October 31, 2011
WAYNE PLANKER, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 October 3, 2011
Before Judges Parrillo and Skillman.
Inmate Wayne Planker appeals from an August 25, 2010 decision of respondent, New Jersey State Parole Board (Parole Board or Board), denying him parole and establishing a thirty-month Future Eligibility Term (FET). We affirm.
The relevant facts are as follows. Appellant is currently serving a forty-year sentence imposed on his October 30, 1991 convictions for five counts of aggravated sexual assault, one count of sexual assault, and one count of aggravated criminal sexual contact, committed from December 1981 to July 1984, and involving the two young daughters of his then live-in paramour. These crimes represented an escalation in the seriousness of appellant's criminal behavior, which previously involved mostly theft-related offenses dating back to 1976.
Sentenced on the instant offenses on January 17, 1992, appellant has been denied parole on six prior occasions and again became eligible for consideration in January 2010. At that time, the hearing officer referred the matter to a two-member Board Panel, pursuant to N.J.A.C. 10A:71-3.15(b), who then conducted a hearing, which included an interview with appellant and a review of his parole file. On February 5, 2010, the two-member Panel denied appellant parole and established a thirty-month FET.
The Panel's decision was based on a number of factors, including appellant's present incarceration for a multi-crime conviction; his criminal record and the escalating seriousness of his crime; the failure of prior probation and pre-trial intervention opportunities and incarceration to deter his criminal behavior; and insufficient problem resolution. As to the latter, the Panel cited appellant's lack of insight into his criminal behavior, noting "[appellant] is still seizing on new concepts to explain what happened. The seeming depth of behavior on the street (while in his thirties) and the antisocial pathology involved give greater weight to his unsuccessful search. More work needs to be done to place the prospect of crime beyond his narcisstic/antisocial bent."
In mitigation, the Panel did consider that appellant was infraction free, participated in institutional programs, including programs specific to behavior, and had average to above-average institutional reports. Nevertheless, considering all material facts, including the Panel interview and case file documentation, the Panel concluded that, on balance, appellant presented an unacceptable risk of committing future crimes if released and therefore denied parole.
Appellant administratively appealed the Panel's decision to the full Parole Board. In affirming the denial of parole and imposition of the thirty-month FET, the Board concluded that "there is a substantial likelihood that [appellant] would commit a crime if released on parole at this time."
On appeal, appellant argues that the Panel, and ultimately the Board, relied upon inaccurate information in denying him parole. Specifically, appellant contends that the Board erroneously claimed that he was removed from a halfway house; that his prior incarceration did not deter future criminal behavior; that a risk assessment evaluation found he was a "high" risk to recidivate; and that it did not consider a prosecutor's objection in denying him parole.
We have considered these contentions in light of the record and arguments of counsel and appellant pro se, and we are satisfied that none of them is of sufficient merit to warrant extended discussion in a written decision. R. 2:11-3(e)(1)(D) and (E). We add, however, only the following comments.
Preliminarily, we note that, because appellant committed the relevant offenses from 1981 to 1984, the governing standard is that stated in N.J.S.A. 30:4-123.53(a), before its amendment on August 19, 1997, L. 1997, c. 213, § 1., which provided that the inmate shall be released on parole unless, by a preponderance of the evidence . . . there is a substantial likelihood that the inmate will commit a crime under the law of this State if released on parole at such time. [N.J.S.A. 30:4-123.53(a).]
In this determination, the Parole Board must consider the aggregate of all pertinent factors, including those set forth in N.J.A.C. 10A:71-3.11(b). See Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 360 (1973) ("Common sense dictates that [the Board's] prediction as to future conduct . . . be grounded on due consideration of the aggregate of all of the factors which may have any pertinence.").
Because such determinations are "highly 'individualized discretionary appraisals,'" a decision of the Parole Board concerning an inmate's suitability for parole under the statutory standard should not be reversed by a court unless found to be arbitrary or an abuse of discretion. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998) (quoting Beckworth, supra, 62 N.J. at 359). We further recognize that the question whether a statutory standard has been met is essentially factual in nature, and that judicial review is limited to determining whether the Parole Board's "factual finding could reasonably have been reached on sufficient credible evidence in the whole record." Id. at 24 (quoting N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.) (holding that a parole decision is "essentially factual in nature" and extremely difficult; therefore, judicial review is limited to determining whether the Parole Board's "factual finding could reasonably have been reached on sufficient credible evidence in the whole record"), certif. denied, 111 N.J. 649 (1988)).
In addition, in reviewing the Parole Board's determination whether the standard for release has been met, we must give due regard to the ability of the factfinder to judge credibility, and, where an agency's expertise is a factor, to that expertise. State v. Locurto, 157 N.J. 463, 470-71 (1999). See, e.g., In re License of Polk, 90 N.J. 550, 578 (1982) (holding the court should not substitute its judgment for that of the agency).
This is especially so where, as here, the decision concerns a prediction as to an inmate's future behavior, a prediction fraught with subjectivity, mandating broad discretion in the Board's decision-making process. Puchalski v. N.J. State Parole Bd., 104 N.J. Super. 294, 300 (App. Div.), aff'd, 55 N.J. 113 (1969), cert. denied, 398 U.S. 938, 90 S. Ct. 1841, 26 L. Ed. 2d 270 (1970). Thus, the Parole Board's decision should only be set aside "'if there exists in the reviewing mind a definite conviction that the determination below went so far wide of the mark that a mistake must have been made.'" Cestari, supra, 224 N.J. Super. at 547 (quoting 613 Corp. v. State, Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)).
Here, the Parole Board's decision properly considered all relevant factors, correctly applied the governing standard, and is rationally supported by sufficient, credible facts in the record. The present offenses represent an escalation in the seriousness of appellant's previous criminal activity, for which neither prior probation, pre-trial intervention nor incarceration acted as a deterrent. Moreover, the Board appropriately determined, based upon the Panel's interview and documentation in the file, that appellant still lacked insight into his criminal behavior, finding that "more work needs to be done" to ensure against the prospect of repeated crime. While due regard was also given to mitigating factors, which the Panel enumerated in its decision, the balance weighed in favor of denying parole, a determination with which we find no fault.
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