RECORD NEED[ED] FOR SUPPORT.
[A.] WHAT WAS THE MOTIVATION FOR COMMITTING THE CRIME?
[B.] THE PANEL NOTES A SIGNIFICANTLY DISTORTED BELIEF SYSTEM WHICH LED YOU TO COMMIT EGREGIOUS PERSONAL VIOLATIONS OF A YOUNG FEMALE.
[C.] FAILURE OF APPELLANT TO DEMONSTRATE REMORSE.
[D.] INABILITY TO SUPPLY ADEQUATE DETAILS SURROUNDING THE RAPE.
Our role in reviewing the decision of an administrative agency is limited. Circus Liquors, Inc. v. Middletown Twp., 199 N.J. 1, 9 (2009). Parole Board decisions are considered "highly 'individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). Consequently, "the Board has broad but not unlimited discretionary powers" in reviewing an inmate's parole record and rendering a release decision. Ibid. (quotation omitted). The administrative regulations contain twenty-three factors for the Parole Board's consideration in making parole decisions. N.J.A.C. 10A:71- 3.11(b). From those factors, the Board must consider those "applicable in each case." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 561 (App. Div. 2002).
We have considered appellant's arguments in light of the record and applicable law. We conclude that the arguments are without sufficient merit to warrant discussion in a full written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comments.
Appellant argues in Point I of his brief that the Board failed to comply with this court's remand directive to reconsider his parole eligibility in light of our prior opinion, Watley, supra, No. A-3455-06 (slip op. at 11) and to explain how the Board used the factors of - no insight, no focus on the victim, and blames the State for his incarceration - in determining that appellant demonstrated insufficient problem resolution. Appellant argues that the Board disregarded our directive and "made a new determination denying parole and fixing an eighteen-month FET," citing Kosmin v. N.J. Parole Bd., 363 N.J. Super. 28 (App. Div. 2003). We find appellant's reliance on Kosmin misplaced.
In Kosmin, an inmate appealed from a Parole Board Panel's decision denying parole without the Panel specifying the reasons for its decision. The inmate accompanied her notice of appeal with a motion seeking leave to proceed without a written statement of reasons of the Panel's decision. Id. at 37-38. We denied the motion but entered an order directing the Parole Board to issue a statement of reasons within twenty days. Id. at 38. Contrary to our order, the Parole Board "opted to ignore that directive, to vacate its decision and to hold a new hearing." Id. at 40.
Here, contrary to Kosmin, we vacated the Board's January 10, 2007 decision and remanded the matter for reconsideration of parole eligibility in light of our opinion. Watley, supra, No. A-3455-06 (slip op. at 11). In so doing, we stated: "In the event the Board reaches the conclusion that there is a 'substantial likelihood' that Watley will commit another crime if released on parole, we direct that the Board's decision be clearly and specifically articulated in its factual and legal basis." Ibid. We have considered the Panel's July 25, 2008 decision, as affirmed by the Board's decision of December 17, 2008, and are satisfied that the Board did not conduct a new parole hearing; rather, it reconsidered its prior decision in light of this court's June 25, 2008 opinion and fully addressed our stated concerns. The Board's decision is based on credible evidence in the record. R. 2:11-3(e)(1)(D).