On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Messano.
Steven Ketch appeals from the final decision of the Parole Board (the Board) that affirmed the two-member panel's decision denying parole and the three-member panel's decision establishing a forty-eight month future parole eligibility term (FET). After Ketch filed his appeal, we granted the Board's motion to remand the matter for reconsideration of the FET. The Board thereafter reconsidered and modified its decision, reducing the FET from forty-eight to thirty-six months.
The record reveals that in 1996, Ketch pled guilty to first-degree aggravated manslaughter in the 1992 death of W.S. He was sentenced to a thirty-year term of imprisonment with a ten-year period of parole ineligibility. Ketch was denied parole at his first hearing in 2006, and the Board issued a seventy-two month FET.
When Ketch became eligible for parole again in 2009, the hearing officer referred the matter to a Board panel pursuant to N.J.A.C. 10A:71-3.15(b).*fn1 The two-member panel denied Ketch parole after determining "a substantial likelihood exist[ed] that [Ketch] would commit a new crime if released on parole at this time." The panel noted as mitigating factors that Ketch had no prior criminal record, remained "infraction free" since 2003, participated in institutional programs, including those "specific to [his] behavior," and had "achieved/retained" minimal custody status. The panel's reasons for denying parole included recognition of Ketch's one institutional infraction in 2003, and "[i]nsufficient problem(s) resolution." Specifically, the panel determined that Ketch lacked insight into his behavior, minimized his conduct, had not sufficiently addressed his substance abuse problems, and "did not want to discuss the crime or his behavior."
The three-member panel considered the matter and set a forty-eight month FET. It cited the same reasons for its decision. Ketch appealed to the full Board. In its written decision, the Board addressed each of the specific points Ketch raised in his administrative appeal.
Before us, Ketch argues that the Board's decision was arbitrary and capricious and should be reversed.*fn2 We have considered the argument 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 I) (citation omitted). Despite the Board's broad discretion, we review the decision as we do those 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 II). 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 I, supra, 154 N.J. at 24.]
"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). Therefore, we 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).
"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." N.J.A.C. 10A:71-3.10(a). N.J.A.C. 10A:71-3.11(b) contains a non-exhaustive list of factors to be considered, including: the inmate's disciplinary infractions, the facts and circumstances of the offense, the inmate's participation in institutional programs and "[s]tatements by the inmate reflecting on the likelihood that he or she will commit another crime . . . ." "[T]he Board [must] focus its attention squarely on the likelihood of recidivism. That focus applies to the FET determination as well." McGowan, supra, 347 N.J. Super. at 565.
Ketch argues the Board "chose not to consider" various factors including his youthful age when the crime was committed, his lack of a prior criminal record and his conduct while in custody. He notes that he has completed numerous "self [-]improvement classes" and received a "para[-]professional certification." However, ...