On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 He was first paroled in 1994, but his parole was revoked on March 16, 1999.*fn1 Johnson was again paroled in 2001 and a maximum expiration date of November 1, 2015 was set.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 Johnson waived his right to a final revocation hearing, his parole was revoked again, and he was returned to custody.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 ...