June 26, 2013
EARL C. AMIN, Appellant,
NEW JERSEY STATE PAROLE BOARD, Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 16, 2013
On appeal from the New Jersey State Parole Board.
Earl C. Amin, appellant pro se.
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).
Before Judges Harris and Hoffman.
Appellant Earl C. Amin appeals from the decision of defendant New Jersey State Parole Board (Board) denying parole and imposing a thirty-two-month future eligibility term (FET). We affirm.
On January 27, 1982, Amin, who was on parole for a 1974 armed robbery conviction, robbed a bank in Vineland with a co-defendant, Joel Harrison. During the robbery, Harrison pointed a sawed-off shotgun at bank employees while Amin emptied the bank tellers' cash drawers and safes, stealing a total of $34, 664. Soon thereafter, police observed Amin and Harrison driving in a vehicle. A chase ensued, which ended when Amin and Harrison rammed their car into a police car and two parked cars. Amin was transported to the hospital for treatment of injuries he sustained from the car crash. While at the hospital, Amin attempted to escape, and in so doing attempted to disarm the sheriff's officer who was guarding him in his room.
Following a jury trial, Amin was convicted of robbery, unlawful possession of a weapon, possession of a weapon for an unlawful purpose, possession of a prohibited weapon, aggravated assault (two counts), conspiracy, criminal attempt to escape and a parole violation. On December 13, 1982, he was sentenced as follows: on the robbery charge, to an extended term of life imprisonment, with a twenty-five year period of parole ineligibility; on the criminal attempt to escape, to seven years, with a three-year period of parole ineligibility, consecutive to the life sentence; and on the remaining counts, to various concurrent terms. Thus, Amin's aggregate sentence is life imprisonment, with a twenty-eight year period of parole ineligibility, consecutive to any violation of parole.
Amin's prior criminal history consists of two robbery convictions as well as convictions of aiding and abetting an armed robbery, obtaining money under false pretenses and escape. Amin's past experiences on parole proved unsuccessful. As an adult, Amin has been paroled twice, and both times violated parole as a result of new convictions.
During his current incarceration, Amin has incurred a total of twenty disciplinary infractions, including six asterisk offenses; however, his most recent institutional infraction occurred in October of 2003. As a result of these infractions, Amin lost approximately 1, 230 commutation credits, but approximately 620 credits were subsequently restored.
Amin became eligible for parole for the first time on November 23, 2011. On July 18, 2011, a two-member Board panel denied parole and established a thirty-two-month future eligibility term (FET) based on, among other things: prior criminal record is extensive and repetitive; nature of criminal record is increasingly more serious; presently incarcerated for a multi-crime conviction; current opportunity on parole was revoked for commission of a new offense; prior opportunities on parole have been violated in the past; prior opportunities on parole and prior incarcerations(s) have failed to deter criminal behavior; commission of institutional disciplinary infractions which are numerous, serious in nature and have resulted in loss of commutation time and confinement in Detention and Administrative Segregation; insufficient problem resolution, including a failure to sufficiently address a substance abuse problem as demonstrated by the panel interview and documentation in the case file; lack of an adequate parole plan to assist in successful reintegration into the community; and the fact that Amin went AWOL from the United States Army. Regarding mitigating factors, the Board noted that Amin has participated in institutional programs, has average to above average institutional reports, has made attempts to enroll and participate in programs but was not admitted, has had a favorable institutional adjustment, with his last disciplinary infraction occurring in October 2003, and has had commutation time restored.
On August 10, 2011, Amin appealed the two-member panel's decision to the full Board. On November 30, 2011 the full Board affirmed the denial of parole and the imposition of a thirty-two-month FET. This appeal followed.
On appeal, Amin raises the following argument for our consideration:
The New Jersey State Parole Board has ignored and undervalued substantial evidence in denying parole.
Our scope of review is a narrow one, and we review Amin's contentions in accordance with that standard. We must affirm unless the Board's decision was unreasonable, unsupported by credible evidence in the record or contrary to law. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 172 (2001). In conducting this limited review, we must 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). Moreover, because the Board's decisions are to be considered highly "individualized discretionary appraisals, " the Board is vested with "broad but not unlimited discretionary powers" in reviewing an inmate's parole record and rendering a release decision. Trantino, supra, 166 N.J. at 173 (internal quotation marks and citations omitted).
In his brief, Amin argues that the Board overlooked mitigating evidence, including his prison program participation, and the fact that he has not received a disciplinary infraction in almost ten years. With respect to Amin's disciplinary record, the Board considered his favorable institutional adjustment as a mitigating factor, noting his last disciplinary infraction occurred in October 2003. Regarding Amin's rehabilitation efforts, the Board specifically noted that Amin has "completed almost 100 programs." However, in rendering a decision in Amin's case, the Board considered the aggregate of factors and determined that the aggravating factors outweighed the mitigating factors and that he was not a suitable candidate for parole at this time. The Board expressed understandable concern with Amin's failure to sufficiently address a severe and long-standing substance abuse problem. Amin admitted to using drugs from at least 1974 to 2001, but did not begin to receive counseling until 2009.
Regarding the imposition of the FET, pursuant to N.J.A.C. 10A:71-3.21(a)(1), when a panel denies parole to an inmate serving a sentence in excess of fourteen years, the standard FET is twenty-seven-months. However, pursuant to N.J.A.C. 10A:71-3.21(c), the standard FET "may be increased or decreased by up to nine months when, in the opinion of the Board panel, the severity of the crime for which the inmate was denied parole and the prior criminal record or other characteristics of the inmate warrant such adjustment." Here, the panel increased the standard FET by five months. In so doing, the panel considered the severity of the crime, Amin's extensive and repetitive criminal history his past failures to successfully complete parole and his insufficient problem resolution whereby he has failed to sufficiently address a substance abuse problem The Board suggested that Amin participate in substance abuse counseling and one-to-one counseling prior to his next hearing
Applying our deferential standard of review we find no basis in the record to disturb the Board's decision in this case We are satisfied that the Board considered all the relevant material facts and had sufficient credible evidence before it to deny the parole request and extend the FET beyond the presumptive term Moreover the Board applied the correct legal standard in making its ultimate determination that the evidence gave rise to a reasonable expectation that Amin would violate his parole if released at that time NJSA 30:4-12353(a) Accordingly we find that the Board's decision was not arbitrary capricious or unreasonable on the record presented