NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 20, 2011
Before Judges Reisner and Simonelli.
Appellant Herold St. Pierre appeals from the decision of defendant New Jersey State Parole Board (Board) denying parole and imposing a 120-month future eligibility term (FET). We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
The record reveals that following a jury trial, St. Pierre was convicted of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a; second-degree manslaughter, N.J.S.A. 2C:11-4a(1); second-degree vehicular homicide, N.J.S.A. 2C:11-5; second-degree eluding, N.J.S.A. 2C:29-2b; five counts of second-degree aggravated assault, N.J.S.A. 2C:12-1b(6); and simple assault, a disorderly persons offense, N.J.S.A. 2C:12-1a. On August 17, 1998, he was sentenced to a term of thirty-eight years with thirteen years of parole ineligibility. On August 24, 1998, he pled guilty to third-degree theft of a motor vehicle, N.J.S.A. 2C:20-3. He received a four-year consecutive sentence.
St. Pierre became eligible for parole for the first time on July 17, 2009. On May 11, 2009, a two-member Board panel denied parole based on, among other things: prior criminal record is extensive and repetitive; nature of criminal record is increasingly more serious; presently incarcerated for a multi-crime conviction; prior opportunities on probation have failed to deter criminal behavior; prior incarceration did not deter criminal behavior; commission of institutional disciplinary infractions, which are serious in nature, and have resulted in loss of commutation time and confinement in detention/ administrative segregation; insufficient problem resolution, specifically, a lack of insight into criminal behavior and minimization of conduct, as demonstrated by the panel's interview, and commission of a crime while on bail. The panel also considered mitigating factors, such as appellant's participation in institutional programs, his average to above-average institutional reports, his attempts to enroll and participate in programs, and the restoration of his commutation time.
A two-member Board panel establishes a FET upon denying parole to an inmate. N.J.A.C. 10A:71-3.21(a). For an inmate who is serving a sentence for manslaughter, such as St. Pierre, the FET shall be twenty-seven months. N.J.A.C. 10A:71-3.21(a)1. If the two-member Board panel finds the twenty-seven-month FET to be inappropriate, it must refer the case to a three-member Board panel. N.J.A.C. 10A:71-3.21(d)1. The three-member Board panel may establish a FET beyond 27 months if the twenty-seven-month term is "clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior." N.J.A.C. 10A:71-3.2(d). In so doing, the three-member Board panel shall consider the factors enumerated in N.J.A.C. 10A:71-3.11.
The two-member Board panel referred St. Pierre's case to a three-member Board panel pursuant to N.J.A.C. 10A:71-3.21(d) to establish a FET beyond twenty-seven months. On December 9, 2009, a three-member Board panel considered the case and established a 120-month FET pursuant to the provisions of N.J.S.A. 30:4-123.56 in effect at that time, which permitted a FET in excess of three years. The three-member Board panel relied on the same factors on which the two-member Board panel had relied, and further noted that, during his thirteen-year incarceration, St. Pierre had been unable to identify the causes of his criminal behavior, failed to develop adequate and appropriate insight into recognizing issues that would return him to future criminal behavior, was unable to demonstrate empathy for his victims, and continued to minimize his criminal behavior. The three-member Board panel also considered the same mitigating factors the two-member Board panel considered, and St. Pierre's letter of mitigation.
On January 18, 2010, N.J.S.A. 30:4-123.56a and b were amended, effective August 1, 2010. The amendments precluded the imposition of a FET "more than three years following the date on which an inmate was denied release."*fn1 On June 5, 2010, St. Pierre administratively appealed to the Board.*fn2 On August 25, 2010, the Board affirmed the three-member Board panel's decision to deny parole and establish a 120-month FET. This appeal followed.
On appeal, St. Pierre raises the following arguments for our consideration:
The Decision of the New Jersey State Parole Board to Deny Parole and Impose a Future Eligibility Term of 120 Months Must be Reversed Because it is Arbitrary and not Supported by the Evidence Contained in the Record.
The Parole Board Imposition of a 120 Month FET Must be Vacated Because it is ...