KEVIN STOUT v. NEW JERSEY STATE PAROLE BOARD

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0T4

KEVIN STOUT,

Appellant,

v.

NEW JERSEY STATE PAROLE

BOARD,

Respondent.

________________________________

January 7, 2014

 

Submitted December 2, 2013 Decided

 

Before Judges Kennedy and Guadagno.

 

On appeal from New Jersey State Parole Board.

 

Kevin Stout, appellant pro se.

 

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Kevin Stout appeals from the June 20, 2012 final decision of the New Jersey State Parole Board (Board) denying his application for parole and establishing a 180-month future eligibility term (FET). We reverse the FET and remand to the Board with instructions to comply with our prior opinion in this matter, Kevin Stout v. N. J. State Parole Board, A-5064-09 (App. Div. June 7, 2011).

We will not reiterate in detail the substance of our prior opinion, except to note the following. Stout was convicted of murder and is serving a sentence imposed in 1982 of life imprisonment with a minimum term of twenty-five years. His criminal history prior to 1982 was extensive, and in 1997, while incarcerated, he pled guilty of possession of a controlled dangerous substance and received a concurrent five-year term of incarceration. We acknowledged that his behavior while incarcerated was "far from exemplary" and that he last incurred an institutional infraction in 2000. Id. slip op. at 2-3.

Stout's first parole eligibility date was January 2009. A two-member Board panel denied parole and a three-member panel established a FET of 180 months. Stout's administrative appeal to the full Board resulted in its determination to deny parole and impose the 180-month FET.

On appeal, we concluded that "the Board correctly determined that parole should be denied due to the 'substantial likelihood that [Stout] will commit a crime if released on parole at this time' N.J.S.A. 30:4-123.53(a) (pre-1997 version)." Id. slip op. at 8. However, we concluded otherwise with respect to the FET and, after noting that the Board adopted a FET that exceeded the presumptive FET of twenty-seven months, N.J.A.C. 10A:71-3.21(a)(1), by more than twelve years, we held that the 180-month FET was "manifestly excessive, even in light of the confidential materials that were available to the three-member panel and Board, and which we have reviewed." Id. slip op. at 10. We added that a "long duration FET, such as established in Stout's case, was not appropriate under any circumstances" and we remanded to the Board to impose an "appropriate term in conformity with the law." Id. slip op. at 10-11.

After the remand, the three-member Board panel issued its "Notice of Decision" re-imposing the 180-month FET, employing precisely the same factors it employed in 2008. On June 20, 2012, the full Board issued its notice of final agency decision, finding that "the three-member Board panel has considered and based its determination on the aggregate of all factors pursuant to N.J.A.C. 10A:71-3.11" and affirmed the Board panel.

This appeal followed.

Judicial review of parole determinations is limited to an evaluation of whether the Parole Board acted arbitrarily or abused its discretion in rendering its decisions. In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994). The actions of the Board, as an administrative agency, are presumed valid and reasonable. Alevras v. Delanoy, 245 N.J. Super. 32, 35 (App. Div. 1990), certif. denied, 126 N.J. 330 (1991). Our review is also limited to a determination of whether the agency's findings could reasonably have been reached on the credible evidence in the record. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965); N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988). We will set aside an agency decision only "'if there exists in the reviewing mind a definite conviction that the determination below went so far wide of the mark that a mistake must have been made.'" Cestari, supra, 224 N.J. Super. at 547 (quoting 613 Corp. v. N.J., Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)).

The Board's decisions are considered "highly 'individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (Trantino VI) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). Consequently, "the Board 'has broad but not unlimited discretionary powers'" in reviewing an inmate's parole record and rendering a release decision. Ibid. (quoting Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971)); see also Greenholtz v. Nebraska Penal & Corr. Complex Inmates, 442 U.S. 1, 9-10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979) ("The parole-release decision . . . depends on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals by the Board members based upon their experience with the difficult and sensitive task of evaluating the advisability of parole release.").

The Parole Act, as amended in 1979, provides that

[a]n adult inmate shall be released on parole at the time of parole eligibility, unless [the] information supplied [to the Parole Board] or developed or produced at a hearing . . . indicates by a preponderance of the evidence that there is a substantial likelihood that the inmate will commit a crime under the laws of this State if released on parole at such time.

 

[N.J.S.A. 30:4-123.53(a).]

 

As we noted earlier, N.J.A.C. 10A:71-3.21(a)(1) establishes a presumptive FET for murder of twenty-seven months. N.J.A.C. 10A:71-3.21(d), in turn, provides:

A three-member Board panel may establish a future parole eligibility date which differs from that required by the provisions of (a) or (b) and (c) above if the future parole eligibility date which would be established pursuant to such subsections is clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior. In making the determination that the establishment of a future parole eligibility date pursuant to (a) or (b) and (c) above is clearly inappropriate, the three-member panel shall consider the factors enumerated in N.J.A.C. 10A:71-3.11.

 

N.J.A.C. 10A:71-3.11 sets forth a list of factors that guide the Board in making such determinations. McGowan, supra, 347 N.J. Super. at 564. While, as noted, the Board's discretionary power in rendering a release decision is broad, it is not unlimited. Monks, supra, 58 N.J. at 242.

While we acknowledge that our standard of review, as set forth above, is deferential, given our prior decision, we cannot affirm the Board's imposition of the same FET. We noted the Board's determination on the first appeal warranted "serious" consideration, but we also noted that the presumptive FET for murder under N.J.A.C. 10A:71-3.21(a)(1) was twenty-seven months, and we explicitly held that Stout's FET of 180 months "was not appropriate under any circumstances." The Board was not free, therefore, to simply reinstate its prior decision.

In Kosmin v. State Parole Bd., 363 N.J. Super. 28, 40 (App. Div. 2003), we observed:

Before considering the merits of this appeal, we are constrained to address the procedure of the Parole Board in response to our order of November 21, 2002, directing the filing with the court of a statement of reasons. As noted, the Parole Board opted to ignore that directive, to vacate its decision and to hold a new hearing. We simply point out that the Parole Board is a state administrative agency whose actions are reviewable by this court. R. 2:2-3(a)(2). Like the trial courts, state administrative agencies are free to disagree with our decisions. They are not, however, free to disregard them.

 

Also,

where, as here, the power of the agency (the Board) to act and the extent of that power are prescribed and delineated by a prior judicial opinion in the matter and the court's mandate on remand, the appellate judgment becomes the law of the case and the agency is under a peremptory duty not to depart from it. In re Plainfield-Union Water Co., 14 N.J. 296, 302-303 (1954); cf. Flanigan v. McFeely, 20 N.J. 414, 420-421 (1956); Reinauer Realty Corp. v. Borough of Paramus, 34 N.J. 406 (1961).

 

[Lowenstein v. Newark Bd. of Education, 35 N.J. 94, 116-117 (1961).]

 

These principles apply here. The Board cannot ignore our prior opinion stating flatly that 180 months is excessive. We choose at this time not to exercise our original jurisdiction under Rule 2:10-5, but rather we again remand this matter to the Board. We are confident that this gesture of respect will be met by an appropriate exercise of the Board's discretionary duty.

The final action of the Board denying parole is affirmed. The FET imposed by the Board is reversed and the matter is remanded to the Board for a determination as to an appropriate FET. The Board shall render a decision within 45 days.

Reversed and remanded in part. We do not retain jurisdiction.