ROBERT COAR 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NOT FOR PUBLICATION WITHOUT THE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-2238-05T32238-05T3

ROBERT COAR,

Plaintiff-Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Defendant-Respondent.

_______________________________________________________________

 

Submitted August 22, 2006 - Decided August 29, 2006

Before Judges R. B. Coleman and Holston, Jr.

On appeal from a Final Decision of the New Jersey State Parole Board, 314968.

Robert Coar, appellant, pro se.

Zulima V. Farber, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Appellant, Robert Coar, appeals the January 6, 2006 letter opinion of the full New Jersey State Parole Board (Parole Board), affirming the August 23, 2005 Parole Board Panel (Panel) decision, which denied appellant parole and established a twenty-nine (29) month future parole eligibility term (FET). We affirm.

Appellant is an inmate currently incarcerated at South Woods State Prison in Bridgeton, serving a fourteen-year sentence for two counts of sexual assault and one count of endangering the welfare of a child. After a jury trial, appellant was convicted of one count of second-degree sexual assault against D.K., who was eight years old at the time of the assault, one count of sexual assault against J.M.P., who was ten years old at the time of the assault, and one count of endangering the welfare of a child, which related to both sexual assaults and to the displaying of pornographic movies to the minor victims.

On October 1, 1999, appellant was sentenced to two consecutive seven-year terms of imprisonment. After serving six years and three months, appellant became eligible for parole on November 27, 2005. On July 29, 2005, appellant received an initial hearing. The hearing officer referred the matter to a Panel. On August 22, 2005, the Panel conducted a hearing, which included a lengthy interview of appellant and a comprehensive review of his parole file. The Panel denied appellant parole and established a twenty-nine month FET. The Panel based its decision on the serious nature of the crime and appellant's insufficient problem resolution ability, specifically, his lack of insight into his criminal behavior and his refusal to discuss his crimes, as demonstrated by the Panel interview and documentation in the case file. In mitigation, the Panel considered appellant's lack of a prior criminal record, his infraction-free institutional record, and his attempt to enroll and participate in program(s) to which he was not admitted.

On September 23, 2005, appellant appealed the two-member Panel's decision to the full Parole Board. On January 6, 2006, the Parole Board affirmed the Panel's decision to deny parole and establish a twenty-nine month FET. This appeal followed.

Appellant presents the following arguments for our consideration:

POINT I

THE PAROLE BOARD HAS VIOLATED PETITIONER'S CONSTITUTIONAL RIGHTS BY PROCEDURAL DEFAULT ON THE ADMINISTRATIVE APPEAL AND SHOULD BE BARRED FROM FURTHER PARTICIPATION.

POINT II

THE PAROLE BOARD HAS NO EVIDENCE OF ANY LIKELIHOOD PETITIONER WOULD COMMIT A NEW CRIME IF RELEASED ON PAROLE.

POINT III

THE APPLICATION OF N.J.A.C. 10A:71-3.21(c) IS EXCESSIVE AND CONSTITUTES DOUBLE JEOPARDY.

POINT IV

THE PAROLE PANEL FAILED TO CONSIDER MATERIAL FACTS BEFORE MAKING [ITS] DECISION TO IMPOSE THE FET.

It is well-established that judicial review of parole determinations is limited to an evaluation of whether the Parole Board acted arbitrarily or abused its discretion in rendering its decision. In conducting this limited review, courts have accorded agency actions presumptions of validity and reasonableness, In re Vey, 272 N.J. Super. 199 (App. Div. 1993), aff'd, 135 N.J. 306 (1994), and the burden is on the challenging party to show that the Parole Board's actions were unreasonable. Bowden v. Bayside State Prison, 268 N.J. Super. 301 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994).

A reviewing court is to review the record and determine 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). In Zachariae v. Division of New Jersey Real Estate Commission, 53 N.J. Super. 60, 62 (App. Div. 1958) (citations omitted), this court described substantial evidence as "such evidence as a reasonable mind might accept as adequate to support the conclusion . . . or, to express it differently, whether the evidence furnished a reasonable basis for the agency's action." Under this standard, an agency's decision can only be set aside "`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.'" New Jersey State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988) (quoting 613 Corp. v. State, 210 N.J. Super. 485, 495 (App. Div. 1986)).

Parole Board decisions are to be considered highly "individualized discretionary appraisals," Trantino v. New Jersey State Parole Bd., 166 N.J. 113, 173 (2001) (Trantino VI) (quoting Beckworth v. New Jersey State Parole Bd., 62 N.J. 348, 359 (1973)), and consequently the "[Parole] board `has broad but not unlimited discretionary powers'" in reviewing an inmate's parole record and rendering a release decision. Id. at 173 (quoting Monks v. New Jersey State Parole Bd., 58 N.J. 238, 242 (1971)). See also Greenholtz v. Inmates of the Nebraska Penal and Corr. Complex, 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 [Parole] Board members based upon their experience with the difficult and sensitive task of evaluating the advisability of parole release.").

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.'" Id. at 10, 99 S. Ct. at 2105, 60 L. Ed. 2d at 677 (quoting Kadish, The Advocate and the Expert-Counsel in the Peno-Correctional Process, 45 Minn. L. Rev./u> 803, 813 (1961)). One of these "imponderables" concerns a prediction as to an inmate's future behavior, a prediction in the Parole Board's decision-making process. Puchalski v. New Jersey State Parole Bd., 104 N.J. Super. 294, 300 (App. Div.), aff'd, 55 N.J. 113 (1969). 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.

Appellant's offenses were committed between 1992 and 1993. Therefore, the standard of parole is that the inmate shall be released on parole unless, "by a preponderance of the evidence . . . there is a substantial likelihood that the inmate will commit a crime under the law of this State if released on parole at such time." N.J.S.A. 30:4-123.53a. Although the parole standard has changed slightly, previous case law and analysis still applies when rendering a parole decision. The Parole Board must consider the aggregate of all pertinent factors, including those set forth in N.J.A.C. 10A:71-3.11(b). Beckworth, supra, 62 N.J. at 360 ("Common sense dictates that [the Parole Board's] prediction as to future conduct . . . be grounded on due consideration of the aggregate of all of the factors which may have any pertinence.").

N.J.A.C. 10A:71-3.11(b) contains a non-exhaustive list of factors that the Parole Board may consider in determining whether an inmate shall be released on parole. The Parole Board must consider, among other things: the facts and circumstances of the offense; aggravating and mitigating factors surrounding the offense; participation in institutional programs; statements by institutional staff with supporting documentation that the inmate is likely to commit a crime if released on parole; and statements by the inmate reflecting the likelihood that he or she will commit another crime. N.J.A.C. 10A:71-3.11(b).

In affirming the Panel's August 23, 2005 decision, the Parole Board stated in its January 6, 2006 letter opinion,

During the consideration of your claims, the full Board determined that the Panel appropriately considered the aggregate of all relevant material facts pursuant to N.J.A.C. 10A:71-3.11 and fully documented and supported their reasons for denying parole pursuant to N.J.A.C. 10A:71-3.18(f). A review of the Notice of Decision indicates that the Panel considered, in mitigation, the lack of a prior criminal record, your infraction-free status, and attempts made to enroll and participate in programs that you were not admitted into. However, the Panel also considered the nature of the current offense and as a result of the Panel interview and documentation in the case file, the Panel determined that you lack insight into your criminal behavior and refused to discuss the crime. In regards to the above cited contentions, the full Board found the Panel appropriately based their decision on the fact that you are currently incarcerated on a multi-crime conviction of a very serious nature, in addition to all other relevant factors, and not solely on the seriousness of the offense. . . . Regarding your contention that the Panel held your refusal to comment on this case against you, the full Board found that the Panel did not use your refusal to discuss the crime as a reason for denial, however pursuant to N.J.A.C. 10A:71-3.11, the Panel did consider your lack of insight into your criminal behavior as an aggravating factor.

We are satisfied that the Parole Board appropriately considered all relevant material facts in appellant's case as enumerated in N.J.A.C. 10A:71-3.11. It is clear that appellant's conviction for sexual assaults committed against two victims under the age of thirteen are indeed serious crimes. In addition, the Parole Board appropriately determined, based upon its interview with appellant and documentation in his case file, that he lacks insight into his criminal behavior. During appellant's panel hearing, he repeatedly refused to discuss his crimes stating, "[w]ell I can't make a statement as to that right now . . . because I'm on a PCR."

Appellant claims, relying on Trantino, that his refusal to discuss his crimes cannot be held against him because he has a pending motion for PCR. Trantino held that The Parole Act of 1979 eliminated punitive aspects of a sentence as an independent basis for determining parole fitness, declaring that post-code inmates will have presumptively satisfied all punitive aspects of their sentence at the time they become eligible for parole. Id. at 370. However, Trantino made clear that the parole decision must address whether there is a substantial likelihood of repetition of criminal behavior. Id. at 369.

Pursuant to N.J.A.C. 10A:71-3.11, the Panel may consider appellant's lack of insight into the nature of his crimes and the failure to take responsibility for his crimes. Paz v. Warden Federal Correctional Institution, 787 F.2d 469, 473 (10th Cir. 1986), cited by appellant, is not to the contrary. In Paz, the petitioner inmate was convicted by a jury of impersonating a federal officer. He reportedly raped a woman during the incident. Id. at 470. The court ruled that the Parole Commissioner overemphasized the fact that the inmate did not admit a rape with which he was never charged, while ignoring overwhelming evidence establishing that the inmate was rehabilitated. Id. at 473. Unlike appellant here, Paz had completed his program plan, i.e., all programs necessary for rehabilitation, and the prison's unit psychologist found that Paz had developed insight into the inappropriateness of his behavior. Id. at 471.

Appellant contends that his administrative appeal of the Panel's August 23, 2005 decision was not heard within forty-five days and, therefore, the Panel's decision must be vacated. This argument is without merit. Any procedural default in deciding the administrative appeal was cured when the appeal was decided on January 6, 2006. N.J.A.C. 10A:71-4.3(e) states, "[t]he failure of the Chairman to provide written notification of a decision within forty-five days of the date the appeal was received shall be deemed a denial of the appeal." Therefore, the lack of written notification to appellant does not constitute a violation of statutory guidelines by the Parole Board, which would warrant reversal of the Parole Board's decision. We are satisfied that appellant was granted a timely parole hearing, offered the opportunity to speak on his own behalf at his hearing, and the decision to deny him parole was based on reliable, credible evidence in the record.

Appellant contends that the FET imposed by the Parole Board was "excessive." However, the Parole Board's imposition of a twenty-nine month FET is in conformity with the applicable code provisions. Pursuant to N.J.A.C. 10A:71-3.21(a)(2), when a Panel denies parole to an inmate serving a minimum-maximum sentence or specific sentence between eight and fourteen years, the standard FET is twenty-three months. However, pursuant to N.J.A.C. 10A:71-3.21(c), a Panel may increase or decrease the standard FET by up to nine months when the severity of the crime(s) and the prior criminal record or the characteristics of the inmate warrant such adjustment. Here, in its discretion, the Panel increased the standard FET by six months. This upward departure was based upon appellant's failure to address his deviant sexual behavior, as demonstrated by his conviction of two second-degree sexual assaults.

Appellant contends the Parole Board should have considered the fact that he "successfully" completed six months of probation in 1983 and 1984 after he was found guilty of the disorderly persons offense of possession of marijuana. However, this is not one of the enumerated mitigating factors that the Parole Board must consider in making a parole decision. Appellant further claims that the Parole Board failed to consider as mitigating factors his purported "average to above average institutional report(s)," that his institutional adjustment has been favorable, and his muscular dystrophy disability. However, appellant received a rating of "poor" on his housing report for personal hygiene. Additionally, on May 3, 2004, he was found guilty of a .254 prison disciplinary charge, refusing to accept a housing assignment in violation of N.J.A.C. 10A:4-4.1. Further, appellant admitted during his Panel hearing that he has not participated in any programs during his incarceration. Appellant's muscular dystrophy condition is not relevant to the setting of an FET.

We are satisfied that there was sufficient evidence before the Parole Board for it to conclude that appellant needs additional time to identify the causes of his criminal behavior and address and gain control of his behavior. We find no abuse of the Parole Board's discretion in setting a twenty-nine month FET in view of the serious nature of the sexual assaults he committed upon the two minors, and the fact that his resulting incarceration has not affected the required change in appellant or his insight. We are thus satisfied that the Parole Board's decision to deny parole and to impose a twenty-nine month FET was reasonable, consonant with the requirements of law, supported by the record, and in the public interest.

Affirmed.

 

Appellant was previously denied parole on May 21, 2002 and March 19, 2004. Both of those denials resulted in twenty-nine month FETs being imposed. Appellant's appeals of the FETs were unsuccessful.

Appellant's case file includes a confidential in-depth psychological evaluation dated May 24, 2005.

The record neither confirms nor refutes that appellant had a PCR petition pending on August 23, 2005.

The record reflects appellant was sentenced to a six-month diversion program (conditional discharge term) by the Wayne Municipal Court for possession of marijuana on May 25, 1983.

(continued)

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A-2238-05T3

August 29, 2006