MICHAEL L. SUTTON 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NOT FOR PUBLICATION WITHOUT THE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-4986-09T2

MICHAEL L. SUTTON,

Appellant,

v.

NEW JERSEY STATE

PAROLE BOARD,

Respondent.

________________________________

February 16, 2012

Submitted November 30, 2011 - Decided

Before Judges Sapp-Peterson and Ostrer.

On appeal from the New Jersey State Parole Board.

Michael L. Sutton, 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, Michael Sutton, appeals from a January 27, 2010 final agency decision of the Parole Board (Board) that denied his application for parole and established a future eligibility term (FET) of eighty-four months. We affirm.

Appellant is serving a life term for a murder committed in 1978. Although during his more than thirty years of incarceration appellant has committed prison disciplinary infractions, he has been infraction-free since 1998. This most recent consideration of appellant's parole eligibility marks the fourth time appellant has become eligible for parole since 1995.

On October 22, 2008, the full Board gave the following reasons for denying appellant's application for parole: (1) extensive prior criminal history; (2) nature of criminal record became increasingly more serious; (3) prior opportunities on parole failed to deter future criminal behavior; (4) prior incarcerations did not deter criminal behavior; and (5) insufficient problem resolution, specifically a lack of insight into criminal behavior as demonstrated by appellant's panel interview, documentation in appellant's case file, and confidential material upon which the Board relied. However, the Board also noted certain mitigating factors applicable to consideration of appellant's release on parole, including: (1) appellant had been infraction-free since 1998; (2) participated in institutional programs specific to behavior; (3) although he had not been accepted, appellant nonetheless had attempted to enroll and participate in programs specific to his behavior; and (4) had activated and maintained "Gang Minimum" housing status. The present appeal ensued.

On appeal, appellant raises the following points for our consideration:

[POINT I]

THE BOARD FAILED TO DEMONSTRATE BY A PREPONDERANCE OF THE EVIDENCE IN THE WHOLE RECORD THAT [APPELLANT]'S LACK OF SUFFICIENT INSIGHT INTO HIS CRIMINAL BEHAVIOR TRANSLATED INTO LIKELY RECIDIVISM.

. . . .

[POINT II]

THE BOARD ARBITRARILY DENIED [APPELLANT] PAROLE BASE[D] ON INFORMATION NOT CONTAINED IN THE RECORD [N.J.S.A. 30:4-123.17, 18].

. . . .

[POINT III]

THE BOARD ARBITRARILY SET A FUTURE ELIGIBILITY TERM OF EIGHTY[-]FOUR MONTHS IN [APPELLANT]'S CASE.

[POINT IV]

THE SENTENCING COURT DID NOT RELY ON A [PRE-SENTENCE INVESTIGATION REPORT] FOR THE PURPOSE OF SENTENCING IN [APPELLANT]'S CASE.

. . . .

When determining the validity of the Board's denial of parole, the reviewing court must examine:

(1) whether the agency's action violates express or implied legislative policies, i.e., did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its actions; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24 (1998) (Trantino IV).]

The court must accord the Board's decision a presumption of validity, and the burden is on 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. 1993), certif. denied., 135 N.J. 469 (1994). As with other agency decisions, the decisions of the Board should not be disturbed unless they are arbitrary, capricious or unreasonable, or are not supported by substantial credible evidence in the record as a whole. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 192 (2001) (Trantino V). In other words, 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.), certif. denied, 111 N.J. 649 (1988).

Because appellant's offenses were committed in 1978, the governing standard, as then set forth in N.J.S.A. 30:4-123.53(a) (1979) (amended 1997), required his release on parole 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." The Board's determination that "there is a substantial likelihood that the 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.'" Trantino V, supra, 166 N.J. at 172 (quoting Trantino IV, supra, 154 N.J. at 24).

We are satisfied there is sufficient credible evidence in the record to support the Board's finding that there is a substantial likelihood appellant would commit another crime if released on parole. That evidence includes appellant's lengthy criminal record culminating in commission of the felony murder for which he is now incarcerated, his failure to be deterred from committing new offenses following his successful completion of parole and probation in the past, his history of disciplinary infractions during the first ten years of his incarceration, and a confidential psychological evaluation. Although the Board found mitigating factors, it was within the Board's discretionary power to determine that the considerations militating in favor of the finding that there is a substantial likelihood appellant would commit another crime, if released on parole, outweigh those mitigating factors. Therefore, we conclude that the Board did not abuse its discretion in denying appellant's application for release on parole.

Likewise, we discern no abuse of the Board's discretion in fixing appellant's FET at eighty-four months. N.J.S.A. 30:4-123.56(a) requires the Board to "develop a schedule of future parole eligibility dates for adult inmates denied release at their eligibility date." In the exercise of this statutory responsibility, the Board has adopted regulations governing the schedule of future parole eligibility dates for inmates. N.J.S.A. 30:4-123.48(d). Relevant to our discussion is N.J.A.C. 10A:71-3.21, which, in pertinent part, states:

(a) Upon determining to deny parole to a prison inmate, a two-member adult Board panel shall, based upon the following schedule, establish a future parole eligibility date upon which the inmate shall be primarily eligible for parole.

1. Except as provided herein, a prison inmate serving a sentence for murder, manslaughter, aggravated sexual assault or kidnapping or serving any minimum-maximum or specific sentence in excess of [fourteen] years for a crime not otherwise assigned pursuant to this section shall serve [twenty-seven] additional months.

. . . .

(c) The future parole eligibility dates required pursuant to (a) . . . above may be increased or decreased by up to nine months when, in the opinion of the Board panel, the severity of the crime for which the inmate was denied parole and the prior criminal record or other characteristics of the inmate warrant such adjustment.

Thus, in accordance with this regulation, an inmate serving a sentence for felony murder would normally have an FET of twenty-seven months. This term is subject to extension for up to another nine months if warranted by "the severity of the crime for which the inmate was denied parole and the prior criminal record or other characteristics of the inmate." N.J.A.C. 10A:71-3.21(c). In addition, subsection (d) of N.J.A.C. 10A:71-3.21, in effect at the time the Board denied appellant parole, authorized an additional extension of the FET if 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."

By imposing an eighty-four-month FET, it is apparent the Board exercised its authority under this subsection to establish an extended FET. In doing so, the Board essentially relied upon the same factors it considered when it denied appellant's application for release on parole, as it is permitted to do under N.J.A.C. 10A:71-3.21. The Board stated that notwithstanding thirty years of incarceration, appellant had

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

failed to develop adequate and appropriate insight into [his] anti-social criminal behavior and what would return [him] to future criminal behavior. The Board believes that although [appellant claims] to recognize possible issues that affected [him] at a young age, such as the abuse of alcohol and resulting problems with anger and the new revelation of physical abuse at the hands of [his] mother, [he has] not yet explored why [his] life experiences affected [him] to specifically lead a life marked with crime, ultimately culminating in [him] beating an elderly woman to death during the course of a burglary; and [although appellant has]

demonstrated some remorse and empathy for the victim . . ., however[,] those offerings are tempered with [his] claims that the victim struck and kicked at [him], precipitating [his] deadly attack on her.

The findings do not reflect arbitrary, capricious, or unreasonable action by the Board. Consequently, we discern no basis to disturb the Board's decision.

Affirmed.