KEVIN STOUT 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NOT FOR PUBLICATION WITHOUT THE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-5064-09T4

KEVIN STOUT,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

____________________________

Submitted May 25, 2011 Decided June 7, 2011

 

Before Judges R. B. Coleman and J. N. Harris.

 

On appeal from the New Jersey State Parole Board.

 

Kevin Stout, appellant pro se.

 

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jason S. Postelnik, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Kevin Stout appeals from the May 26, 2010 final decision of the New Jersey State Parole Board (the Board) that denied his application for parole and established a future parole eligibility term (FET) of 180 months. We affirm the denial of parole, but reverse the FET and remand to the Board to establish an FET that is reasonable and in harmony with current legislative approaches to parole.

I.

Stout, now almost fifty-years old, is an inmate currently incarcerated at South Woods State Prison. Having been convicted of murder, Stout is serving a sentence imposed in 1982 of life imprisonment with a minimum term of twenty-five years. His criminal history between 1977 and 1982 was extensive; it included several parole violations, and Stout received incarcerative sanctions accordingly. In 1997, while serving the life sentence at East Jersey State Prison, Stout was convicted, on a guilty plea, of possession of a controlled dangerous substance, for which he was sentenced to a concurrent five-year term.

Stout's behavior while incarcerated, aside from the 1997 conviction, was far from exemplary. According to the Notice of Decision of the Board's three-member panel, Stout "incurred at least nine asterisk (serious) infractions and at least thirty-six non-asterisk (less-serious) infractions. See N.J.A.C. 10A:4-4.1(a) ("Prohibited acts preceded by an asterisk (*) are

considered the most serious and result in the most severe sanctions."). Nevertheless, the last time Stout was found guilty of a prohibited act *.204 ("use of any prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff") was in 2000. However, the three-member panel highlighted that it "cannot overlook [Stout's] overall abysmal institutional adjustment."

Stout's first parole eligibility date on his current sentence was in January 2009. An initial parole release hearing was conducted in August 2008, and the matter was referred to a Board panel pursuant to N.J.A.C. 10A:71-3.15(b) ("In the case of an offender serving a term for the crime of murder . . . the hearing officer shall refer the case for a hearing before the appropriate Board panel."). In September 2008, a two-member panel denied parole and referred the matter to a three-member panel to establish an FET.

In its decision to deny parole, the two-member panel found six mitigating factors in Stout's favor:

Participation in program(s) specific to behavior.

 

Participation in institutional program(s).

 

Average to above average institutional report(s).

 

Attempt made to enroll and participate in program(s) but was not admitted.

 

Minimum custody status achieved/maintained.

 

Commutation time restored.

However, it also found ten aggravating factors:

Prior criminal record is extensive and/or repetitive.

 

Presently incarcerated for multi-crime conviction.

 

Prior / Current opportunity(ies) on community supervision (probation / parole) terminated / revoked for the commission of new offense(s).

 

Prior opportunity(ies) on community supervision (probation / parole) has (have) failed to deter criminal behavior.

 

Prior opportunity(ies) on community supervision (probation / parole) has (have) been violated in the past.

 

Prior incarceration(s) did not deter criminal behavior.

 

Institutional infraction(s): numerous / persistent / serious in nature; loss of commutation time; confinement in detention and/or Administrative Segregation; consistent with prior criminal record. Last infraction: 11-11-00.

 

Insufficient problem(s) resolution. Specifically [X] Lack of insight into criminal behavior; . . . [X] Substance abuse problem has not been sufficiently addressed; [X] Other: While [inmate] presents as accepting responsibility for his crimes, he cannot address or discuss his faults or shortcomings.

 

Commission of a crime while incarcerated. Poss[ession of] CDS.

 

Risk Assessment evaluation.

 

[(Emphasis in original).]

 

In December 2008, a three-member panel established an FET of 180 months (fifteen years). It explained its rationale in a balanced and thorough twenty-one page written decision on April 1, 2009. Distilled to its essence, the three-member panel's reasoning for establishing an FET that differed from the presumptive term of twenty-seven months, N.J.A.C. 10A:71-3.21(a)(1), was that "after twenty-eight (28) years of incarceration, [Stout has] not shown the requisite amount of rehabilitative progress in reducing the likelihood of future criminal activity."

Stout's administrative appeal to the full Board resulted in its determination to deny parole and impose the 180-month FET. In affirming the three-member panel's decision, the Board further explained its understanding of the underlying rationale as "based upon a determination that a preponderance of the evidence indicates that there is a substantial likelihood that [Stout] would commit a crime if released on parole at this time." See pre-1997 version of N.J.S.A. 30:4-123.53(a)1; Williams v. N.J. State Parole Bd., 336 N.J. Super. 1, 7 (App. Div.), certif. denied, 165 N.J. 523 (2000) (parole decisions for inmates who are serving sentences for crimes committed before August 18, 1997, are governed by the parole standards set forth in N.J.S.A. 30:4-123.53(a) prior to the amendment on August 18, 1997). This appeal followed.

II.

Our mode and scope of review are both deferential and constrained. We must affirm the Board's decision unless it was unreasonable, unsupported by credible evidence in the record, or contrary to law. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 172 (2001) (Trantino VI). In conducting this limited review, we must accord the Board's decision a presumption of validity; and the burden is on Stout as the challenging party to show that the Board's actions were unreasonable. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div.), certif. denied, 135 N.J. 469 (1993). Moreover, because the Board's 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)), the Board is instilled with "'broad but not unlimited discretionary powers'" in reviewing an inmate's parole record and rendering a release decision. Ibid. (quoting Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971)). "To a greater degree than is the case with other administrative agencies, the Parole Board's decision-making function involves individualized discretionary appraisals." Id. at 201 (citing Beckworth, supra, 62 N.J. at 358-59). The Board's determination that "'there is a substantial likelihood an inmate will commit another crime if released'" on parole must be affirmed on appeal if "'[that] factual finding could reasonably have been reached on sufficient credible evidence in the whole record.'" Id. at 172 (quoting State v. Trantino, 154 N.J. 19, 24 (1998)).

Under this standard, the Board's decision should only be set aside "'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. N.J. Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)), certif. denied, 111 N.J. 649 (1988)). After a careful review of Stout's contentions in light of the record and applicable law, we are satisfied that the two-member panel, the three-member panel, and the Board correctly determined that parole should be denied due to the "substantial likelihood that [Stout] will commit a crime if released on parole at this time." N.J.S.A. 30:4-123.53(a) (pre-1997 version).

However, we conclude contrawise with respect to the 180-month FET. Pursuant to N.J.A.C. 10A:71-3.21(a)(1), when a Board panel denies parole to an inmate serving a sentence for murder, the presumptive FET is twenty-seven months. However, N.J.A.C. 10A:71-3.21(d) permits the establishment of an FET beyond the guidelines if the standard FET is "clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of criminal behavior." In imposing a 180-month FET, the Board substantially exceeded the presumptive twenty-seven month limit by more than twelve years. In doing so, the Board adopted the reasoning of the three-member panel, which relied on the same considerations for denying parole, and concluded that:

during [Stout's] twenty-eight (28) years of incarceration [he has]:

 

been unable to identify the causes of [his] violent behavior; therefore failing to develop adequate insight into [his] violent personality characteristic; and

 

failed to develop adequate insight into [his] criminal personality characteristic. When asked multiple times what insight [he] gained into the violent and anti-social behavior involved in [his] crimes, [he] provided generic, obvious and formulaic statements to the Panel such as . . . [his] belief that [he is] now a "grounded man;" that [he] now views issues from a "humanistic standpoint of view;" and that during [his] counseling [he] talk[s] about issues that are "pertinent." In total, [he] could not sufficiently explain the underlying motivations that impelled [him] to go on a thirty-day crime spree (after being paroled) resulting in [him] shooting a sixty-four year old woman in the face, killing her, during the course of a robbery; and

 

failed to appropriately and adequately address a contributing factor (substance abuse) of [his] violent behavior through specific participation or by other methods, which would demonstrate satisfactory evidence of rehabilitative progress. Specifically, it is clear that the narcotic program participation that [he has] thus far attended has given [him] little insight into [his] addiction, [his] stressors and or the enabling factors that have contributed to [his] deadly behavior; and

 

committed a new criminal offense during [his] incarceration, specifically, [he] pled guilty to the offense of Possession of CDS after being found to be in the possession of a large quantity of illegal narcotics while housed in East Jersey Prison; and

 

continued [his] anti-social, maladaptive behavior during [his] incarceration by committing numerous serious institutional infractions.

 

We find this reasoning unpersuasive to warrant the imposition of an FET nearly seven times the presumptive term. Although these findings clearly warrant serious notice, we conclude that an FET of 180 months is manifestly excessive, even in light of the confidential materials that were available to the three-member panel and Board, and which we have reviewed. Moreover, the establishment of such an inordinately lengthy FET did not properly account for the temporal remoteness of Stout's criminality and prohibited acts, the last occurring in 1997 and 2000 respectively.

Stout argues that our determination should apply the 2010 amendment to N.J.S.A. 30:4-123.56(a), which precluded the Board from establishing a future parole eligibility date that is "more than three years following the date on which an inmate was denied release." L. 2009, c. 330, 6 (approved on January 18, 2010; effective on August 1, 2010). Although this amendment was not effective when Stout's FET was established, it reflected a legislative policy judgment that a long-duration FET, such as established in Stout's case, was not appropriate under any circumstances. However, the Legislature recently revised N.J.S.A. 30:4-123.56(a) to remove the three-year cap on FETs.2 L. 2011, c. 67 (approved on May 9, 2011; effective immediately). Thus, the former short-lived legislative mandate for a maximum FET of thirty-six months in all cases is not applicable to Stout's case. Nevertheless, we reverse that part of the Board's decision establishing a 180-month FET and remand to the Board to impose an appropriate term in conformity with law.

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

 

 

 

 

1 L. 1979, c. 441, 9. N.J.S.A. 30:4-123.53(a), as amended in 1997, L. 1997, c. 213, 1, now provides:

 

An adult inmate shall be released on parole at the time of parole eligibility, unless information supplied in the report filed pursuant [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 This amendment also eliminated the so-called Statutory Early Release Parole Program, which was targeted for repeal by elected officials in 2010. After an initial legislative effort was conditionally vetoed by the Governor in April 2011, amended bills concurring with the Governor's recommendations were passed in the Senate by a vote of thirty-four to one, and in the Assembly by a vote of seventy-three to three. The Governor signed the final version of the legislation on May 9, 2011. We take judicial notice of these events pursuant to N.J.R.E. 201(a).