LORENZO OLIVER v. NEW JERSEY STATE PAROLE BOARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0920-04T20920-04T2

LORENZO OLIVER,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

______________________________

 

Submitted: December 7, 2005 - Decided:

Before Judges Axelrad and Payne.

On appeal from a Final Decision of the New Jersey State Parole Board.

Lorenzo Oliver, appellant pro se.

Peter C. Harvey, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Walter C. Kowalski, Deputy Attorney General, on the brief).

PER CURIAM

Petitioner Lorenzo Oliver, a State prison inmate, appeals from the May 4, 2005 final decision of the New Jersey State Parole Board (Board) denying him parole and imposing an eighteen-month future eligibility term (FET). Petitioner argues the record does not support the Board's determination by a preponderance of the evidence that there is a substantial likelihood that he would commit a crime if released on parole, particularly in view of the extrinsic evidence that he was not arrested during the nineteen-month period he was out on bail prior to his second trial on the present charges. Petitioner also argues the Board's review of his record was selective and arbitrary. He further challenges the Board's retroactive application of N.J.S.A. 30:4-123.56c, and consideration of his entire parole record rather than just new information developed from his last parole hearing as violative of the ex post facto clause of the state and federal constitutions. We reject these arguments and affirm.

Petitioner was convicted by a jury on March 30, 1989 on two counts of sexual assault, one count of attempted sexual assault, one count of aggravated assault and two counts of criminal restraint, resulting from encounters with two female acquaintances on different dates in June l988. Petitioner was thirty-four years old at the time of these incidents. He was sentenced on August 23, 1989 to state prison and a subsequent commitment at the Adult Diagnostic and Treatment Center at Avenel (ADTC). We reversed his conviction, and the Supreme Court affirmed our reversal. State v. Oliver, 133 N.J. 141 (1993). Petitioner was returned to Essex County for retrial, and posted bond on July 23, 1993.

On retrial, petitioner was convicted on February 7, 1995 of two counts of sexual assault (vaginal and oral sex with two victims), one count of attempted sexual assault (incomplete vaginal sex leading to oral sex), two counts of criminal restraint and one count of the lesser-included offense of simple assault. He was sentenced on May l5, 1995 to a thirty-year custodial term with a twelve-year parole disqualifier. Petitioner received his first parole review in October 2002, and was denied parole and received a twenty-seven month FET. On March l, 2004, petitioner had a second hearing, and a two-member panel denied his request for parole and imposed a twenty-month FET. On July 30, 2004, the Parole Board vacated the decision. On August 30, 2004, following a hearing, the panel affirmed the denial of parole and recommended an eighteen-month FET, based on a finding of a reasonable expectation petitioner would violate the conditions of parole if released. The Board affirmed the panel's decision on November 17, 2004.

Following an appeal, we granted petitioner's motion for remand because the Board incorrectly used the post-l997 standard for parole consideration. We directed reconsideration by the Board under the prior statutory standard applicable to petitioner's l988 crimes, and retained jurisdiction. On April 13, 2005, the panel reconsidered petitioner's case and came to the same conclusion based on a finding by a preponderance of the evidence of a substantial likelihood petitioner would commit a crime if released on parole, pursuant to pre-amendment N.J.S.A. 30:4-123.53a. On May 4, 2005, the Board affirmed this decision, denied petitioner parole and established an eighteen-month FET, which is the subject of this appeal.

In reviewing the final decision of a state administrative agency, our function is to review the record and determine whether the agency's factual finding 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 (1998). 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. l986)).

Decisions of a Parole Board are 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. Trantino VI, supra, 166 N.J. at l73 (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.").

Thus, the decision of the Parole Board involves "a 'discretionary assessment of a multiplicity of imponderables, entailing primarily what a man is and what he may become rather than simply what he has done.'" Greenholtz, supra, 442 U.S. at 10, 99 S. Ct. at 2105, 60 L. Ed. 2d at 677. One of these "imponderables" concerns a prediction as to an inmate's future behavior, a prediction fraught with subjectivity, mandating broad discretion in the Parole Board's decision-making process. Puchalski v. N.J. State Parole Bd., 104 N.J. Super. 294, 300 (App. Div.), aff'd, 55 N.J. 113 (1969), cert. denied, 398 U.S. 938, 90 S. Ct. 1841, 26 L. Ed. 2d 270 (1970). Precisely because the parole release decision-making process is inherently subjective, it is recognized that the parole release decision ultimately must be made by those with experience and expertise in this field. Beckworth, supra, 62 N.J. at 368; Greenholtz, supra, 442 U.S. at 10, 99 S. Ct. at 2105, 60 L. Ed. 2d at 677.

The standard for parole release "requires that it be demonstrated that the inmate has attained a level of rehabilitation that can assure there is no likelihood that he or she will engage in criminal conduct if released on parole." Trantino v. N.J. State Parole Bd., 154 N.J. 19, 44 (1998)(Trantino IV); Williams v. N.J. State Parole Bd., 336 N.J. Super. 1, 8 (App. Div. 2000). The Parole Board may also consider "whether the inmate has sincerely avowed responsibility for his crime." Williams, supra, 336 N.J. Super. at 8. Thus, whether there is a substantial likelihood an inmate would commit another crime if released on parole is an essentially factual determination; the decision concerning an inmate's suitability for parole should not be reversed by a court unless found to be arbitrary or an abuse of discretion. Trantino IV, supra, 154 N.J. at 25.

There is sufficient credible evidence in the record, with a presumption in favor of and deference to the agency's expertise, to support the Board's denial of petitioner's parole and establishment of an eighteen-month FET. The Board properly considered and weighed the pertinent factors enumerated in N.J.A.C. 10A:71-3.11(b), including petitioner's extensive criminal history, institutional infractions, panel interview, and confidential reports such as risk assessments, ADTC reports and psychological evaluations. The Board also considered petitioner's participation in behavior modification and academic programs and the fact that he remained infraction-free while released on parole pending retrial.

In its November l7, 2004 decision, as amended, the Board concluded (1) there was no evidence in the record of bias on the part of panel member Oscar Doyle, as petitioner claimed; (2) the hearing was properly conducted by two panel members, and the failure of the second member to sign the decision had been rectified; (3) the Parole Board was no longer statutorily restricted to new information since the last hearing when considering the parole application; and (4) petitioner's institutional program participation had been fully considered, and although petitioner had taken actions to correct the reasons for his criminal behavior, his skills were "still considered weak." The Board determined the panel had appropriately considered as mitigating factors petitioner's participation in programs specific to behavior, participation in institutional programs and attempts to enroll in others, and his restoration of commutation time, but found these factors did not preponderate. The Board found as well that the panel had appropriately found the presence of the following aggravating factors to support its conclusion of a substantial likelihood petitioner would re-offend if released on parole:

prior criminal record is extensive and repetitive, nature of criminal record is becoming increasingly more serious, presently incarcerated for multi-crime conviction, prior opportunity on probation terminated, prior opportunities on probation and parole have failed to deter criminal behavior, prior opportunities on probation have been violated in the past, prior incarcerations did not deter criminal behavior and [the] institutional discipline report which reflects a loss of 980 days of commutation time with 291 1/4 days restored. The Panel also noted with concern, as demonstrated by your Panel interview and in confidential material/professional report relied on, that you lack insight into your criminal behavior and minimized your conduct.

The panel interview was just one factor considered by the Board, and even if some of petitioner's comments were taken out of context, there was more than ample evidence to support the Board's decision. We comment briefly on some of the evidence supporting the aggravating factors, namely petitioner's prior criminal history and institutional infractions and the confidential professional report and risk assessment. He has an extensive and repetitive juvenile and adult criminal history. Petitioner had multiple arrests and adjudications as a juvenile commencing in l964 and concluding in l971, when he was fifteen, with charges of rape (amended to immorality) and possessing a stolen car (amended to driving without a license). In l973, at age nineteen, he was convicted as an adult of assault with intent to commit carnal abuse and was sentenced to Yardville. Later that year he was convicted of assault and battery and given a suspended sentence and one year of probation. In l981 he was convicted of criminal sexual contact and criminal restraint and sentenced to two years' probation. In l983 he was convicted of simple assault and given another two-year probationary term. The latter two times he was discharged from probation without improvement. In l986 petitioner was convicted of possession of cocaine, for which he received a four-year sentence. Petitioner's record also discloses numerous other sexual assaults for which he was acquitted or the charges were dismissed. The present charges constituted petitioner's fifth felony conviction, with over twenty arrests.

Oliver also has incurred fourteen disciplinary infractions since his incarceration, including five asterisk offenses, through 2001. Petitioner underwent a psychological evaluation on January 22, 2004. The psychologist diagnosed petitioner as having antisocial personality disorder. Dr. Richard Jarowicz concluded:

In addition, findings on the MnSOST and Static-99 indicate that he is a high risk for re-offending sexually. Prognosis for success on parole is therefore considered to be poor. It is noted that formal risk assessment conducted prior to this evaluation found that inmate had a score of ll on the MnSOST-R, placing him in the committable range as a sexual predator. When compared to a sample population of offenders, the prospect for re-offending is 70% within six years. Inmate also had a score of 6 on the Static-99, placing him in the high-risk category. When compared to a sample population, there is a prospect for re-offending at the rate of 39% in six years, 45% in ten years and 52% in fifteen years.

As previously stated, the Board considered the nineteen-month period petitioner remained infraction-free while out on bail awaiting retrial as part of his criminal history. Williams v. N.J. State Parole Bd., supra, on which petitioner relies, is factually inapposite. Williams was convicted of sexual assault and released on parole, but his parole was revoked after being at liberty for seventeen months because he did not report a change of address and did not inform his parole officer of a new job. 336 N.J. Super. at 4-5. Based on Williams' successful seventeen-month period on parole, coupled with his lack of a prior criminal record or any institutional infractions and conflicting psychological reports regarding his likelihood of success on parole, we found the record did not contain sufficient credible evidence that Williams would commit a crime if released on parole. Id. at 8-10.

 
Although the former version of N.J.S.A. 30:4-123.56c provided that the Board could only look at new information to deny parole, the statute was modified effective August l8, 1997 to authorize the Board to consider the entire record in determining parole eligibility rather than being restricted to new information since the last hearing. Our decision in Trantino v. N.J. State Parole Bd., 331 N.J. Super. 577, 610-611 (App. Div. 2000) (Trantino V), disposes of petitioner's contention that the Board's consideration of his case should be limited to new evidence, since this amendment has been deemed procedural, and therefore its application does not violate the ex post facto clause.

Affirmed.

In his supplemental brief, petitioner also references a May l9, 2005 determination by the parole panel denying him parole and imposing a twenty-three month FET. That matter is not part of this appeal and not ripe for our review because it is not a final decision of the Board.

(continued)

(continued)

11

A-0920-04T2

December 20, 2005