PERCY WOODS 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NOT FOR PUBLICATION WITHOUT THE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-0

PERCY WOODS,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

________________________________________________________________

August 29, 2013

Submitted August 14, 2013 Decided

Before Judges Koblitz and Accurso.

On appeal from New Jersey State Parole Board.

Percy Woods, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Shirley P. Dickstein, Deputy Attorney General, on the brief).

PER CURIAM

Percy Woods appeals from a February 22, 2012 final decision of the State Parole Board (Board) that denied his parole request and established a sixty-month future eligibility term (FET). We affirm.

On July 14, 1997, following a trial by jury, Woods was sentenced to an aggregate term of thirty years with a mandatory minimum of fifteen years on charges of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, two counts of first-degree armed robbery, N.J.S.A. 2C:15-1, second-degree burglary, N.J.S.A. 2C:18-2, second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). According to a pre-sentence investigation, defendant was one of four individuals who robbed two people at gunpoint.

Woods, who was twenty-one years old at the time of sentencing, had a prior extensive and serious juvenile record. While in prison, he has committed thirteen disciplinary infractions. Of those, nine were serious asterisk offenses1 including six assaults, one infraction for conduct which disrupts the security or orderly running of a correctional facility, one infraction for misuse or possession of unauthorized electronic equipment and one infraction for use of prohibited substances. He was also found to have committed three infractions for refusing to obey an order and one for unauthorized physical contact.

On July 18, 2011, a two-member Board panel denied parole and referred the case to a three-member panel for the establishment of an FET that could be in excess of administrative guidelines.2 The two-member panel determined that a strong likelihood existed that Woods will commit a new crime if released on parole based on the following factors: a prior extensive, repetitive and increasingly more serious juvenile record; a sentence currently being served for multi-crime convictions; prior community supervision and incarceration, which did not deter criminal activity; numerous institutional infractions; and insufficient problem resolution as demonstrated by Woods' minimization of his prior criminal conduct. In mitigation, the two-member panel found that Woods had attempted to enroll in programs, but was not admitted.

The three-member Board panel set a sixty-month FET, finding that the presumptive time of twenty-three months (plus or minus nine months) was clearly inappropriate. The three-member panel determined that "it is clear that [Woods] continue[s] to remain a substantial threat to public safety." The decision of the three-member panel mentioned in detail the same factors as the two-member panel. Additionally, the October 12, 2011 decision reviewed the facts and circumstances of the crimes for which Woods was sentenced and his lack of insight into his violent behavior as evidenced in his Board panel hearing. The three-member panel also considered in mitigation the various programs Woods had completed and was waiting to participate in, as well as his own letter of mitigation.

The final decision of the Board affirmed, but

amended the Notice of Decision to include "participation in institutional programs and commutation time restored" as mitigating factors. . . . The full Board [found] that [Woods'] program participation was considered by the three member Panel when making their determination to establish a sixty (60) month future eligibility term, as evidenced by the notation of [his] program participation in the narrative Notice of Decision. However, it was inadvertently left off the check list Notice of Decision.

On appeal, Woods raises the following issues3:

POINT I: THE RESPONDENTS FINAL DECISION WHICH RENDERED A SIXTY MONTHS TERM/SENTENCE AGAINST THE APPELLANT IS ARBITRARY AND CAPRICIOUS, AND WAS NOT BASED ON FUNDAMENTAL FAIRNESS, SUBSTANTIAL EVIDENCE AS REQUIRED BY N.J.S.A. 30:4-123.53(a).

POINT II: THE PAROLE BOARD HAS DEMONSTRATED ITS INABILITY TO FOLLOW AND APPLY THE LAW THE ADMINISTRATIVE CODE REGULATIONS PERMITTING "HITS" OUTSIDE OF THE PRESUMPTIVE GUIDELINES SHOULD BE STRUCKDOWN AS ARBITRARY AND UNCONSTITUTIONAL. (Raised Below4).

POINT III: APPELLANT MAINTAINS THAT AN UNCONSTITUTIONAL MODIFICATION IN ADMINISTRATIVE CODE CONSTRUCTION AND CURRENT PAROLE ACT STATUTORY CONSTRUCTION, IMPERMISSIVELY PERMITS PAROLE BOARD MEMBERS TO BE SEATED WITH AN OVERALL PREDISPOSITION TOWARDS DENYING PAROLE TO TITLE 2A AND 2C OFFENDERS CONVICTED OF FIRST AND SECOND DEGREE SERIOUS OFFENSES; AS WELL, UNCONSTITUTIONALLY PROHIBITS A FAIR CROSS-SECTION OF THIS STATE'S RESIDENTIAL COMMUNITY WITHOUT A BACKGROUND IN LAW ENFORCEMENT, FROM BEING SEATED AS A MEMBER OF THE BOARD. (Not Raised Below).

POINT IV: THE RESPONDENTS FAILURE TO CONSIDER MITIGATING FACTORS AT PAROLE HEARINGS ARE IN DIRECT VIOLATION OF THE UNITED STATES & NEW JERSEY CONSTITUTION ON VAGUE LAW AND PROCEDURES DEFINING THE WORD REMORSE AND ITS LEVEL OF ACCEPTANCE AND DEGREE OF GENUINE SINCERITY WHEN EVALUATING AN INMATE'S SUITABILITY FOR PAROLE RELEASE WHAT CONSTITUTE REMORSE AND LACK OF INSIGHT INTO YOUR CRIMINAL BEHAVIOR. (Raised Below).

We apply the same standard to parole decisions as to other agency determinations. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998) (Trantino IV). Such decisions "should not be reversed by a court unless found to be arbitrary . . . or an abuse of discretion[.]" Ibid. (citations omitted). Our scope of review is both deferential and constrained. In conducting this circumscribed review, we must accord the Board's decision a presumption of validity; the burden is on Woods 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. 1993), certif. denied, 135 N.J. 469 (1994).

In determining whether the Board's decision was arbitrary and capricious, the refusal to afford relief must be measured against a three-part standard. First, we must determine "whether the agency's action violat[ed] express or implied legislative policies." Trantino IV, supra, 154 N.J. at 24. Second, we must assess "whether the record contains substantial evidence to support" the agency's decision. Ibid. Finally, we must evaluate "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." Ibid.

The Board carefully reviewed all of the pertinent facts that were available to it. Before granting an inmate parole, the Board is required to complete a "risk assessment" to assist the Board panel "in determining whether the inmate shall be certified for parole . . . ." N.J.S.A. 30:4-123.52(e). The risk assessment requires the Board to consider "both static and dynamic factors." Ibid. Woods received a score of 34, which, according to a confidential psychological report dated September 29, 2011, placed him in a "high risk category for recidivism" with a strong likelihood to reoffend.

Having reviewed the Board's decision, we are satisfied that the record amply supports each of the Board's factual findings. We are satisfied that the two-member panel, the three-member panel and the full Board correctly determined that a preponderance of the evidence in the record demonstrates "that there is a substantial likelihood that the inmate will commit a crime under the laws of the State of New Jersey if released on parole." N.J.A.C. 10A:71-3.10. See Williams v. State Parole Bd., 336 N.J. Super. 1, 7 (App. Div.) (noting "that because defendant was serving a sentence for an offense committed before August 18, 1997, the issue before us is governed by the standard in N.J.S.A. 30:4-123.53(a) and 30:4-123.56(c) prior to the amendment of those statutes on that date"), certif. denied, 165 N.J. 523 (2000). Additionally, an FET longer than the standard guidelines was appropriately set due to Woods' lack of satisfactory progress in reducing the likelihood of criminal behavior. N.J.A.C. 10A:71-3.21(d). Woods' record of serious institutional infractions evidences his lack of rehabilitation. The Board considered appropriate mitigating information.

We do not consider the issues that Woods raises for the first time on appeal concerning the administrative regulations governing the establishment of an appropriate FET and the qualifications for membership of the Board. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

1 "Prohibited acts preceded by an asterisk (*) are considered the most serious and result in the most severe sanctions . . . ." N.J.A.C. 10A:4-4.1.

2 Pursuant to N.J.A.C. 10A:71-3.21(c), the standard FET may be increased when the Board finds that "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."

3 We duplicate the point headings exactly as submitted.

4 Woods' argument that extending incarceration beyond the presumptive parole guidelines is unconstitutional, was not previously raised by him.