August 2, 2011
WILLIE JOHNSON, APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 10, 2011
Before Judges Graves and Messano.
Willie Johnson appeals from the final decision of the Parole Board (the Board) that affirmed the two-member adult panel's decision denying parole and establishing a thirty-six month future parole eligibility term (FET).
Johnson was convicted in 1976 of committing two rapes, kidnapping and related charges in two separate indictments. He was first paroled in 1994, but his parole was revoked on March 16, 1999.*fn1 Johnson was again paroled in 2001 and a maximum expiration date of November 1, 2015 was set.
On October 24, 2006, Johnson was arrested at his residence in Whitehall, Pennsylvania, for another parole violation. The charged specifications included Johnson's failure to: report; obtain approval to leave the state; obtain approval to change his residence; and submit to drug or alcohol testing. Johnson waived his right to a final revocation hearing, his parole was revoked again, and he was returned to custody. A fifteen-month FET was set. On August 14, 2007, Johnson was again denied parole and a thirty-six month FET was set.
In May 2009, a preliminary hearing was held in anticipation of presentation of Johnson's parole request to a two-member adult panel. Johnson had committed two asterisk offenses while incarcerated. See N.J.A.C. 10A:4-4.1. The first, in 1991, involved possession of narcotics; the second, in 2006, involved a fight with another inmate. Johnson was psychologically evaluated and found to present a "moderate" risk for recidivism. Johnson continued to assert that he was not guilty of one of the rape charges because he engaged in consensual sex with the alleged victim. His version was contradicted by the underlying investigative reports of the incident.
The panel conducted a hearing on September 24, 2009, and denied parole. The panel found certain mitigating factors, specifically, Johnson's favorable institutional adjustment, his attempt to participate in programs, and "[a]verage to above average institutional report[s]. However, the panel found the following reasons supported denying parole: Johnson's prior criminal record; the increasingly serious nature of that record; his incarceration for multiple crimes; prior opportunities for probation and parole that resulted in violations and a failure to deter; and "[i]nsufficient problem resolution." Specifically, the panel noted that "[a]fter all these years," Johnson "still has not attempted to deal with the issues of his assaultive behavior. Troubling is the attitude towards his obligation with supervision to prevent his return to the criminal behavior he has yet to understand." The panel set a thirty-six month FET.
Johnson administratively appealed. After a hearing on May 26, 2010, the Board affirmed the panel's decision. This appeal followed.
Before us, Johnson raises the following points on appeal:
APPELLANT WAS DENIED A FAIR PAROLE REVIEW WHEN THE BOARD PANEL FAILED TO BASE ITS DECISION ON THE APPROPRIATE PAROLE STATUTES AND REGULATIONS THUS VIOLATING APPELLANT'S CONSTITUTIONAL RIGHTS UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.
APPELLANT WAS DENIED A FAIR PAROLE REVIEW WHEN THE BOARD PANEL CONSIDERED THE WRONG FACTORS IN MAKING IT[S] DECISION.
APPELLANT WAS DENIED A FAIR PAROLE REVIEW WHEN THE BOARD PANEL FAILED TO CONSIDER MATERIAL FACTS.
THE BOARD PANEL ERR[ED] WHEN IT INSTITUTED A [FET] OF THIRTY-SIX MONTHS BECAUSE IT IS BASED ON THE WRONG GUIDELINES MAKING IT EXCESSIVE AND ILLEGAL.
THE PAROLE BOARD MEMBERS DEMONSTRATED BIAS AND PREJUDICE AT THE PAROLE HEARING WHICH PRECLUDED IT FROM MAKING A FAIR CONSIDERATION FOR PAROLE.
THE BOARD PANEL ERRED IN ITS CONCLUSION THAT APPELLANT HAD INSUFFICIENT PROBLEM RESOLUTION.
THE BOARD PANEL'S DECISION WAS ARBITRARY AND CAPACIOUS [SIC] BECAUSE A SUBSTANTIAL LIKELIHOOD THAT APPELLANT WOULD COMMIT A CRIME IF RELEASED DID NOT EXIST.
THE APPELLANT WAS DENIED FAIR CONSIDERATION FOR PAROLE AND HIS PROTECTED INTEREST[S] WERE INFRINGED WHEN THE BOARD VIOLATED THE PROFESSIONAL CODE OF CONDUCT.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
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). In conducting that review, 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.]
We must accord the Board's decision a presumption of validity, and the burden is on the challenging party to show that the Board's actions were unreasonable. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994). "A court may not substitute its judgment for that of the agency." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002).
Because Johnson is serving a sentence imposed under Title 2A, the predecessor to the New Jersey Code of Criminal Justice now codified under Title 2C, he 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); see also N.J.A.C. 10A:71-3.10(a) ("In the case of an inmate serving a sentence for an offense committed prior to August 19, 1997, the Board panel shall determine whether . . . by a preponderance of the evidence there is a substantial likelihood that the inmate will commit a crime under the laws of the State of New Jersey if released on parole."). "The current standard for Title 2A inmates involves a limited consideration of rehabilitation as it affects individual deterrence." McGowan, supra, 347 N.J. Super. at 561 (citing Trantino IV, supra, 154 N.J. at 27). The "likelihood of recidivism" is the "focus applie[d] to the FET determination as well." Id. at 565.
On appeal before us, Johnson reiterates the arguments made to the Board. With the exception of Point IV, Johnson's arguments may be distilled to one essential claim, i.e., that the Board's decision denying him parole was arbitrary and capricious. The contention lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(1)(E).
The Board clearly applied the proper statutory standard and considered the factors set forth in N.J.A.C. 10A:71-3.11(b), which apply to adult parole hearings, in reaching its determination. Johnson's citations to the statute and regulations governing parole revocation hearings are inapposite.
Claims that the Board "considered the wrong factors" or "failed to consider material facts" are also unavailing. The Board considered that after being paroled in 2001, Johnson led a crime-free life, married and became gainfully employed. However, the Board considered that Johnson minimized his parole violation -- moving to another state without approval -- and his criminality regarding one of the underlying rapes. The panel considered the psychological evaluation that determined Johnson scored at the "high" "risk level" on one of the exams, and that he posed a "moderate" risk for recidivism overall.
Johnson's claims that the Board "members demonstrated bias and prejudice" or "violated the professional code of conduct" are simply unsupported by any evidence in the record.
Lastly, Johnson claims the Board's decision regarding the thirty-six month FET was "based on the wrong guidelines." However, the Board fully complied with N.J.A.C. 10A:71-3.21, which applies "[u]pon determining to deny parole to a prison inmate." N.J.A.C. 10A:71-3.21(a). An inmate serving a sentence for, among other crimes, kidnapping, "shall serve 27 additional months." N.J.A.C. 10A:71-3.21(a)(1). The FET "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." N.J.A.C. 10A:71-3.21(c). Applying our limited standard of review, we find no basis to disturb the Board's determination.