On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, Messano and LeWinn.
Appellant Maxwell Melvins is an inmate confined at Bayside State Prison in Leesburg. He appeals from a final decision of the New Jersey State Parole Board (Board) denying parole and establishing a future eligibility term (FET) of 120 months. The Board applied the wrong parole standard; arbitrarily refused to address Melvins's request for parole to a community release program; arbitrarily refused to apply a regulation permitting applications for reconsideration that was repealed after the three-member panel heard his case; and declined to consider new psychological evidence and address favorable reports in the record. Accordingly, we reverse and remand for reconsideration.
Melvins's sentence is for crimes he committed in 1980 when he was twenty years old. On July 25, 1980, Melvins fired shots on a public street in Camden. He had been involved is a dispute over a drug transaction and chased the person with whom he had the disagreement, shooting at him as he pursued him. A stray bullet hit and killed an innocent bystander.
A jury found Melvins guilty of murder, N.J.S.A. 2C:11-3; possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4; and unlawful possession of a handgun, N.J.S.A. 2C:39-5b. Following his conviction for murder and the related weapons offenses, Melvins pled guilty to entering without breaking with intent to steal, N.J.S.A. 2A:94-1, and larceny, N.J.S.A. 2A:119-2. Melvins was sentenced on December 23, 1980. He received a life sentence for murder, which is subject to a twenty-five-year period of parole ineligibility, N.J.S.A. 2C:11-3; a consecutive ten-year term for possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4; and a concurrent five-year term for unlawful possession of a handgun, N.J.S.A. 2C:39-5b. The judge also imposed one three-year term and one two-year term for entering without breaking with intent to steal, N.J.S.A. 2A:94-1, and larceny, N.J.S.A. 2A:119-2. The sentences for these crimes committed prior to the enactment of Title 2C were concurrent with his sentence for murder, and they were served long before Melvins first became eligible for parole.
Parole determinations require "highly 'individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998) (Trantino IV) (citations omitted). Despite the Board's broad discretion, we must review the decision, as we do decisions of other administrative agencies, to determine whether the Board has exercised its power arbitrarily or capriciously. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 172-73 (2001) (Trantino VI); N.J. State Parole Bd. v. Cestari, 224 N.J.Super. 534, 547-48 (App. Div.), certif. denied, 111 N.J. 649 (1988).
In conducting that review for arbitrary action, we must consider:
(1) whether the agency's action violates express or implied legislative policies, i.e., did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [Trantino IV, supra, 154 N.J. at 24.]
Under the applicable law, Melvins is entitled to release on parole unless a "preponderance of the evidence" indicates that "there is a substantial likelihood that [he] will commit a crime under the laws of this State if released on parole." N.J.S.A. 30:4-123.53(a) (as adopted by L. 1979, c. 441, § 9); cf. L. 1997, c. 213, § 1 (effective August 18, 1997). That standard applies because Melvins committed the crime in 1980 before the new standard was adopted. See Trantino VI, supra, 166 N.J. at 124.
Under this standard, the severity of the crimes committed has limited relevance. "[T]he gravity of the crime may not  be considered an independent reason for continuing punishment and denying parole . . . ." In re Trantino, 89 N.J. 347, 373 (1982). The punitive aspects of a sentence imposed under Title 2C are deemed satisfied at the time of parole eligibility. Trantino IV, supra, 154 N.J. at 25-26; see N.J. State Parole Bd. v. Byrne, 93 N.J. 192, 205 n.6 (1983). Thus, the question is not whether the inmate has been punished enough to exact adequate retribution. Trantino VI, supra, 166 N.J. at 122. Rather, the question is "whether the offender's punishment has been adequate to insure his individual progress toward rehabilitation." In re Trantino, supra, 89 N.J. at 373-74. "Rehabilitation is relevant . . . only as it bears on the likelihood that the inmate will not again resort to crime. It need not be total or full or real rehabilitation in any sense other than there is no likelihood of criminal recidivism." Trantino IV, supra, 154 N.J. at 31.
The Board's decision does not apply the applicable standard. Because the Board did not apply the law, we remand for reconsideration. Id. at 24 (quoted above). The Board urges us to disregard that error on the ground that it is a misstatement and the two- and three-member panels recited the proper standard. It is, however, the Board's decision that we are reviewing. Moreover, recitation of the standard is not a formality; the evidence presented to the Board must be assessed in light of the standard, and the Board should address the relevance of the two- and three-member panels' reliance on factors such as "lack [of] insight" based on findings such as the following: "After twenty years of incarceration, you are unable or unwilling to offer an acceptable explanation as to why you conducted yourself in the anti-social manner you did leading up to your present offenses."
We recognize the Board members' expertise and that we are not to substitute our view for theirs, but without guidance from the Board it is difficult to understand why Melvins's explanation was deemed "unacceptable." Melvins had offered his insight as to why he committed the crimes. These are the passages of Melvins's presentation that the panels selected to demonstrate that his explanation was not "acceptable." He admitted he was "reckless at the time" because he "was a reckless person" and "[b]ecause of who [he] was at the time and the life that [he had been] living . . . it was only [a matter] of time that something like that would be happening." In addition, he noted that at that time he "had no problem solving skills . . . no control over [his] anger." He was "an irresponsible person" and "he[ld] no regards to authority for anybody at ...