ALLEN RODZIEWICZ 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NOT FOR PUBLICATION WITHOUT THE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-5994-08T3

ALLEN RODZIEWICZ,

Appellant,

v.

NEW JERSEY STATE PAROLE

BOARD,

Respondent.

__________________________________________________

December 29, 2010

Submitted December 15, 2010 - Decided

Before Judges Fisher and Simonelli.

On appeal from a final decision of the New Jersey State Parole Board.

Allen Rodziewicz, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ellen M. Hale, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Allen Rodziewicz, an inmate of New Jersey State Prison in Trenton, appeals the State Parole Board's denial of parole and imposition of a 120-month future eligibility term (FET). We affirm.

The record reveals that appellant was convicted in 1980 of first-degree murder; a jury found that appellant shot his mother in the head while she slept. The trial judge imposed a life sentence for murder and a consecutive ten-year prison term for weapons possession. Appellant first became eligible but was denied parole in 1997; at that time, the Board imposed a 240-month FET.

Appellant again became eligible for parole in 2007. A two-member panel denied parole based on, among other things: appellant's prior criminal record; the increased severity in his criminal conduct; his incarceration for a multi-crime conviction; his failure to benefit from the opportunities provided by earlier probationary terms, which failed to deter his criminal behavior; appellant's insufficient problem resolution, which included a lack of insight into his criminal behavior, his minimization of his conduct and his failure to address his substance abuse problem; and appellant's continued denial of the murder of his mother. The panel also considered mitigating factors, such as appellant's participation in programs specific to behavior and other institutional programs, his attainment of "average to above average" institutional reports, and the restoration of commutation time. Thereafter, the panel referred the question of whether a FET outside the guidelines was appropriate to a three-member panel.

The three-member panel imposed a 120-month FET. In reaching that determination, the panel noted that appellant was first convicted of driving while intoxicated (DWI) in California in 1973, when he was nineteen years old. He was convicted of DWI in Colorado four years later. Appellant's third conviction, also in Colorado, was for extortion. He received a probationary term and was ordered to undergo psychiatric counseling for a six-month period; other offenses, including carrying a concealed weapon, were dismissed. When appellant moved to New Jersey, the Colorado court transferred probationary supervision to authorities here. The three-member panel relied on appellant's denial of the murder of his mother, his extensive alcohol abuse, the fact that he was also charged with armed robbery in Colorado as well as aggravated assault for shooting his girlfriend in the leg, and the fact that a revolver was used in the murder of his mother. The three-member panel also considered the mitigating factors relied on by the two-member panel when it denied parole.

Appellant administratively appealed the panel determinations to the full Board, which later allowed a ninety-day extension in order to provide appellant with an opportunity to produce an independent psychological evaluation. Appellant failed to take advantage of that opportunity. The full Board affirmed the decisions to deny parole and impose a 120-month FET.

Appellant filed this appeal, presenting the following arguments for our consideration:

I. APPELLANT'S FOURTEENTH AMENDMENT DUE PROCESS LIBERTY INTEREST IN RELEASE FROM CUSTODY CREATED BY STATUTE AND UNITED STATES SUPREME COURT AND STATE SUPREME COURT PRECEDENT WAS VIOLATED BY THE PAROLE DECISION. THE INTEREST WAS FURTHER VIOLATED BY THE USE OF INFORMATION NOT AUTHORIZED BY N.J.A.C. 10A:71-3.11(b) 1 TO 23, AND ARREST NOT RESULTANT IN CRIMINAL CONVICTION NOR EVEN FILING OF CRIMINAL CHARGES.

II. ALTERNATIVELY, AND/OR IN COMBINATION WITH THE ARGUMENTS AS TO POINT I, THE ACTUAL PRACTICES AND PROCEDURES OF THE PAROLE BOARD VIOLATE SUBSTANTIVE DUE PROCESS GUARANTEED BY THE FOURTEENTH AMENDMENT AND THE EX POST FACTO PROHIBITIONS WITHIN ART. I, SEC. 9, CL. 1, AND ART. I, SEC. 10, CL. 1 OF THE UNITED STATES CONSTITUTION.

III. AS A FURTHER ALTERNATIVE THE COMPU-TATION OF A [FET] NOT PERMITTING THE EARNING OF THE MAXIMUM COMMUTATION CREDITS OF 192 DAYS PER YEAR, OR 16 DAYS PER MONTH FOR FRACTIONS THEREOF, VIOLATES N.J.S.A. 30:4-140 SINCE APPELLANT HAS BEEN IN CUSTODY FOR IN EXCESS OF 30 YEARS, AND PURSUANT TO RESPONDENT'S REGULATIONS NO NEW JERSEY PRISONER EXCEPT ONE SERVING A FUTURE ELIGIBILITY TERM OF IN EXCESS OF 30 YEARS WHICH IS IN EXCESS OF 15 TIMES THE NORMAL FET AND EXCEEDS THE INITIAL PERIOD TO SERVE ON A LIFE SENTENCE IMPOSED PURSUANT TO N.J.S.A. 2A:113-4.

IV. A MAXIMUM LIMIT ON A LIFE SENTENCE IMPOSED PURSUANT TO N.J.S.A. 2A:113-4 CAN BE ATTAINED BY CREDITS DEDUCTED UPON THE 75 YEARS IT IS BASED UPON.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.

The Supreme Court has held that the Board's decisions are "highly 'individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). "Accordingly, the Board 'has broad but not unlimited discretionary powers,' and its determinations 'are always judicially reviewable for arbitrariness.'" Ibid. (quoting Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971)). The Board's decisions "depend[] 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." Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979). As the Court observed, parole boards should focus on "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 668. In examining the record in light of the arguments raised, we are satisfied that the Board adhered to these principles and its own guidelines in rendering the final decision. The Board's findings were based "on sufficient credible evidence in the whole record," Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24 (1998), and are entitled to our deference. In its application of those facts, we find nothing arbitrary or capricious in the Board's determination to deny parole here.

In examining the 120-month FET, we reject the argument that a FET beyond the regulatory guidelines violates constitutional due process or fundamental fairness principles. Rejection of that legal argument is implicit in our decision to affirm a thirty-year FET in McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 565 (App. Div. 2002). The Board exercised its discretion to impose a 120-month FET by applying the numerous factors contained in N.J.A.C. 10A:71-3.11, including, as applicable here, the aggravating factors surrounding the offense and the results of psychological evaluations. The applicable standard of review does not permit us to second-guess the Board but instead precludes our intervention except when the Board's decision is arbitrary or capricious. We find no abuse of discretion.