October 21, 2010
JEFFREY CAMERON, APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
On appeal from a Final Decision of the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 5, 2010
Before Judges Skillman and Yannotti.
Appellant Jeffrey Cameron appeals from a final decision of the Parole Board that denied his application for parole and established a future parole eligibility term of 120 months. We affirm the denial of parole, but reverse the future parole eligibility term and remand to the Board to establish a parole eligible term that will make appellant eligible for parole consideration in no more than thirty-six months.
Appellant is serving a life term for an aggravated manslaughter committed in 1983. He has completed the twenty-five-year period of parole ineligibility imposed as part of that sentence.
Appellant committed a significant number of prison disciplinary infractions during the first thirteen years of his sentence. However, he has not committed any disciplinary infractions over the last decade.
The psychological evaluation of appellant conducted in connection with his application from parole concluded that he has "a medium to moderate chance for recidivism."
The Parole Board gave the following reasons for denying appellant's application for parole:
[P]rior criminal record is extensive and repetitive; nature of criminal record increasingly more serious; committed new offenses on parole but status not formally revoked; prior opportunities on probation and parole have failed to deter criminal behavior; prior opportunity on parole has been violated in the past; prior incarcerations did not deter criminal behavior and you committed your most recent institutional infraction *204, use of any prohibited substance such as drugs, intoxicants or related paraphernalia on March 28, 1998.
The Board gave these additional reasons for denying appellant parole:
[B]ased on your responses to questions posed by the Panel at the time of the hearing and documentation in the case file, the Panel appropriately determined that you exhibit insufficient problem resolution, specifically, that you lack insight into your criminal behavior, minimize your conduct and have not sufficiently addressed your substance abuse problem. . . . In addition, the Panel noted that you have not attempted to address a serious ongoing addiction and you do not understand your anti-social criminal behavior.
However, the Board also noted certain mitigating factors applicable to consideration of appellant's release on parole:
[P]articipation in programs specific to behavior, participation in institutional programs, average to above average institutional reports, and attempts made to participate in programs but was not admitted.
Because appellant's offenses were committed in 1983, the governing standard, as then set forth in N.J.S.A. 30:4-123.53(a), required his release on parole unless it was established "by a preponderance of the evidence that 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." L. 1979, c. 441, § 9.*fn1 The Parole Board's determination that "there is a substantial likelihood an inmate will commit another crime if released" on parole must be affirmed on appeal if "[that] factual finding could reasonably have been reached on sufficient credible evidence in the whole record." Trantino v. N.J. State Parole Bd., 166 N.J. 113, 172 (2001) (quoting Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24 (1998)).
We are satisfied that there is sufficient credible evidence in the record to support the Parole Board's finding that there is a substantial likelihood appellant would commit another crime if released on parole. That evidence includes appellant's lengthy criminal record culminating in commission of the aggravated manslaughter for which he is now incarcerated, his failure to successfully complete parole and probation in the past, his history of disciplinary infractions during the first thirteen years of his incarceration, his failure to adequately address his history of addiction, and the psychologist's conclusion that he has a medium to moderate chance of recidivism. Although there are also mitigating factors in appellant's case, which we will discuss further in connection with our review of appellant's future parole eligibility term, it was within the Board's discretionary power to determine that the considerations militating in favor of the finding that there is a substantial likelihood appellant would commit another crime if released on parole outweigh those mitigating considerations. Therefore, we conclude that the Board did not abuse its discretion in denying appellant's application for release on parole.
N.J.S.A. 30:4-123.56(a) requires the Parole Board to "develop a schedule of future parole eligibility dates for adult inmates denied release at their eligibility date." In the exercise of this statutory responsibility, the Board has adopted regulations that provided in pertinent part at the time appellant's application for parole was denied:
(a) Upon determining to deny parole to a prison inmate, a two-member adult Board panel shall, based upon the following schedule, establish a future parole eligibility date upon which the inmate shall be primarily eligible for parole.
1. Except as provided herein, a prison inmate serving a sentence for murder, manslaughter, aggravated sexual assault or kidnapping or serving any minimum-maximum or specific sentence in excess of 14 years for a crime not otherwise assigned pursuant to this section shall serve 27 additional months.
(c) The future parole eligibility dates required pursuant to (a) and (b) above may be increased or decreased by up to nine months when, in the opinion of the Board panel, the severity of the crime for which the inmate was denied parole and the prior criminal record or other characteristics of the inmate warrant such adjustment.
(d) A three-member Board panel may establish a future parole eligibility date which differs from that required by the provisions of (a) or (b) and (c) above if the future parole eligibility date which would be established pursuant to such subsections is clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior. . . . [N.J.A.C. 10A:71-3.21.]
Thus, under these regulations, the normal future parole eligibility term for a person convicted of manslaughter is twenty-seven months. This term is subject to extension for up to another nine months if warranted by "the severity of the crime for which the inmate was denied parole and the prior criminal record or other characteristics of the inmate."
N.J.A.C. 10A:71-3.21(c). In addition, the regulation in effect at the time the Board denied appellant parole authorized an additional extension of the future parole eligibility term if the term that would otherwise be established "is clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior."
The Parole Board exercised its authority under this subsection to establish an extended 120 month future parole eligibility term. In doing so, the Board relied upon substantially the same considerations it had relied upon in denying appellant's application for release on parole.
We conclude that the Board abused its discretion in establishing such a lengthy future parole eligibility term. Although the Board denied appellant parole, it recognized that there were some mitigating circumstances in his case that show he is making progress in reducing the likelihood of future criminal behavior, including the absence of any disciplinary infractions during the last ten years, average to above average institutional reports, participation in institutional programs, and attempts to participate in other programs for which he had not been admitted. Under these circumstances, we perceive no basis for establishment of a future parole eligibility term any longer than thirty-six months.
This conclusion is reinforced by the 2009 amendment to N.J.S.A. 30:4-123.56(a), which now precludes the Parole Board from establishing a future parole eligibility date that is "more than three years following the date on which an inmate was denied release." L. 2009, c. 330, § 6.*fn2 Although this amendment was not effective when appellant's future parole eligibility term was established, it reflects a legislative policy judgment that the kind of lengthy future eligibility term established in appellant's case is not appropriate under any circumstances.
Accordingly, we affirm the part of the Board's decision that denied appellant parole. We reverse the part of the Board's decision that established a 120 month future parole eligibility term and remand to the Board to establish a future parole eligibility term of not more than thirty-six months.