On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and J. N. Harris.
Appellant Kevin Stout appeals from the May 26, 2010 final decision of the New Jersey State Parole Board (the Board) that denied his application for parole and established a future parole eligibility term (FET) of 180 months. We affirm the denial of parole, but reverse the FET and remand to the Board to establish an FET that is reasonable and in harmony with current legislative approaches to parole.
I. Stout, now almost fifty-years old, is an inmate currently incarcerated at South Woods State Prison. Having been convicted of murder, Stout is serving a sentence imposed in 1982 of life imprisonment with a minimum term of twenty-five years. His criminal history between 1977 and 1982 was extensive; it included several parole violations, and Stout received incarcerative sanctions accordingly. In 1997, while serving the life sentence at East Jersey State Prison, Stout was convicted, on a guilty plea, of possession of a controlled dangerous substance, for which he was sentenced to a concurrent five-year term.
Stout's behavior while incarcerated, aside from the 1997 conviction, was far from exemplary. According to the Notice of Decision of the Board's three-member panel, Stout "incurred at least nine asterisk (serious) infractions and at least thirty-six non-asterisk (less-serious) infractions. See N.J.A.C. 10A:4-4.1(a) ("Prohibited acts preceded by an asterisk (*) are considered the most serious and result in the most severe sanctions."). Nevertheless, the last time Stout was found guilty of a prohibited act -- *.204 ("use of any prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff") -- was in 2000. However, the three-member panel highlighted that it "cannot overlook [Stout's] overall abysmal institutional adjustment."
Stout's first parole eligibility date on his current sentence was in January 2009. An initial parole release hearing was conducted in August 2008, and the matter was referred to a Board panel pursuant to N.J.A.C. 10A:71-3.15(b) ("In the case of an offender serving a term for the crime of murder . . . the hearing officer shall refer the case for a hearing before the appropriate Board panel."). In September 2008, a two-member panel denied parole and referred the matter to a three-member panel to establish an FET.
In its decision to deny parole, the two-member panel found six mitigating factors in Stout's favor:
fl Participation in program(s) specific to behavior.
fl Participation in institutional program(s). fl Average to above average institutional report(s). fl Attempt made to enroll and participate in program(s) but was not admitted. fl Minimum custody status achieved/maintained. fl Commutation time restored.
However, it also found ten aggravating factors:
fl Prior criminal record is extensive and/or repetitive.
fl Presently incarcerated for multi-crime ...