DONALD A. STILTON 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NOT FOR PUBLICATION WITHOUT THE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-3116-07T3F3116-07T3

DONALD A. STILTON,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

_______________________________

 

Submitted January 13, 2009 - Decided

Before Judges Wefing and Yannotti.

On appeal from a Final Decision of the

New Jersey State Parole Board.

Donald A. Stilton, appellant pro se.

Anne Milgram, Attorney General, attorney

for respondent (Melissa H. Raksa, Assistant

Attorney General, of counsel; Ellen M. Hale,

Deputy Attorney General, on the brief).

PER CURIAM

Donald Stilton is an inmate in the custody of the Commissioner of the Department of Corrections. He appeals from a Final Decision of the Parole Board denying his application for parole and setting a Future Eligibility Term ("FET") of eighteen months. After reviewing the record in light of the contentions advanced on appeal, we affirm.

On March 24, 2006, Stilton was sentenced to a term of five years in prison after a jury found him guilty of theft by deception, N.J.S.A. 2C:20-4. Thereafter, he entered a negotiated plea of guilty to two counts of simulating a motor vehicle insurance card, N.J.S.A. 2C:21-2.3. He was sentenced to two consecutive fifteen-month terms, to be served consecutively to the five-year sentence for theft. His aggregate sentence is thus seven years and six months.

In December 2006, defendant received a sheet from the Department of Corrections calculating his parole eligibility date to be December 3, 2007. However, in March 2007, he was notified by the New Jersey State Parole Board that his parole eligibility date, as of January 31, 2007, was November 7, 2007, and that the parole process would begin six months before his eligibility date. He was also notified that a parole hearing would be scheduled when his pre-parole package had been completed. For reasons that are not apparent from this record, there was a delay in the preparation and delivery of Stilton's pre-parole package.

Stilton, who had not incurred any disciplinary infractions while in custody, submitted detailed plans for his residence and employment after he was released on parole. He also noted the family support that was available to him.

Stilton appeared before a two-member Board panel who, after the interview, denied parole and recommended an eighteen-month FET. Stilton appealed to the full Board, which also voted to deny parole and imposed an eighteen-month FET. The Board concluded there was a reasonable expectation that Stilton would violate the conditions of his parole if he were to be released at that time. This appeal followed. While the appeal was pending, we granted Stilton's motion to accelerate.

On appeal, Stilton raises the following issues.

POINT I APPELLANT'S RIGHTS TO DUE PROCESS WERE VIOLATED WHEN THE NEW JERSEY STATE PAROLE BOARD:

A. Failed to Provide Appellant a Pre-Parole Package in a timely manner in violation of N.J.A.C. 10A:71-3.7(a) and not allowing appellant adequate time to prepare for his hearings.

B. Failed to Provide Appellant an Initial Hearing in a timely manner in violation of N.J.A.C. 10A:71-13(b).

C. Respondents violated N.J.S.A. 30:4-123.54(a) and 30:4-123.54(c) during the preparation of Appellant[']s Pre-Parole Package, Initial Hearing and Panel & Board Panel Hearing.

D. Respondents violated N.J.A.C. 10A:71-4.3 by not granting Appellant a timely appeal disposition and violating the time periods they were to answer the appeal prejudicing Appellant.

POINT II RESPONDENTS VIOLATED APPELLANT[']S RIGHTS TO A FAIR AND IMPARTIAL HEARING AND DID VIOLATE HIS DUE PROCESS RIGHTS BY:

A. The New Jersey State Parole Board failed to consider all material facts and documents relevant to the case in violation of N.J.A.C. 10A:71-3.11.

B. The New Jersey State Parole Board failed to document by a preponderance of evidence Appellant will commit a crime if released on parole, and considered erroneous information to support their decision based on an incorrect record and file information.

We note at the outset the narrow scope of our review in a matter such as this. Judicial review of any administrative decision is restricted to a consideration of whether the decision at issue is arbitrary, capricious or unreasonable. Karins v. City of Atlantic City, 152 N.J. 532 (1998). Parole decisions are inherently "individualized discretionary appraisals." Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (citation omitted). They are, at bottom, subjective predictions of future behavior. Puchalski v. N.J. State Parole Bd., 104 N.J. Super. 294, 300 (App. Div. 1969). It is only appropriate that a reviewing court be cognizant of the experience and expertise of those who sit on the Parole Board. Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973).

Here, the two-member Board panel and the full Board appropriately took note of Stilton's extensive prior record. His most recent pre-sentence report lists seven indictable convictions and more than thirty municipal court convictions. In addition, three final restraining orders under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, were entered against him upon the application of three different women. It was also appropriate for the Board to note that Stilton had, in the past, when released on parole, violated the conditions of his parole.

Stilton complains that the Board based its decision on the records of another inmate. The Board explains, through counsel, that it relied solely on Stilton's records and that Stilton erroneously received a copy of another inmate's material. The Board did not use that inapplicable material in reaching its decision with respect to Stilton's application.

Stilton also complains that the eighteen-month FET is too long and that the Board abused its discretion in imposing such a term. We note, however, that it is less than the presumptive FET for an inmate serving a sentence for theft.

The Board was not required to accept without question Stilton's assertion that he regretted his past behavior and was ready, at this point, to lead an offense-free life. It was called upon to bring its professional judgment and experience to bear and reach a reasoned determination based upon the material presented to it.

 
Because we cannot characterize the Board's decision as arbitrary, capricious or unreasonable, it is affirmed.

Affirmed.

(continued)

(continued)

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A-3116-07T3

April 1, 2009