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Samuel Pettaway v. New Jersey State Parole Board

June 3, 2011

SAMUEL PETTAWAY, APPELLANT,
v.
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.



On appeal from the New Jersey State Parole Board.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 23, 2011

Before Judges Lisa and Sabatino.

Appellant, Samuel Pettaway, a State Prison inmate, appeals from the January 27, 2010 final decision of the New Jersey State Parole Board (Board) denying him parole and imposing a fifteen-year future eligibility term (FET). For the reasons that follow, we affirm the denial of parole, but reverse the FET and remand to the Board to re-determine the length of the FET.

Appellant is serving several sentences, arising out of several criminal convictions from the early 1980s. The most heinous among them occurred on November 14, 1981, when appellant, who was then on bail for pending criminal charges, acting with two co-perpetrators, kidnapped and repeatedly raped a teenage girl.

On that occasion, appellant and his cohorts observed a teenage couple in a parked car. They forcibly removed the teenagers from the car. They pistol-whipped the boy, locked him in the trunk of a stolen car, and left him there. They then drove the girl a substantial distance to a desolate area, where they stripped her of her clothing and vaginally raped her five times. They then inserted a bottle and the handle of a hammer into her vagina. Appellant and his compatriots were laughing during the course of the assaults. They eventually released the girl, after which they drove the vehicle, which was owned by the boy they had kidnapped, to another location, where they stripped it and burned it.

For this episode, appellant was convicted of aggravated assault, armed robbery, two counts of theft, two counts of kidnapping, robbery, possession of a weapon for an unlawful purpose, six counts of aggravated sexual assault while armed, and aggravated arson. Appellant was initially sentenced for these offenses on September 21, 1983. After a remand from this court, he was resentenced on September 18, 1987. His ultimate sentence for these offenses was eighty-seven years imprisonment with a twenty-five-year parole disqualifier. When aggregating this sentence with those appellant is serving for his other crimes, his overall sentence is ninety-seven years with a twenty-five-year parole disqualifier.

Appellant first became eligible for parole on September 12, 2008. The matter was referred to a two-member panel.

The panel considered these aggravating factors: extensive and repetitive prior record; nature of the criminal record being increasingly more serious; presently incarcerated for multi-crime convictions; committed new offenses while on juvenile parole; prior opportunities on juvenile probation failed to deter criminal behavior; prior opportunities on probation were violated; prior incarceration did not deter criminal behavior; commission of numerous, persistent, and serious institutional infractions, resulting in loss of commutation time and administrative segregation (the last infraction having occurred on December 6, 2006); and insufficient problem resolution (marked by lack of insight into criminal behavior and minimization of conduct).

The panel considered as mitigating factors: participation in programs specific to behavior; participation in institutional programs; attempts to enroll and participate in programs for which he was not admitted; and restoration of commutation time.

The panel also considered appellant's unfavorable risk assessment evaluation, his panel interview, and his pre-parole report. The panel considered all of the documentation in appellant's case file, including a confidential professional report.

Based upon the assessment of these factors, the two-member panel found that a substantial likelihood existed that appellant would commit a new crime if released on parole at that time. Accordingly, it entered a decision denying parole and referring the matter to a three-member panel for establishment of an FET.

Appellant submitted a written statement to the three-member panel. He provided information and submitted arguments by way of mitigation for the panel's ...


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