October 16, 2012
BARRICK WESLEY, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 2, 2012
Before Judges Waugh and St. John.
Appellant Barrick Wesley appeals the final administrative action of the New Jersey Parole Board (Parole Board), denying parole and setting a sixty-month future eligibility term (FET). We affirm.
We discern the following facts and procedural history from the record on appeal.
Wesley is serving*fn1 an aggregate term of twenty years following his plea of guilty to three counts of third-degree theft by unlawful taking, contrary to N.J.S.A. 2C:20-3(a). The sentence, which was imposed in July 2007, is not subject to any period of parole disqualification.
Wesley became eligible for parole in August 2010. After one of the Parole Board's hearing officers referred the matter to a two-member panel of the Board, the panel considered his case in May 2010, denied parole, and referred the matter to a three-member panel to establish an FET in excess of the one called for by the Board's administrative guidelines. The panel based its determination on its finding that there was "a reasonable expectation" that Wesley would re-offend if released on parole, citing in particular his prior history of re-offense.
In July 2010, the three-member panel, which included the two members of the first panel, reviewed Wesley's record, his letter of mitigation, and a letter from an assistant prosecutor from Passaic County urging favorable consideration of his application. The panel set an FET of sixty months, explaining its reasons in an eleven-page decision. After setting out Wesley's prior history of offenses, conduct after parole, and conduct while incarcerated, the panel concluded:
Based upon a comprehensive review of your entire record, it is clear that you continue to remain a substantial threat to public safety. The focus of the three-member Board panel's review of your case is to determine the future parole eligibility term that would reasonably be required of an individual with your behavioral history.
The three-member Board panel believes that during your five (5) years of incarceration you have:
* been unable to identify the causes of your criminal behavior, therefore failing to develop adequate insight into your violent criminal personality characteristic; and
* failed to appropriately and adequately address the causes of your criminal behavior through specific program participation or by other methods, which would demonstrate satisfactory evidence of rehabilitative progress. Specifically, it is clear that the narcotic program participation that you have thus far attended has given you no insight into your addiction, your stressors and/or the enabling factors that have contributed to your relapses and resulting violent criminal behavior; and
* failed to develop adequate and appropriate insight in recognizing issues that would return you to future criminal behavior. The three-member Board panel believes that although you now claim to recognize that your abuse of narcotics affected you at a young age, you have not yet explored why your life experiences affected you to specifically lead a life marked with crime and violence. You continued such anti-social actions unabated even with the experiences of juvenile probation, adult probation, adult parole and several incarcerations.
Accordingly, the three-member Board panel has found that setting any term less than a sixty (60) month future parole eligibility term would be wholly inconsistent with the conclusion that, after five (5) years of incarceration, you have not shown the requisite amount of rehabilitative progress in reducing the likelihood of future criminal activity.
Wesley appealed to the full Parole Board, which affirmed.
After Wesley filed his notice of appeal, the Parole Board sought a remand of this matter, as well as other pending appeals, for reconsideration of the FET. We granted the application, but retained jurisdiction. The remand proceeding resulted in a new FET of thirty-six months. Consequently, we review only the denial of parole.
On appeal, Wesley argues that the Parole Board's decision to deny parole was arbitrary and capricious.
Our standard of review of administrative decisions of the Parole Board is limited, and it is "grounded in strong public policy concerns and practical realities." Trantino v. N.J. State Parole Bd. (Trantino V), 166 N.J. 113, 200 (2001). "The decision of a parole board involves 'discretionary assessment[s] of a multiplicity of imponderables . . . .'" Id. at 201 (quoting Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979)). "To a greater degree than is the case with other administrative agencies, the Parole Board's decision-making function involves individualized discretionary appraisals." Ibid. (citing Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 358-59, certif. denied, 63 N.J. 583 (1973)). Consequently, we may reverse the Parole Board's decision only if it is "arbitrary and capricious." Ibid. We do not disturb the Board's factual findings if they "could reasonably have been reached on sufficient credible evidence in the whole record." Id. at 172 (quoting Trantino v. N.J. State Parole Bd. (Trantino IV), 154 N.J. 19, 24 (1998)).
Having reviewed Wesley's arguments, the record on appeal, and the applicable law, we find no basis to reverse the Parole Board's decision denying parole. An extensive discussion is not required. R. 2:11-3(e)(1)(D), -3(e)(2). We add only the following.
The Parole Board's decision to deny parole was not arbitrary and capricious and was supported by sufficient credible evidence, including the facts that Wesley is serving consecutive sentences for several crimes, has a significant prior criminal history, has not done well on parole in the past, has committed institutional violations, has exhibited insufficient problem resolution, and lacks insight into his criminal behavior. See N.J.A.C. 10A:71-3.11. We note, for example, that Wesley re-offended approximately one year after his most recent release from prison, which took place after he had completed his entire sentence.
We are cognizant of Wesley's argument, supported by the assistant prosecutor, that his delay in participating in drug abuse programs was caused by his cooperation with the State in other criminal matters, which necessitated his placement in protective isolation. Our review of the entire record and the Board's decision satisfies us that there were sufficient grounds to deny parole without regard to the issue of delayed participation in drug programs.