WILLIE WILLIAMS 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NOT FOR PUBLICATION WITHOUT THE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-1201-09T2

WILLIE WILLIAMS,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

_______________________________

February 2, 2011

Submitted December 8, 2010 - Decided

Before Judges R. B. Coleman and Lihotz.

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

Willie Williams, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Willie Williams, an inmate confined in South Woods State Prison, Bridgeton, appeals the September 30, 2009 final decision of the State Parole Board (the Board), which affirmed a three-member Board panel's decision denying parole and establishing a sixty-month future eligibility term (FET). We affirm.

Appellant was first incarcerated in 1975 as a result of his conviction for a series of bank robberies. He was sentenced to an aggregate term of incarceration of twenty-five to thirty-four years. On March 14, 1981, while incarcerated at New Jersey State Prison, appellant stabbed a fellow inmate, who died from the injuries. For that offense, appellant was convicted and sentenced to a term of twenty-five years to life, to be served consecutively with his prior sentence.

Appellant was denied parole when he first became eligible on August 7, 2008. A two-member Board panel considered evidence contained in appellant's "Statement of Mitigation," which included his participation in and completion of various rehabilitation programs. It also considered appellant s criminal history, the increasing seriousness of his criminal offenses, the multiple-crime nature resulting in his current incarceration, numerous institutional infractions for which he was disciplined, his tendency to minimize his conduct and lack of insight into his violent behavior, and the commission of a serious offense while incarcerated, concluding there was a substantial likelihood appellant would commit a new crime if released.

Notice of this decision was sent to appellant, N.J.A.C. 10A:71-3.18(f), and he was informed that the determination of an FET was referred to a three-member Board panel, which reviewed his case. A three-member Board panel set forth its detailed reasons for imposing an FET, which was outside the administrative guidelines. In reaching its decision, governed by N.J.S.A. 30:4-123.53(a)1, the panel concluded appellant had not achieved the requisite rehabilitative progress necessary for parole, noting: appellant's criminal offenses demonstrated a lack of regard for societal rules and mores; his criminal behavior was not curbed by probation as he then committed a series of felonies; moreover, his maladaptive behavior had not been deterred by incarceration as he committed murder while in prison; his lack of institutional adjustment was revealed by the commission of three asterisk and seventeen non-asterisk infractions, the last of which occurred in 1994; and he had not developed problem resolution skills, lacked insight into the motivations for his violent behavior, minimized his maladaptive behavior and had not taken responsibility for his criminal acts.

In its review, the panel relied on a confidential professional report, which included confidential pre-sentence, medical and psychological reports. Further, the panel considered as mitigating factors appellant's participation in various modules for anger management, behavior modification, employment skills and adjustment upon release; average housing and work reports; and appellant's letter of mitigation, wherein appellant expressed his view of his rehabilitation.

The three-member panel concluded the schedule of presumptive future parole eligibility dates, suggesting imposition of a twenty-seven month FET, was "clearly inappropriate due to [appellant's] lack of satisfactory progress in reducing the likelihood of future criminal behavior." N.J.A.C. 10A:71-3.21. Finding appellant "continued to remain a substantial threat to public safety," the panel set an FET at sixty-months.

Appellant appealed and the matter was reviewed by the full Board. On September 30, 2009, after addressing appellant's challenges to the panel's decision, the Board affirmed the denial of parole and establishment of a sixty-month FET in a written determination. This appeal ensued.

Appellant reasserts the arguments he presented before the Board. Before us appellant presents the following arguments for our consideration:

POINT I

BY IGNORING RELEVANT EVIDENCE, THAT APPELLANT ADMITTED HIS GUILT AND REHABILITATED HIMSELF, THE PAROLE BOARD'S REASONS FOR DENYING HIM PAROLE ARE ARBITRARY IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, 1, AND ARTICLE V, II 2 OF THE NEW JERSEY CONSTITUTION.

POINT II

THE PAROLE BOARD'S USE OF I). SERIOUSNESS OF THE CRIME; AND II). THE MURDER TO DENY PAROLE; ARE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, 1, AND ARTICLE V, II 2 OF THE NEW JERSEY CONSTITUTION.

POINT III

THE PAROLE BOARD'S ARBITRARY FAILURE TO IMPLEMENT THE PAROLE ELIGIBILITY MONITORING SYSTEM (PEMS) IS IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION, ARTICLE I, 1, ARTICLE V, II 2 OF THE NEW JERSEY CONSTITUTION, AND N.J.S.A. 30:4-123.52(c).

POINT IV

N.J.S.A. 30:4-123.56(b) AND N.J.A.C. 10A:71-3.21(d) ARE VAGUE AND MUST BE VOIDED BECAUSE THEY FAIL TO GIVE APPELLANT NOTICE AND FAIR WARNING THAT HE COULD BE SUBJECT TO A 60 MONTH FET IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, 1 and ARTICLE V, II, 2 OF THE NEW JERSEY CONSTITUTION.

POINT V

THE ESTABLISHMENT OF THE 60 MONTH FET IS ARBITRARY BECAUSE THE THREE-MEMBER PANEL FOCUSED ON THE NATURE OF THE CRIMES, AND THE REASONS FOR THE 60 MONTH FET ARE NOT ARTICULATED IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, 1 and ARTICLE V, II, 2 OF THE NEW JERSEY CONSTITUTION.

POINT VI

THE THREE-MEMBER PANEL'S USE OF CONFIDENTIAL INFORMATION FOR THE IMPOSITION AND ESTABLISHMENT OF THE 60 MONTH FET IS ARBITRARY BECAUSE IT WAS NOT USED AT [A]PPELLANT'S HEARING BEFORE THE TWO-MEMBER PANEL IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, 1 and ARTICLE V, II, 2 OF THE NEW JERSEY CONSTITUTION.

POINT VII

BY CALCULATING APPELLANT'S 60 MONTH (5 YEAR) FET AS IF HE HAD A 15 YEAR SENTENCE, THE NJSPB HAS ARBITRARILY INCREASED THE TIME HE MUST SPEND IN PRISON. THIS IS IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, 1 OF THE NEW JERSEY CONSTITUTION AND THE EX POST FACTO CLAUSES OF THE UNITED STATES CONSTITUTION, ARTICLE I, 10, CLAUSE 1, AND THE NEW JERSEY CONSTITUTION, ARTICLE IV, 7, 3.

Our scope of review is limited. We recognize the Board has "broad but not unlimited discretionary powers," in rendering parole decisions. Trantino v. N.J. State Parole Bd., 166 N.J.113, 173 (2001) (Trantino VI) (quoting Monks v. N.J. State Parole Bd., 58 N.J.238, 242 (1971)). Generally, the Board's actions are presumed valid and reasonable, In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff d, 135 N.J. 306 (1994), as its decisions are considered "highly 'individualized discretionary appraisals.'" Trantino VI, supra, 166 N.J. at 173 (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). "Accordingly, the critical and controlling question in this appeal is whether a preponderance of the credible evidence in the record supports the Parole Board's determination that there is a substantial likelihood that [appellant] will commit a crime if he is released on parole." Id. at 126.

An administrative agency s decision will only be set aside if there is, "'a definite conviction that the determination below went so far wide of the mark that a mistake must have been made.'" N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.) (quoting 613 Corp. v. State of N.J., Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)), certif. denied, 111 N.J. 649 (1988). In applying these standards, we find no basis to disrupt the Board s decision to deny parole and set a sixty-month FET.

Appellant's arguments claiming deprivation of due process and his assertion that N.J.S.A. 30:4-123.56(b) and N.J.A.C. 10A:71-3.21(d)2 are unconstitutionally vague and should be voided for failure to give notice and fair warning that an inmate could be subject to a sixty-month FET lack sufficient merit to warrant extensive discussion in our opinion. R. 2:11-3(e)(1)(E).

In addition, we decline to consider appellant's argument, raised for the first time before us, that his Due Process rights were violated by the Board s failure to implement the Parole Eligibility Monitoring System (PEMS). It is well-settled that we decline to consider questions or issues not previously presented when an opportunity to do so was available. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Regarding appellant's remaining arguments, we reject his claims that the Board's determination to deny parole was arbitrary, ignored relevant evidence of his asserted rehabilitation, and failed to articulate the basis of the extended FET. The Board specifically referenced consideration of appellant's Statement of Mitigation and his participation in rehabilitation programs and job training. These facts alone, however, were found insufficient to establish parole eligibility when weighed against appellant's failure to accept responsibility for his violent behavior, suggesting his criminal conduct resulted because he "was a foolish young man" and to actually develop an understanding of his violent behavior and how to resolve his anger. Further, appellant's maladaptive behavior continued while in custody as reflected by the 1981 murder, N.J.A.C. 10A:71-3.11(b)(3), and the significant and numerous institutional infractions, the most recent of which was indecent exposure. Finally, the Board was not persuaded by what appellant labels his remorseful admissions of guilt, finding his statements to be "[g]eneric, obvious and formulaic[.]"

We also determine the Board properly reviewed and relied on confidential information as a factor in establishing the sixty-month FET. See Thompson v. N.J. State Parole Bd., 210 N.J. Super. 107, 126 (App. Div. 1986) (holding there are times when a Parole Board must utilize confidential information in rendering a parole decision).

Finally, the length of the term was permissible. As authorized by the applicable statute, N.J.S.A. 30:4-123.56, a schedule of presumptive FETs was implemented.3 N.J.A.C. 10A:71-3.21. Although the presumptive FET for a matter such as this was twenty-seven months, an additional extension of the FET is permissible when the term that would otherwise be established "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:71-3.21(d). The regulations in effect when this matter was reviewed do not limit the permissible duration of an extraordinary FET, except to prohibit a term beyond inmate's maximum sentence. N.J.A.C. 10A:71-3.21(g).

We conclude the Board reasonably exercised its discretion and explained its findings to support its determination, confining its reference to the likelihood of appellant's criminal behavior upon release rather than the nature of his past criminal offenses. The determination is reasonably and rationally related to the reduction of the risk of recidivism, justifying denial of parole.

A decision of the Board "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." Greenholtz v. Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1, 10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979). We have no doubt that the Board reviewed the documentation provided by appellant, N.J.A.C. 10A:71-3.11(a), when weighing all pertinent factors, including those set forth in N.J.A.C. 10A:71-3.11(b).

There is nothing in the record that suggests the Board's action was either arbitrary or unreasonable. The denial of parole was made after appellant's challenges to the panel's decision were fully considered and determined appellant's assertions to the contrary are unfounded. We conclude the Board's decision to deny defendant parole and establish a sixty-month FET is supported by substantial evidence contained in the record. SeeTrantino v. N.J. State Parole Bd., 154 N.J.19, 24-25 (1998). We discern no basis on which to reverse that determination, which reflects the Board's expertise as applied to appellant's individual application for parole.

1 The standard set forth in N.J.S.A. 30:4-123.53(a), in effect when appellant was convicted, required parole release unless it was established "by a preponderance of the evidence that 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." L. 1979, c. 441, 9. The statute has since been amended. In 1997, L. 1997, c. 213, 1, N.J.S.A. 30:4-123.53(a) now provides:

An adult inmate shall be released on parole at the time of parole eligibility, unless information supplied in the report filed pursuant to [N.J.S.A. 30:4-123.54] or developed or produced at a hearing held pursuant to [N.J.S.A. 30:4-123.55] indicates by a preponderance of the evidence that the inmate has failed to cooperate in his or her own rehabilitation or that there is a reasonable expectation that the inmate will violate conditions of parole imposed pursuant to [N.J.S.A. 30:4-123.59] if released on parole at that time.

2 N.J.S.A. 30:4-123.56(b) articulates that an FET must be established upon denial of parole. N.J.A.C. 10A:71-3.21(d) delineates the basis upon which the Board may establish an FET in excess of the proposed guidelines.

3 We note the statute was amended effective August 1, 2010, to proscribe a maximum FET of thirty-six months from the date parole was first denied. This amendment adopted after appellant's parole hearing is inapplicable to this matter.