TERRY ORR 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NOT FOR PUBLICATION WITHOUT THE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-4943-10T3

TERRY ORR,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

_________________________________

April 22, 2013

Submitted April 8, 2013 Decided

Before Judges Parrillo and Carroll.

On appeal from the New Jersey State Parole Board.

Terry Orr, appellant pro se.

Jeffrey S. Chiesa, 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 Terry Orr appeals from (1) a December 20, 2010 decision of the New Jersey State Parole Board (Board) denying reconsideration of his request to reduce his seventy-two month future eligibility term (FET) to thirty-six months; and (2) the Board's January 24, 2011 decision denying his request to enter into a parole contract. We affirm both decisions.

I

We briefly summarize the relevant procedural history and the facts based on the limited record before us.

Orr is serving an aggregate sentence of thirty years imprisonment, with a mandatory minimum term of fifteen years, following his convictions on four separate indictments for crimes including manslaughter, robbery, aggravated assault, armed burglary, and various weapons offenses.

Orr first became eligible for parole on February 27, 2008. On November 29, 2007, a two-member panel of the Board denied Orr's parole application. That panel referred Orr's case to a three-member Board panel, and recommended the imposition of a FET beyond the twenty-seven-month term specified for manslaughter convictions under the administrative guidelines. N.J.A.C. 10A:71-3.21.1

On February 6, 2008, the three-member panel imposed a seventy-two-month FET. Consequently, Orr remained ineligible for parole for an additional six-year period.2

Orr administratively appealed the respective panel decisions to the full Board, which affirmed the panels' decisions on August 27, 2008.3 Orr does not appear to have appealed the Board's final decision, denying him parole and setting a seventy-two-month FET date, to this court.

In December 2010, Orr sent a letter to the Board, requesting that it reconsider his FET in light of our unpublished decision in Jeffrey Cameron v. New Jersey State Parole Board, No. A-0349-09 (App. Div. October 21, 2010), in which we ordered the Board to reduce Cameron's ten-year FET to three years. On December 20, 2010, the Board declined to reconsider Orr's FET, deeming the factual circumstances of Cameron's case, and a recent statutory amendment, N.J.S.A. 30:4-123.56, to be inapplicable to Orr.

Also in December, Orr sent a letter to the Board, requesting that he be allowed to enter into a "Parole Contract," pursuant to N.J.S.A. 30:4-123.67. On January 24, 2011, the Board advised Orr that, "[u]pon review of your record, it has been determined that you were ineligible to enter into a Parole Contract because on February 6, 2008 you were seen by the Board and denied parole." This appeal of the Board's December 20, 2010 and January 24, 2011 decisions followed.

II

On appeal, Orr presents the following points for our consideration:4

POINT I: THE NEW JERSEY PAROLE BOARD ABUSED ITS DISCRETION IN NOT RECONSIDERING THE [SEVENTY-TWO]-MONTH PAROLE FUTURE ELIGIBILITY TERM IN LIGHT OF N.J.S.A. 30:4-123.56 AND REDUCING THE FUTURE ELIGIBILITY TERM TO THE MAXIMUM FUTURE TERM OF THIRTY-SIX MONTHS REQUIRED BY THE STATUTE.

POINT II: THE PAROLE BOARD'S DECISION TO NOT ENTER INTO A PAROLE CONTRACT PURSUANT TO N.J.S.A. 30:4-123.67 WAS AN ARBITRARY, CAPRICIOUS AND UNREASONABLE DECISION AND MUST BE REVERSED.

The Parole Board's decisions are highly "individualized discretionary appraisals." Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). The standard of review applicable to other administrative agency decisions applies to our review of the Parole Board's determinations. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24-25 (1998). We must determine:

(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 action; 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.

[Id. at 24.]

"Parole Board decisions should not be reversed by a court unless found to be arbitrary . . . or an abuse of discretion[.]" Id. at 25 (internal citation omitted); Pazden v. N.J. State Parole Bd., 374 N.J. Super. 356, 366 (App. Div. 2005).

A

We first consider Orr's argument that the Board erred in refusing to reconsider his FET in light of our unpublished decision in Cameron, supra, and the 2009 legislative amendment to N.J.S.A. 30:4-123.56.

In Cameron, we affirmed the Board's denial of appellant's parole, but reversed and remanded its imposition of a 120-month FET, essentially reasoning that the usual FET for a manslaughter conviction was twenty-seven months and that the Board abused its discretion by not setting out a basis grounded in the evidence for the grossly extended FET, as required by N.J.A.C. 10A:71-3.21. Cameron, supra, slip op. at 5-9.

Parenthetically, the panel stated that:

[t]his conclusion is reinforced by the 2009 amendment to N.J.S.A. 30:4-123.56(a), which now precludes the Parole 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, 6.5 Although this amendment was not effective when appellant's future parole eligibility term was established, it reflects a legislative policy judgment that the kind of lengthy future eligibility term established in appellant's case is not appropriate under any circumstances.

Accordingly, we affirm that part of the Board's decision that denied appellant parole. We reverse the part of the Board's decision that established a 120 [-] month future parole eligibility term and remand to the Board to establish a future parole eligibility term of not more than thirty-six months.

[Cameron, supra, slip op. at 8-9 (footnote omitted).]

As is apparent, the 2009 amendment to N.J.S.A. 30:4-123.56(a), while not pivotal to the panel's decision, guided its focus as to the legislature's policy judgment that a long-duration FET was not appropriate under any circumstances.

Initially, we note that Cameron is unpublished and, therefore, is not binding precedent. R. 1:36-3. Further, the 2009 legislative amendment to N.J.S.A. 30:4-123.56(a), which placed a three-year cap on FETs, has again been amended so as to eliminate the thirty-six-month maximum FET. L. 2011, c. 67 (approved on May 9, 2011; effective immediately).

Orr's narrow argument in seeking reconsideration before the Board, and now on appeal, is that the Board should have applied the short-lived thirty-six-month statutory maximum FET to reduce his FET. However, this statutory provision, upon which Orr relies, did not become effective until well after the seventy-two-month FET had already been imposed on him in 2008. Moreover, this statutory thirty-six-month maximum for FETs, discussed in Cameron, was soon abolished by the legislature. As this is the sole basis upon which Orr seeks to reduce his FET, on this limited record we conclude that the Board's decision not to reconsider Orr's FET did not violate legislative policy or constitute an abuse of discretion.

B

We next consider Orr's contention that his December 13, 2010 request to enter into a parole contract was improperly denied by the Board on January 24, 2011.

N.J.S.A. 30:4-123.67 was amended, effective August 1, 2010, to require the Board to enter into parole contracts, so long as the inmate satisfies eligibility requirements promulgated by the Board. The statute provides:

a. The appropriate board panel and the Department of Corrections or the Juvenile Justice Commission established pursuant to section 2 of P.L.1995, c.284 (C.52:17B-170) shall enter into formal parole contract agreements with officials of the board, officials of the Department of Corrections or the Juvenile Justice Commission and individual parolees or inmates reduced to writing and signed by all parties, which parole contract agreements stipulate individual programs of education, training, or other activity which shall result in a specified reduction of the parolee's parole term pursuant to section 22 of P.L.1979, c.441 (C.30:4-123.66) or the inmate's primary parole eligibility date pursuant to section 8 of P.L.1979, c.441 (C.30:4-123.52), upon such successful completion of the program. The formal parole contract agreements required under this subsection shall be entered into within two months of an inmate's admission to a correctional facility.

b. Any parolee or inmate shall be permitted to apply to the board for such an agreement. The board panel shall accept all such applications. The board panel shall approve any application consistent with eligibility requirements promulgated by the board pursuant to section 4 of P.L.1979, c.441 (C.30:4-123.48). The commission may, by regulation, specify eligibility requirements for agreements with juvenile parolees and inmates and the procedures for effecting such agreements and reviewing juveniles' application for such agreements.

c. Upon approval of the parolee or inmate's application, the board panel shall be responsible for specifying the components necessary for any such agreement. Upon acceptance of the agreement by the Department of Corrections or by the commission, by the board panel and by the parolee or the inmate, the board panel shall reduce the agreement to writing and monitor compliance with the parole contract agreement at least once every 12 months. The parolee or inmate and the Department of Corrections or the Juvenile Justice Commission shall be given a copy of any such agreement.

d. Any such agreement shall be terminated by the board panel in the event the parolee or inmate fails to or refuses to satisfactorily complete each component of the agreement. The inmate or parolee shall be notified in writing of any such termination and the reasons therefor. Any such termination may be appealed to the full board pursuant to section 14 of P.L.1979, c.441 (C.30:4-123.58).

[(N.J.S.A. 30:4-123.67) (emphasis added).]

On December 13, 2010, Orr wrote to request a "Parole Contract Form." The Board accepted and reviewed Orr's request, and determined that he was ineligible to enter into a parole contract because he was previously denied parole by the Board on February 6, 2008.

As the Board correctly asserts, the purpose of a parole contract agreement is to reduce an inmate's primary, or initial, parole eligibility date (PED).6 N.J.S.A. 30:4-123.67(a). Orr's primary PED was the expiration of his fifteen-year mandatory minimum term, or February 27, 2008. Orr was denied parole, and FET was then imposed by the Board. Orr was thus no longer eligible for a parole contract, since only the primary PED is subject to a reduction under such contracts, while subsequent PEDs are not. N.J.S.A. 30:4-123.67(a).7 Therefore, we conclude that the Board did not abuse its discretion in denying Orr's application for a parole contract.

1 The record does not include a written decision from the two-member panel explaining the basis for denying parole or recommending an extended FET.

2 The record does not include a written decision from the three-member panel, explaining the basis for its decision.

3 The record does not include the Board's August 27, 2008 decision, or an explanation of its basis.

4 Orr's brief contains a third point asserting challenges to his prison work assignment and ability to earn work credits. We decline to consider these arguments, in light of our January 9, 2012 Order, which limited this appeal to the Board's decisions dated December 20, 2010 and January 24, 2011.

5 This amendment was approved on January 18, 2010, and became effective on August 1, 2010.

6 "Primary parole eligibility date" means that date established for parole eligibility for inmates pursuant to N.J.S.A. 30:4-123.51 or 30-123.64. N.J.S.A. 30:4-123.45(b)(4).

7 The statute also allows parolees to enter into parole contracts, pursuant to N.J.S.A. 30:4-123.66, in order to seek a reduction of the parolee's parole term.