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Jerry Thomas v. New Jersey State Parole Board

July 5, 2011

JERRY THOMAS, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 June 15, 2011

Before Judges A. A. Rodriguez and Reisner.

Appellant Jerry Thomas appeals pro se from the November 24, 2009 final agency decision of the New Jersey State Parole Board, denying parole and establishing a 180-month future eligibility term (FET). We affirm.

Thomas is currently serving prison terms at East Jersey State Prison in Rahway, following three convictions, stemming from two separate incidents. Thomas was convicted of second-degree burglary and was sentenced to a seven-year term, with a three-year parole disqualifier. He was subsequently convicted of: (1) first-degree aggravated sexual assault for which he received an extended term of life with a mandatory twenty-five year minimum term; (2) second-degree burglary for which he received a seven-year term; and (3) third-degree possession of a weapon for unlawful purpose for which he received a nine-month term. The trial judge ordered that the sentences stemming from the second incident run consecutively.

On December 30, 1979, Thomas rang a doorbell at a woman's home in Vineland. When she answered it, Thomas forced the door open and grabbed her. He put his hand over her mouth, turned her around and stated, "don't look at me and turn off the light." Thomas took the woman upstairs, then guided her to a chair and told her to sit down. Thomas then left the premises. Later that day, he was arrested and the victim positively identified him as the intruder.

On September 10, 1980, while he was on bail on the burglary charge, Thomas raped a woman in her Vineland apartment. The woman was awakened in her bed by Thomas, who placed his hand over her mouth and stated, "don't say anything or I will kill you." Thomas tied a towel around her head to cover her mouth. He removed the towel from her head, took a knife from his pants pocket and forced the woman to perform fellatio on him. Then, Thomas tied the towel around her mouth and forced her to have intercourse with him. Eventually, he left the home.

During his period of confinement, Thomas had been adjudicated as having committing five institutional disciplinary infractions. In September 2008, after serving approximately twenty-seven years and eleven months of his sentences, Thomas became eligible for parole for the first time. After an initial hearing, the hearing officer referred the matter to a two-member Board Panel.

The two-member Board Panel denied parole and referred the matter to a three-member Board Panel for the establishment of an FET outside of the administrative guidelines. The two-member Board Panel based its decision on the following factors: prior criminal record; nature of criminal record increasingly more serious; presently incarcerated for a multi-crime conviction; prior opportunity on probation failed to deter criminal behavior; prior incarceration did not deter criminal behavior; commission of institutional disciplinary infractions which have resulted in loss of commutation time and confinement in detention; insufficient problem resolution, specifically, a lack of insight into criminal behavior, minimization of conduct, and failure to address a substance abuse problem, as demonstrated by the panel interview, documentation in the case file and confidential material/professional report.

The three-member Board Panel established a 180-month FET. The three-member panel noted that Thomas had participated in programs specific to behavior, achieved "Gang Minimum" custody status and had commutation time restored. In addition, the panel removed the "substance abuse problem not fully addressed" and added the "risk assessment evaluation." The panel detailed its reasoning in an eight-page narrative decision.

Thomas appealed to the full Parole Board. The Board upheld the denial of parole and established a 180-month FET.

On appeal, Thomas contends:

THE NEW JERSEY PAROLE BOARD'S UNFETTERED DISCRETION TO DEVIATE FROM ADMINISTRATIVE GUIDELINES WITH NO SET TIMETABLE ALLOWS AN ARBITRARY, CAPRICIOUS AND MECHANICAL OPERATION OF THE STATUTE, WHICH RESULTS IN VIOLATIONS OF THE STATUTES, CONSTITUTIONS OF NEW JERSEY AND THE UNITED ...


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