May 31, 2013
RUBEN CALES, Appellant,
NEW JERSEY STATE PAROLE BOARD, Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 22, 2013
On appeal from the New Jersey State Parole Board.
Ruben Cales, appellant pro se.
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Shirley P. Dickstein, Deputy Attorney General, on the brief).
Before Judges Sabatino and Maven.
Appellant Ruben Cales appeals the Parole Board's final agency decision dated January 25, 2012, denying him parole and establishing a future eligibility term ("FET") of ninety-six months. We affirm.
In 1998, appellant was convicted for aggravated manslaughter and first-degree armed robbery. The court sentenced appellant to an aggregate term of forty years of imprisonment, with a fifteen-year period of parole ineligibility.
On August 5, 2011, at the initial parole hearing, upon reviewing appellant's parole status, the two-member panel cited appellant's numerous disciplinary infractions, as well as his minimization of his behavior and lack of remorse for the victim, as the reasons for recommending the denial of parole. They also indicated that there was a substantial likelihood that appellant would commit a new crime if he were released at this time. This panel referred appellant's case for a hearing before the three-member review panel of the Board and recommended the imposition of an FET beyond the twenty-seven-month term specified for manslaughter convictions under the administrative guidelines. See N.J.A.C. 10A:71-3.21.
On October 5, 2011, in denying parole, the three-member panel considered the recommendation and additionally noted that appellant had incurred at least seven non-asterisk (less serious) infractions and one asterisk (more serious) infraction, resulting in multiple placements in detention and at least 210 days loss of commutation credits. The Panel was specifically concerned with a 2004 infraction for possession of a razor blade. They noted that appellant's explanation of the incident and insistence that "it wasn't a weapon" was "illustrative of someone who continually attempts to deflect responsibility for [his] actions." The Panel found that this further evidenced "[appellant's] need to minimize [his] anti-social and criminal conduct."
The Panel assessed several mitigating factors, including appellant's participation in multiple prison programs; lack of prior criminal convictions; above-average work and housing reports; and his letters to the Panel and the victim's family expressing remorse and contrition. See N.J.A.C. 10A:71-3.11(b). Nonetheless, in light of these and other considerations, the Panel concluded that appellant continued "to remain a substantial threat to public safety." The Panel established an FET of ninety-six months, stating that any [lesser] term . . . would be wholly inconsistent with the conclusion that, after fourteen . . . years of incarceration, [appellant] ha[s] not shown the requisite amount of rehabilitative progress in reducing the likelihood of future criminal activity." See N.J.A.C. 10A:71-3.21(d) (authorizing an extended FET beyond the twenty-seven-month baseline FET).
Appellant administratively appealed that decision, and on January 25, 2012, the full Board sustained both the denial of parole and the ninety-six-month FET. This appeal followed.
Appellant contends that the Board's decision denying parole and establishing a ninety-six-month FET was arbitrary and capricious and not supported by substantial credible evidence. Further, he argues that the length of the FET is capricious given that he has completed all of the prison programs available to him, and as such, there are no additional rehabilitative programs to which he can avail himself that would satisfy the Board's recommendations for self-improvement. We are not persuaded by these contentions.
Our scope of review is very limited. Administrative decisions of the Board are "grounded in strong public policy concerns and practical realities." Trantino v. N.J. State Parole Bd., 166 N.J. 113, 200 (2001) (Trantino V). "The decision of a parole board involves 'discretionary assessment[s] of a multiplicity of imponderables.'" Id. at 201 (alteration in original) (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. (citation omitted). Hence, appellate courts "may overturn the Parole Board's decision only if they are arbitrary and capricious." Ibid. As to the Board's factual findings, we do not disturb them 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., 154 N.J. 19, 24 (1998) (Trantino IV)); see also McGowan v. N.J. State Parole Bd., 347 N.J.Super. 544, 563 (App. Div. 2002) (noting that "[a]dministrative actions, such as parole decisions, must be upheld where the findings could reasonably have been reached on the credible evidence in the record"). We will not second-guess the Parole Board's application of its considerable expertise in sustaining the hearing officer's determination. See, e.g., In re Vey, 272 N.J.Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994).
Evaluated by these well-established review standards, we are satisfied that the Board's decision in this case is amply supported by substantial credible evidence, and that the Board's imposition of a ninety-six-month FET is neither arbitrary nor capricious. The balance of defendant's arguments, including his claims that the extended FET is punitive, lack sufficient merit to discuss in this opinion. R. 2:11-3(e)(1)(D) and (E). We add only the following brief comments.
Appellant relies on our unpublished opinion in Jeffrey Cameron v. N.J. State Parole Board, No. A-0349-09 (App. Div. Oct. 21, 2010), in support of his claim that the ninety-six-month FET was arbitrary and capricious. The reliance on Cameron is misplaced. Initially, we note that this is an unpublished opinion and, therefore, is not binding precedent. R. 1:36-3. Second, in Cameron, we affirmed the Board's denial of the appellant's parole, but reversed and remanded its imposition of a 120-month FET based on our reading of the 2009 legislative amendment to N.J.S.A. 30:4-123.56(a), which placed a three-year cap on FETs. L. 2003, c. 330, eff. Aug. 1, 2010. We determined that the Board abused its discretion by not setting out a basis grounded in the evidence for the grossly extended FET, as required by N.J.A.C. 10A:71-3.21. Cameron, supra, slip op. at 6-7. However, that 2009 legislation was amended to eliminate the thirty-six-month maximum FET prior to appellant's hearings. L. 2011, c. 67, eff. May 9, 2011. Appellant's narrow argument on appeal is that the Board should be limited to the statutory twenty-seven-month FET for manslaughter convictions. The current legislation, however, permits the three-member panel to establish a FET beyond twenty-seven months "if the future parole eligibility date which would be established . . . is clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior" NJAC 10A:71-321(d)
In establishing the FET the three-member panel appropriately considered the factors enumerated in NJAC 10A:71-311 including appellant's record the confidential appendix and any pertinent aggravating and mitigating factors There was sufficient credible evidence in the record for the Panel to determine that appellant lacked satisfactory progress in reducing the likelihood of future criminal behavior and to impose the extended FET We conclude that the Board's decision did not violate legislative policy or constitute an abuse of discretion