SAMUEL PETTAWAY 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NOT FOR PUBLICATION WITHOUT THE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-4084-09T1

SAMUEL PETTAWAY,

Appellant,

v.

NEW JERSEY STATE PAROLE

BOARD,

Respondent.

________________________________________________________________

June 3, 2011

 

Submitted May 23, 2011 Decided

 

Before Judges Lisa and Sabatino.

 

On appeal from the New Jersey State Parole Board.

 

Samuel Pettaway, 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, Samuel Pettaway, a State Prison inmate, appeals from the January 27, 2010 final decision of the New Jersey State Parole Board (Board) denying him parole and imposing a fifteen-year future eligibility term (FET). For the reasons that follow, we affirm the denial of parole, but reverse the FET and remand to the Board to re-determine the length of the FET.

Appellant is serving several sentences, arising out of several criminal convictions from the early 1980s. The most heinous among them occurred on November 14, 1981, when appellant, who was then on bail for pending criminal charges, acting with two co-perpetrators, kidnapped and repeatedly raped a teenage girl.

On that occasion, appellant and his cohorts observed a teenage couple in a parked car. They forcibly removed the teenagers from the car. They pistol-whipped the boy, locked him in the trunk of a stolen car, and left him there. They then drove the girl a substantial distance to a desolate area, where they stripped her of her clothing and vaginally raped her five times. They then inserted a bottle and the handle of a hammer into her vagina. Appellant and his compatriots were laughing during the course of the assaults. They eventually released the girl, after which they drove the vehicle, which was owned by the boy they had kidnapped, to another location, where they stripped it and burned it.

For this episode, appellant was convicted of aggravated assault, armed robbery, two counts of theft, two counts of kidnapping, robbery, possession of a weapon for an unlawful purpose, six counts of aggravated sexual assault while armed, and aggravated arson. Appellant was initially sentenced for these offenses on September 21, 1983. After a remand from this court, he was resentenced on September 18, 1987. His ultimate sentence for these offenses was eighty-seven years imprisonment with a twenty-five-year parole disqualifier. When aggregating this sentence with those appellant is serving for his other crimes, his overall sentence is ninety-seven years with a twenty-five-year parole disqualifier.

Appellant first became eligible for parole on September 12, 2008. The matter was referred to a two-member panel.

The panel considered these aggravating factors: extensive and repetitive prior record; nature of the criminal record being increasingly more serious; presently incarcerated for multi-crime convictions; committed new offenses while on juvenile parole; prior opportunities on juvenile probation failed to deter criminal behavior; prior opportunities on probation were violated; prior incarceration did not deter criminal behavior; commission of numerous, persistent, and serious institutional infractions, resulting in loss of commutation time and administrative segregation (the last infraction having occurred on December 6, 2006); and insufficient problem resolution (marked by lack of insight into criminal behavior and minimization of conduct).

The panel considered as mitigating factors: participation in programs specific to behavior; participation in institutional programs; attempts to enroll and participate in programs for which he was not admitted; and restoration of commutation time.

The panel also considered appellant's unfavorable risk assessment evaluation, his panel interview, and his pre-parole report. The panel considered all of the documentation in appellant's case file, including a confidential professional report.

Based upon the assessment of these factors, the two-member panel found that a substantial likelihood existed that appellant would commit a new crime if released on parole at that time. Accordingly, it entered a decision denying parole and referring the matter to a three-member panel for establishment of an FET.

Appellant submitted a written statement to the three-member panel. He provided information and submitted arguments by way of mitigation for the panel's consideration in determining the length of his FET.

On November 5, 2008, the three-member panel issued its decision denying appellant parole, and explaining in a twenty-page written opinion the reasons for its imposition of a fifteen-year FET. In essence, the panel elaborated on the aggravating factors found by the two-member panel, explaining why substantial weight should be given to many of them. For example, the three-member panel noted that appellant's institutional disciplinary infractions included nine asterisk offenses and eight non-asterisk offenses, and that six of his infractions involved the use or possession of narcotics. The panel also noted that the confidential psychological evaluation conducted on March 25, 2008 found that appellant demonstrated poor judgment and impulse control, that he minimized, denied and avoided taking responsibility for his criminal conduct, and had a high likelihood of reoffending.

After the three-member panel issued its decision, appellant obtained further review before the full Board. Appellant submitted a written statement, taking exception to the decisions of the panels, and urging the Board to grant him parole, or, alternatively, to impose a more reasonable FET. On January 27, 2010, the Board issued the final agency decision. It affirmed the denial of parole and fifteen-year FET imposed by the three-member panel. This appeal followed.

In reviewing the final decision of a state administrative agency, our function 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). We will set aside an agency decision only "'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.'" N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.) (quoting 613 Corp. v. State Div. of the State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)), certif. denied, 111 N.J. 649 (1988). These principles take on added significance in parole determinations, because the Board's decisions are "highly 'individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (Trantino VI) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359, certif. denied, 63 N.J. 583 (1973)), modified on other grounds, 167 N.J. 619 (2001). We will not set aside a decision that is factually supported by the record and not arbitrary, capricious or unreasonable. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).

Our review of the record satisfies us that the Board's finding that appellant was likely to commit another crime if released at the time of his parole denial is supported by substantial credible evidence and is not arbitrary, capricious or unreasonable. Accordingly, there is no basis for judicial interference with the Board's decision to deny appellant parole.

However, we have a different view regarding the fifteen-year FET. At the time of the administrative proceedings in this case, including the final Board decision, N.J.S.A. 30:4-123.56a required the Board to "develop a schedule of future parole eligibility dates for adult inmates denied release at their eligibility date." Pursuant to that statutory mandate, the Board adopted regulations which authorized, for the offenses applicable here, a presumptive twenty-seven-month FET, which could be adjusted upward or downward by nine months, thus resulting in a maximum thirty-six-month FET. N.J.A.C. 10A:71-3.21. The regulation further provided, however, that a three-member panel could exceed that cap if it concludes that it is "clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior." Ibid. It was in reliance upon this authority that the three-member panel and ultimately the Board imposed the fifteen-year FET in this case.

As we have described, both panels and the Board acknowledged that appellant has participated in some programs and attempted to participate in others for which he was not admitted. He committed these crimes at a very young age. He was born in March 1962, and was thus nineteen years old when he committed the kidnapping and sexual assault crimes that we previously described. At the time of denial of parole, he had served twenty-seven years in prison.

In 2009, the Legislature amended N.J.S.A. 30:4-123.56a to preclude FETs of "more than three years following the date on which an inmate was denied release." L. 2009, c. 330, 6. We acknowledge that this amendment was not in effect when appellant was denied parole. See L. 2009, c. 330, 12 (amended by L. 2010, c. 6, 1). However, the amendment reflects a legislative judgment that an FET exceeding three years is never appropriate; instead, once an inmate is eligible for parole release, if parole is denied, he or she should be reevaluated at intervals not exceeding three years thereafter.

This policy judgment by the Legislature, although not binding in its particular requirements on the Board in this case, affects our assessment of the propriety of the fifteen-year FET that was imposed in this case. It is five times that which is allowed under current law. It was not guided by any particular standards, other than a Board judgment that a three-year FET was "clearly inappropriate." See N.J.A.C. 10A:71-3.21(d).

Applying all of these considerations, we conclude that the Board mistakenly exercised its discretion in imposing a fifteen-year FET. We therefore remand the matter to the Board for establishment of an FET of shorter duration. We do not hold that the statutory amendment should be accorded pipeline retroactivity, and we do not limit the Board's authority in this case to a thirty-six-month FET. However, we direct the Board to consider the legislative policies evidenced by the amendatory statute in its overall assessment of appellant's situation and in setting a reasonable FET in his case.

Affirmed in part and remanded in part. We do not retain jurisdiction.