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John Mcgill v. New Jersey State Parole Board

December 2, 2011

JOHN MCGILL, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 October 31, 2011

Before Judges Parrillo and Grall.

Appellant John McGill appeals from a July 28, 2010 decision of respondent, New Jersey State Parole Board (Parole Board or Board), denying him parole and establishing a 120-month Future Eligibility Term (FET). We affirm.

The relevant facts are as follows. Appellant is currently serving a term of life imprisonment with a mandatory minimum of twenty-five years imposed on his September 27, 1983 conviction for first-degree murder. That sentence was made to run consecutive to an aggregate six-and-one-half year term imposed on unrelated convictions for theft, forgery and uttering a forged check. These crimes represented a continuation of an escalating pattern of criminal activity, including drug offenses, breaking and entering, receiving stolen property and armed robbery, preceded by an extensive juvenile history. In fact, at the time of the present offenses, defendant was on parole for the armed robbery conviction and self-described his life on parole as "hustling" and "selling drugs."

Since he was sentenced on the murder offense on November 10, 1983, appellant has been found guilty of committing at least nineteen institutional disciplinary infractions, including nine asterisk offenses. His most recent infraction occurred on March 10, 2008.

Appellant first became eligible for parole on January 26, 2009. On October 31, 2008, a hearing officer referred the matter for a hearing before a Board Panel due to the serious nature of the offense, i.e., murder, pursuant to the mandate of N.J.A.C. 10A:71-3.15(b).*fn1 On December 4, 2008, a two-member Board Panel, after a hearing which included an interview with appellant and a review of his parole file, denied parole and referred the matter to a three-member Panel for the establishment of a FET outside of the administrative guidelines.

The Panel's decision was based on a number of factors, including appellant's present incarceration for a multi-crime conviction; his criminal record, which is extensive and repetitive; the failure of prior probation and parole opportunities and incarceration to deter his criminal behavior; commission of institutional disciplinary infractions, which are numerous, persistent and serious in nature; insufficient problem resolution, specifically, a lack of insight into criminal behavior and minimization of conduct; lack of an adequate parole plan to assist in successful reintegration into the community; and a risk assessment evaluation indicating that appellant was a "medium" risk to recidivate. In mitigation, the Panel did consider that appellant had participated in institutional programs specific to behavior, had average to above-average institutional reports, had made attempts to enroll and participate in programs but was not admitted, and had lost commutation time restored.

On April 15, 2009, a three-member Panel established a 120-month FET in a detailed thirteen-page written decision. In doing so, the Panel cited the same factors relied upon by the two-member Panel in denying appellant parole. Specifically, the three-member Panel noted that after nearly twenty-seven years of incarceration, appellant remains unable to identify the causes of his violent behavior; persists in minimizing his criminal conduct; completely lacks empathy or remorse for the victim; and continues his anti-social and maladaptive behavior during incarceration. As to appellant's lack of insight, the Board concluded:

[w]hat was not recognized or acknowledged by you during your Board panel hearing was the fact that beyond financial reasons affecting you as you claim, why specifically did it affect you to return to criminal behavior, ultimately resulting in the victim's death. The Panel notes that societal and familial issues affect individuals on a daily basis, but the stressors you claim fell upon you, impelled you to elevate your criminality and commit the most severest of crimes, first degree Murder. This aspect to your perceived realization has not yet been explored by you. Beyond recognizing a specific traumatic event that possibly led to the underlying motivations to your violent criminal behavior, the Board panel believes that you must come to understand why you reacted and behaved in the crime specific manner that you did.

The Board also found appellant's parole plan, which merely requested a "placement[,]," and indicated he would seek employment when released, to be inadequate.

Appellant administratively appealed both panel decisions to the full Board. On July 28, 2010, the full Board affirmed the Panels' decisions to ...


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