LUIS GARCIA 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NOT FOR PUBLICATION WITHOUT THE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-4226-09T1

LUIS GARCIA,

Appellant,

v.

NEW JERSEY STATE PAROLE

BOARD,

Respondent.

________________________________

May 31, 2011

Submitted April 11, 2011 - Decided

Before Judges Sabatino and Alvarez.

On appeal from the New Jersey State Parole Board.

Luis Garcia, 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

Luis Garcia appeals from the Parole Board's decision dated December 16, 2009 denying him parole and establishing a future eligibility period ("FET") of ninety-six months. For the reasons that follow, we affirm the denial of parole, but remand to the Parole Board to reconsider the length of appellant's FET in light of the policies underlying a 2010 amendment to the applicable statute.

Appellant is serving a life sentence as the result of his 1977 conviction by a jury of seven counts of murder by arson and one count of arson. The offenses stemmed from an incident in which appellant, along with several other persons, poured gasoline on the first floor of an apartment house and ignited it. Seven victims died in the ensuing fire. At sentencing, the trial judge merged the arson conviction and six of the murder convictions into the seventh murder by arson conviction.

During his incarceration, appellant has had several disciplinary infractions. These include three "asterisked," i.e., serious, offenses: possession of a weapon, namely a shank, in 2001; possession of heroin in 2001; and use of prohibited substances 2003. The possession of heroin offense resulted in appellant being convicted of possessing a controlled dangerous substance in prison, which produced a three-year custodial term concurrent to the life sentence that appellant is already serving. Appellant also was disciplined in 2004 for unexcused absences from his prison assignments.

Appellant did not receive parole the first time that he became eligible to be considered for it. He became eligible for parole consideration a second time in August 2008, having by that point served slightly more than thirty-one years of his sentence. A hearing officer referred appellant's parole request to a Board panel because of the gravity of appellant's crimes, his prior criminal history, and other circumstances.

On May 29, 2008, a two-member Board panel denied appellant parole and referred his case to a three-member panel for the establishment of an FET period. In reaching its determination, the two-member panel essentially found that the factors weighing against parole were substantial, and that the mitigating factors raised by appellant, including his participation in institutional programs, did not warrant his release on parole.

Subsequently, on October 8, 2008, the three-member panel established an FET for appellant of ninety-six months. In reaching that determination, the three-member panel found several points significant, including: appellant's criminal record; the multifaceted nature of his murder and arson convictions; his disciplinary infractions; his lack of insight into his criminal behavior; his failure to rectify his substance abuse problems; his commission of a crime while incarcerated; and the negative findings of a psychological risk assessment. Like the two-member panel, the three-member panel did not perceive that the mitigating factors identified by appellant were substantial enough to overcome the numerous offsetting adverse factors.

Appellant obtained further review by the full Parole Board, which sustained the three-member panel's determination. In its detailed written decision, the Board concluded that the panel's decision properly determined that "there is a substantial likelihood that [appellant] would commit a crime if released on parole at this time." The Board rejected as unmeritorious each of appellant's criticisms of the three-member panel's rulings, including his claims that the panel had overlooked material facts, had placed undue emphasis on his offense history, had unduly delayed in considering his parole request and denied him a translator, was tainted by a panel member with an alleged bias, and treated him disparately as compared with his co-defendants.

On appeal, appellant argues that the Board's final agency decision was arbitrary and capricious. He further contends that the Board violated his constitutional rights, and transgressed principles of ethics and fundamental fairness.

Our standard of review is exceedingly limited, a deferential one "grounded in strong public policy concerns and practical realities." Trantino v. N.J. State Parole Bd., ("Trantino VI") 166 N.J. 113, 200 (2001). "The decision of a parole board involves 'discretionary assessment[s] of a multiplicity of imponderables . . . .'" Id. at 201 (quoting 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)). "To a greater degree than is the case with other administrative agencies, the Parole Board's decision-making function involves individualized discretionary appraisals." Trantino VI, supra, 166 N.J. at 201 (citing Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 358-59, certif. denied, 63 N.J. 583 (1973)). Consequently, our courts "may overturn the Parole Board's decisions only if they are arbitrary and capricious." Trantino VI, supra, 166 N.J. at 201. We will not disturb the Board's factual findings if they "could reasonably have been reached on sufficient credible evidence in the whole record." Id. at 172 (quoting Trantino v. N.J. State Parole Bd. ("Trantino IV"), 154 N.J. 19, 24 (1998)); see also McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002).

Viewing the record in the present case through that limited prism of review, we affirm the Board's denial of parole to appellant and, in particular, its ultimate conclusion that appellant is likely to commit another crime if released at this time. The assorted procedural, ethical, and constitutional arguments raised by appellant in challenging the Board's action lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(D), (E).

Although we are confident that the Board's denial of parole is fully justified, we remand the ninety-six-month FET period for further consideration in light of the policies underlying the Legislature's 2010 revision of the pertinent statute, N.J.S.A. 30:4-123.56, precluding FET periods that exceed thirty-six months. Although the Board's October 2008 decision in this case precedes the effective date of the statutory amendment, we find it appropriate to afford the Board an opportunity to reassess the length of the FET in a manner that takes into account the objectives of the present law in its amended form. In doing so, we do not hold that the statutory amendment has pipeline retroactivity, nor do we require the Board to limit appellant's FET to thirty-six months. Rather, we order a remand simply to allow the full Board to consider whether the policies of the new statute affect its overall assessment of appellant's situation.

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