August 8, 2012
STEVEN KETCH, PETITIONER-APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT-RESPONDENT.
On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 3, 2012
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, the Board fully considered these factors, as did the two- and three-member panels.
Ketch also argues the factors relied upon by the Board to deny him parole were not supported by the evidence. However, during his two-member panel interview, Ketch "did not want to discuss [the] crime or his behavior," said "he was focusing on [the] future," believed "he [wa]s no longer an alcoholic [and] that he will refrain from [the] use of alcohol simply because he wants to." The panel noted that Ketch's "future plans [we]re very general [and he] does not demonstrate credible remorse."
The three-member panel noted that Ketch displayed "complete apathy, dismissiveness and [a] total lack of introspection [that] would place public safety in grave jeopardy" if he were released. It further noted that Ketch believed his admitted alcoholism was "not even an issue" at the present time, signaling he had learned little despite completing his various counseling sessions. In short, we cannot conclude the Board abused its broad discretion in reaching the conclusion that there was a substantial likelihood that Ketch would commit another crime if released on parole.
Pursuant to N.J.A.C. 10A:71-3.21(a)(1), an FET of twenty-seven months shall be set when an inmate is serving a sentence for manslaughter. The FET may be extended by nine months when "the prior criminal record or other characteristics of the inmate warrant such adjustment." N.J.A.C. 10A:71-3.21(c).
The Board issued its decision fixing the FET at forty-eight months on January 26, 2011. At the time, N.J.S.A. 30:4-123.56(a) established a thirty-six-month maximum for any FET. See L. 2009, c. 330, § 6 ("in no case shall any parole eligibility date . . . be more than three years following the date on which an inmate was denied release").*fn3 The Board sought remand to modify the forty-eight month FET it originally imposed. On remand, the Board entered a thirty-six month FET that is wholly-consistent with the regulations and the law that then existed. Applying our limited standard of review, we find no basis to disturb the Board's determination.