HEROLD ST. PIERRE 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NOT FOR PUBLICATION WITHOUT THE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-0411-10T2

HEROLD ST. PIERRE,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

______________________________

October 31, 2011

Submitted September 20, 2011 - Decided

Before Judges Reisner and Simonelli.

On appeal from the New Jersey State Parole Board.

Herold St. Pierre, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Herold St. Pierre appeals from the decision of defendant New Jersey State Parole Board (Board) denying parole and imposing a 120-month future eligibility term (FET). We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

The record reveals that following a jury trial, St. Pierre was convicted of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a; second-degree manslaughter, N.J.S.A. 2C:11-4a(1); second-degree vehicular homicide, N.J.S.A. 2C:11-5; second-degree eluding, N.J.S.A. 2C:29-2b; five counts of second-degree aggravated assault, N.J.S.A. 2C:12-1b(6); and simple assault, a disorderly persons offense, N.J.S.A. 2C:12-1a. On August 17, 1998, he was sentenced to a term of thirty-eight years with thirteen years of parole ineligibility. On August 24, 1998, he pled guilty to third-degree theft of a motor vehicle, N.J.S.A. 2C:20-3. He received a four-year consecutive sentence.

St. Pierre became eligible for parole for the first time on July 17, 2009. On May 11, 2009, a two-member Board panel denied parole based on, among other things: prior criminal record is extensive and repetitive; nature of criminal record is increasingly more serious; presently incarcerated for a multi-crime conviction; prior opportunities on probation have failed to deter criminal behavior; prior incarceration did not deter criminal behavior; commission of institutional disciplinary infractions, which are serious in nature, and have resulted in loss of commutation time and confinement in detention/ administrative segregation; insufficient problem resolution, specifically, a lack of insight into criminal behavior and

minimization of conduct, as demonstrated by the panel's interview, and commission of a crime while on bail. The panel also considered mitigating factors, such as appellant's participation in institutional programs, his average to above-average institutional reports, his attempts to enroll and participate in programs, and the restoration of his commutation time.

A two-member Board panel establishes a FET upon denying parole to an inmate. N.J.A.C. 10A:71-3.21(a). For an inmate who is serving a sentence for manslaughter, such as St. Pierre, the FET shall be twenty-seven months. N.J.A.C. 10A:71-3.21(a)1. If the two-member Board panel finds the twenty-seven-month FET to be inappropriate, it must refer the case to a three-member Board panel. N.J.A.C. 10A:71-3.21(d)1. The three-member Board panel may establish a FET beyond 27 months if the twenty-seven-month term is "clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior." N.J.A.C. 10A:71-3.2(d). In so doing, the three-member Board panel shall consider the factors enumerated in N.J.A.C. 10A:71-3.11.

The two-member Board panel referred St. Pierre's case to a three-member Board panel pursuant to N.J.A.C. 10A:71-3.21(d) to establish a FET beyond twenty-seven months. On December 9, 2009, a three-member Board panel considered the case and established a 120-month FET pursuant to the provisions of N.J.S.A. 30:4-123.56 in effect at that time, which permitted a FET in excess of three years. The three-member Board panel relied on the same factors on which the two-member Board panel had relied, and further noted that, during his thirteen-year incarceration, St. Pierre had been unable to identify the causes of his criminal behavior, failed to develop adequate and appropriate insight into recognizing issues that would return him to future criminal behavior, was unable to demonstrate empathy for his victims, and continued to minimize his criminal behavior. The three-member Board panel also considered the same mitigating factors the two-member Board panel considered, and St. Pierre's letter of mitigation.

On January 18, 2010, N.J.S.A. 30:4-123.56a and b were amended, effective August 1, 2010. The amendments precluded the imposition of a FET "more than three years following the date on which an inmate was denied release."1 On June 5, 2010, St. Pierre administratively appealed to the Board.2 On August 25, 2010, the Board affirmed the three-member Board panel's decision to deny parole and establish a 120-month FET. This appeal followed.

On appeal, St. Pierre raises the following arguments for our consideration:

Point I

The Decision of the New Jersey State Parole Board to Deny Parole and Impose a Future Eligibility Term of 120 Months Must be Reversed Because it is Arbitrary and not Supported by the Evidence Contained in the Record.

Point II

The Parole Board Imposition of a 120 Month FET Must be Vacated Because it is Contrary to Law and Excessive.

We find insufficient merit in St. Pierre's first argument to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). 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) (citation omitted). "Accordingly, the Board 'has broad but not unlimited discretionary powers,' and its determinations 'are always judicially reviewable for arbitrariness.'" Ibid. (citation omitted). 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." Ibid. (citation omitted). 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) (quoting N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988)), 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, and, therefore, affirm that determination.

However, we are constrained to reverse and remand as to the imposition of a 120-month FET. The three-member Board panel denied parole and set the 120-month FET. That decision was not final because St. Pierre timely appealed to the Board. On appeal, the Board could have modified, reversed, or remanded the case to the three-member Board panel for further consideration. N.J.A.C. 10A:71-4.2(f). Thus, the FET determination was not final until the Board rendered its decision on August 25, 2010. The amendments to N.J.S.A. 30:4-123.56a and b, which precluded the imposition of a FET in excess of three years, were in effect at the time of the Board's decision. Accordingly, the Board was bound by the three-year FET limitation.

Affirmed in part, reversed in part, and remanded for imposition of a FET not to exceed three years following the date on which St. Pierre was denied release.

1 An amendment to N.J.S.A. 30:4-123.56, effective May 9, 2011, abolished these amendments.

2 At the time appellant filed his appeal, N.J.A.C. 10A:71-4.2(a) provided for a 180-day filing deadline. An amendment to N.J.A.C. 10A:71-4.2(a), effective December 6, 2010, reduced that deadline to 90 days.