JHON CASTANEDA 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NOT FOR PUBLICATION WITHOUT THE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-5292-11T2

JHON CASTANEDA,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

_____________________________________

May 9, 2013

Submitted April 9, 2013 Decided

Before Judges Messano and Mantineo.

On appeal from the New Jersey State Parole Board.

Jhon Castaneda, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Shirley P. Dickstein, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Jhon Castaneda appeals from the May 30, 2012 decision of the New Jersey State Parole Board (Board) denying him parole and establishing a sixteen-month Future Eligibility Term (FET).1 We affirm.

I.

The record reveals that in 2011, Castaneda pled guilty to second-degree manufacturing, distributing and dispensing cocaine2 and third-degree bail jumping. He was sentenced to concurrent four-year terms of imprisonment.

In November 2011, a hearing officer conducted an initial parole interview and referred Castaneda's case to a two-member panel for a hearing. On January 30, 2012, the panel considered the matter, including an interview of Castaneda, denied parole and established a sixteen-month FET. The panel denied parole after determining "there [was] a reasonable expectation that [Castaneda would] violate conditions of parole if released on parole."

The panel's reasons for denying parole included Castaneda's incarceration for multi-crime conviction and insufficient problem resolution. Specifically, the panel determined Castaneda lacked insight into his behavior as his version of the events did not appear credible; he minimized his conduct; he failed to see the full consequences of his actions; and he downplayed his responsibility for the crimes, stating "he needed money for kids in Columbia." The panel noted as mitigating factors that Castaneda was infraction free, had average to above average institutional reports, and had attempted to enroll and participate in programs.

Castaneda filed an administrative appeal of the panel's decision to the Board. Castaneda contended on appeal that the panel failed to document that a preponderance of evidence indicates there was a reasonable expectation that he would violate the conditions of parole if released on parole; the panel failed to consider material facts; the panel's decision is contrary to written Board policy; the panel's determination was arbitrary and capricious; the hearing officer erred in her notation of an extensive prior record; and, the panel failed to release him on parole as a result of an immigration detainer.

The Board determined that the panel considered the aggregate of the information before it pursuant to N.J.A.C. 10A: 713.11 and fully documented and supported its decision pursuant to N.J.A.C. 10A:71-3.18(f). The Board found the panel's decision was based upon a determination that a preponderance of the evidence indicated that "there is a reasonable expectation that [Castaneda] would violate the conditions of parole if released on parole." The Board rejected Castaneda's argument that the hearing officer's erroneous notation of an extensive prior record undermined the Panel's decision, stating:

With regard to your criminal record, the full Board finds the hearing officer inadvertently checked nature of criminal record is extensive and/or repetitive and/or noted. However, the hearing officer also noted on page one . . . that your only convictions are the noted current offense . . . . The full Board finds that the Panel reviewed all relevant material facts and was fully aware that the current offenses represent your only convictions.

The Board also rejected Castaneda's argument that he was denied parole because he had an immigration detainer. The Board found that N.J.A.C. 10A:71-3.11(c) requires notation of an inmate's immigration detainer; however, it was not used as a basis for his denial of parole.

Before us Castaneda presents the following arguments for our consideration:

POINT I

THE DECISION OF THE NEW JERSEY STATE PAROLE BOARD TO DENY PAROLE AND IMPOSE A FUTURE ELIGIBILTY TERM OF 16 MONTHS MUST BE REVERSED BECAUSE IT IS ARBITRARY AND NOT SUPPORTED BY THE EVIDENCE CONTAINED IN THE RECORD.

POINT II

THE PAROLE BOARD'S IMPOSITION OF A 16 MONTH FET MUST BE VACATED BECAUSE IT WAS MADE WITHOUT CONSIDERATION OF THE TOTALITY OF THE EVIDENCE AND APPLIED FACTORS, WHICH WERE INAPPLICABLE.

II.

Our scope of review is limited. We recognize the Board "has broad but not unlimited discretionary powers" in rendering parole decisions. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173, (2001) (quoting Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971)). Generally, the Board's actions are presumed valid and reasonable, In re Vey, 272 N.J. Super. 199, 205, (App. Div. 1993), aff'd, 135 N.J. 306, (1994), as its decisions are considered highly "individualized discretionary appraisals." Trantino, supra, 166 N.J. at 173 (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). Despite the Board's broad discretion, we review the decision as we do those of other administrative agencies to determine whether the Board has exercised its power arbitrarily or capriciously. Trantino, supra, 166 N.J. at 172-73. In conducting that review, we must consider:

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

"A court may not substitute its judgment for that of the agency." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563, (App. Div. 2002) (citation omitted). Therefore, we accord the Board's decision a presumption of validity, and the burden is on the challenging party to show that an action was arbitrary, unreasonable or capricious. An administrative agency's decision will only be set aside if there is, "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) (citation omitted).

Applying these standards, we find no basis to disrupt the Board's decision to deny parole and set a sixteen-month FET.3 The decision to deny parole was not arbitrary and capricious and was supported by ample evidence, including Castaneda's incarceration for a multi-crime conviction, insufficient problem resolution, lack of insight into his behavior, minimization of his conduct, and failure to see consequences of his actions. See N.J.A.C. 10A: 71-3.11 (stating "[p]arole decisions shall be based on the aggregate of all pertinent factors, including material supplied by the inmate and reports and material which may be submitted by any persons or agencies which have knowledge of the inmate").

We reject Castaneda's argument that the Board failed to consider relevant mitigating evidence. The Board specifically referenced consideration of Castaneda's infraction free status, average to above average institutional reports and attempts to enroll and participate in programs. These facts alone, however, were found insufficient to establish parole eligibility when weighted against Castaneda's failure to accept responsibility for his action and his failure to sufficiently address his substance abuse problem.

Although there are mitigating factors present in this case, it was within the Board's discretionary power to determine that the considerations in favor of the finding that there is a substantial likelihood Castaneda would commit another crime if released on parole4 outweigh those mitigating considerations.

We find no mistake in this case regarding the question of whether Castaneda should have been released on parole. Where, as here, the decision concerns a prediction as to an inmate's future behavior, a prediction fraught with subjectivity, we accord broad discretion in the Parole Board's decision making process. Puchalski v. N.J. State Parole Bd., 104 N.J. Super. 294, 300 (App. Div.), aff'd, 55 N.J. 113 (1969), cert. denied, 398 U.S. 938, 90 S. Ct. 1841, 26 L. Ed. 2d 270 (1970). The Board's decision properly considered all relevant factors, correctly applied the governing standard, and is rationally supported by sufficient, credible facts in the record.

We also conclude the Board's decision to establish a sixteen-month FET is supported by substantial evidence in the record. The assignment of future parole eligibility dates is governed by N.J.A.C. 10A: 71-3.21. Subsection (a)3 of that regulation provides inmates denied parole who are "serving a sentence . . . for narcotics law violations . . . shall serve 20 additional months." N.J.A.C. 10A:71:71-3.21(a)3. The regulation goes on to permit the term to 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." N.J.A.C. 10A: 71-3.21(c). The panel reduced Castaneda's FET from twenty months to sixteen months. This sixteen-month FET was permissible and was wholly-consistent with the regulations. Applying our limited standard of review, we find no basis to disturb the Board's determination.

A

1 N.J.S.A. 30:4-123.56(b) provides that an FET must be established upon denial of parole.

2 This charge was treated as a 3rd degree offense for purposes of sentencing.

3 N.J.S.A. 30:4-123.56(b) provides that an FET must be established upon denial of parole.

4 N.J.S.A. 30:4-123.53(a) provides: "[a]n adult shall be released on parole at the time of parole eligibility, unless information supplied in the report filed pursuant to [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."