ANTHONY KIRKLAND 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NOT FOR PUBLICATION WITHOUT THE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

ANTHONY KIRKLAND,

Appellant,

v.

NEW JERSEY STATE

PAROLE BOARD,

Respondent.

______________________

July 28, 2015

Submitted June 23, 2015 Decided

Before Judges Alvarez and Simonelli.

On appeal from the New Jersey State Parole Board.

Anthony Kirkland, appellant pro se.

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

PER CURIAM

Appellant Anthony Kirkland, an inmate of South Woods State Prison, appeals from the October 30, 2013 final agency decision of the State Parole Board (Board), which affirmed the decision of the three-member Board Panel to deny parole and impose a seventy-two-month future eligibility term (FET). We affirm.

Following a trial, appellant was convicted of second-degree conspiracy to commit racketeering, N.J.S.A. 2C:41-2(d); first-degree racketeering, N.J.S.A. 2C:41-2(c); first- and second-degree money laundering, N.J.S.A. 2C:21-25(b); third-degree promoting prostitution, N.J.S.A. 2C:34-1(b)(2); two counts of second-degree theft by deception, N.J.S.A. 2C:20-4; second-degree conspiracy, N.J.S.A. 2C:21-25; and third-degree falsifying records, N.J.S.A. 2C:21-4(b). On November 14, 2003, he was sentenced to an aggregate thirty-seven-year term of imprisonment.

Appellant became eligible for parole on June 4, 2012. A two-member panel denied parole based on: appellant's prior criminal record;1 nature of criminal record increasingly serious; presently incarcerated for a multi-crime conviction; prior opportunity on community probation failed to deter criminal behavior; institutional infractions;2 insufficient problem resolution, including a lack of insight into criminal behavior and lack of remorse, as demonstrated by the panel interview, documentation in the case file and confidential material/professional report; and the results of a risk assessment evaluation which deemed that Kirkland was a medium risk to recidivate.

The panel also considered mitigating factors, such as appellant's participation in institutional programs, his average to above-average institutional reports, his attempts to enroll and participate in programs though he was not admitted, and his achieving/maintaining minimum custody status. The panel denied parole and referred the matter to a three-member panel to establish a FET in excess of the administrative guidelines.

In a comprehensive May 2, 2012 written decision, the three-member panel imposed a seventy-two month FET, but mistakenly indicated the FET would be reduced by applicable credits.3 The panel considered the same mitigating factors the two-member panel considered as well as appellant's letter of mitigation.

Appellant administratively appealed the decisions of the two- and three-member panels to the Board. In a comprehensive November 28, 2012 written final agency decision, the Board affirmed the panels' decisions. The Board rejected appellant's contention that the two panels failed to consider material facts, failed to document that a preponderance of the evidence indicated that there was a reasonable expectation that he would violate conditions of parole if released, and that the decisions were contrary to written Board policy or procedure. The Board did not address the statement made by the three-member panel that the FET established in appellant's case would be reduced by applicable credits.

Appellant filed an appeal with this court. While the appeal was pending, we granted the Board's motion to remand for it to reconsider whether the FET should be reduced by credits. In a September 25, 2013 written decision, the three-member panel amended its May 2, 2012 decision and removed the reference to the application of credits. In a comprehensive October 30, 2013 final agency decision, the Board affirmed the three-member panel's amended decision. This appeal followed.

On appeal, appellant raises the following contentions

POINT ONE

APPELLANT TAKES FULL RESPONSIBILITY FOR THE CRIMES THAT HE HAS COMMITTED.

POINT TWO

THE RESPONDENT ARBITRARILY DENIED APPELLANT PAROLE BECAUSE IT FOCUSED ON HIS CRIMINAL HISTORY AND INSTITUTIONAL INFRACTIONS INSTEAD OF WHAT HE IS TODAY. THIS VIOLATES APPELLANT'S UNITED STATES CONSTITUTION, FOURTEENTH AMENDMENT, DUE PROCESS OF LAW RIGHT OF THE PAROLE STANDARD ENUNCIATED BY THE UNITED STATES SUPREME COURT IN GREENHOLTZ V. NEBRASKA, INFRA.

POINT THREE

THE RESPONDENT SOUGHT TO GET APPELLANT TO ADMIT TO FACTS THAT WERE NOT ADJUDICATED AT TRIAL CONTRARY TO KOSMIN V. N.J. STATE PAROLE BOARD IN VIOLATION OF THE LEGISLATIVE INTENT OF N.J.S.A. 30:4-123.53a AND N.J.S.A. 30:4-123.55c; THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND [ART.] I, 1, AND [ART.] V, II, 2 OF THE NEW JERSEY CONSTITUTION.

POINT FOUR

THE RESPONDENT'S FINDING THAT APPELLANT WAS INVOLVED IN "NARCOTICS" WHILE IN THE COUNTY JAIL IS MISLEADING AND NOT SUPPORTED BY CREDIBLE EVIDENCE IN THE RECORD IN VIOLATION OF THE LEGISLATIVE INTENT OF N.J.S.A. 30:4-123.53a AND N.J.S.A. 30:4-123.55c; THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND [ART.] I, 1, AND [ART.] V, II, 2 OF THE NEW JERSEY CONSTITUTION.

POINT FIVE

THE RESPONDENT FAILED TO CONSIDER RELEVANT, FAVORABLE EVIDENCE IN THE RECORD THAT APPELLANT HAS A LSI-R SCORE OF [TWENTY EIGHT] IN VIOLATION OF THE LEGISLATIVE INTENT OF N.J.S.A. 30:4-123.53a AND N.J.S.A. 30:4-123.55c; THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND [ART.] I, 1, AND [ART.] V, II, 2 OF THE NEW JERSEY CONSTITUTION.

POINT SIX

THE ESTABLISHMENT OF THE [SEVENTY-TWO] MONTH FET, WHICH IS 2.67 TIMES GREATER THAN THE [TWENTY-SEVEN] MONTH PRESUMPTIVE, VIOLATES LEGISLATIVE POLICY IN VIOLATION OF THE LEGISLATIVE INTENT OF N.J.S.A. 30:4-123.53a AND N.J.S.A. 30:4-123.55c; THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND [ART.] I, 1, AND [ART.] V, II, 2 OF THE NEW JERSEY CONSTITUTION.

POINT SEVEN

2 N.J.A.C. 10A:71-3.21(d) IS VAGUE AND MUST BE VOIDED BECAUSE IT ALLOWED THE ESTABLISHMENT OF APPELLANT'S [SEVENTY-TWO] MONTH FET BASED ON THE RESPONDENT['S] THREE-MEMBER PANEL'S INTERPRETATION OF [N.J.A.C. 10A:71-3.21(d)] IN VIOLATION OF PAZDEN V. N.J. STATE PAROLE BOARD AND THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND [ART.] I, 1, AND [ART.] V, II, 2 OF THE NEW JERSEY CONSTITUTION.

POINT EIGHT

WHEN ESTABLISHING THE LONG-DURATION [SEVENTY-TWO] MONTH FET, THE RESPONDENT['S] THREE-MEMBER PANEL ARBITRARILY FAILED TO FOLLOW LEGISLATIVE POLICIES IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND [ART.] I, 1, AND [ART.] V, II, 2 OF THE NEW JERSEY CONSTITUTION.

POINT NINE

THE RESPONDENT['S] TWO[-] AND THREE-MEMBER PANEL[S'] FINDINGS THAT APPELLANT FAILED TO COMPLETE PROBATION IS NOT SUPPORTED BY CREDIBLE EVIDENCE IN THE RECORD IN VIOLATION OF THE LEGISLATIVE INTENT OF N.J.S.A. 30:4-123.53a AND N.J.S.A. 30:4-123.55c; THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND [ART.] I, 1, AND [ART.] V, II, 2 OF THE NEW JERSEY CONSTITUTION.

POINT TEN

2 THE 1997 AMENDMENTS TO THE PAROLE ACT OF 1979 AUTHORIZING THE TWO[-] AND THREE-MEMBER PANELS TO PROTECT PUBLIC SAFETY AND DETERMINE [THE] EXTENT OF PUNISHMENT WHEN DENYING APPELLANT PAROLE VIOLATES THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

POINT ELEVEN

THE NEW JERSEY STATE PAROLE BOARD[,] IN VIOLATION OF APPELLANT'S DUE PROCESS [RIGHTS] OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND [ART.] V, II, 2 OF THE NEW JERSEY CONSTITUTION, WITHHELD CONFIDENTIAL MATERIALS THAT WERE SUBSTANTIALLY CRITICAL IN [ITS] DECISION TO DENY PAROLE AND THE IMPOSITION OF THE SEVENTY[-TWO] (72) MONTH [FET]. (NOT RAISED BELOW).

We have considered these contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E). We also conclude that there is sufficient credible evidence in the record as a whole supporting the Board's decision. R. 2:11-3(e)(1)(D). We add only the following brief comments.

The Supreme Court has held that the Board's "decisions are highly 'individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001). "Accordingly, the Board 'has broad but not unlimited discretionary powers,' and its determinations 'are always judicially reviewable for arbitrariness.'" Ibid. The Board's decisions "depend[] on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals by the Board members based upon their experience with the difficult and sensitive task of evaluating the advisability of parole release." Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979). As the Court observed, parole boards should focus on "'what a man is and what he may become rather than simply what he has done.'" Ibid.

In examining the record in light of the arguments raised, we are satisfied that the Board adhered to these principles and its own guidelines in rendering the final decision. The Board's findings were based "'on sufficient credible evidence in the whole record[,]'" Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24 (1998) (quoting N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988)), and are entitled to our deference. In the Board's application of those principles to the facts, we find nothing arbitrary, capricious, or unreasonable in its determination to deny parole and establish a seventy-two-month FET.

Affirmed.

1 As an adult, appellant also was convicted of obstruction of justice and threatening violence. He was sentenced to probation for the latter conviction.

2 While incarcerated, appellant was found guilty of committing prohibited acts *.203, possession or introduction of any prohibited substance such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff; *.204, use of any prohibited substance such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff; *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility; and .210, possession of anything not authorized for retention or receipt by an inmate or not issued to him through regular correctional facility channels. N.J.A.C. 10A:4-4.1.

3 An FET for an inmate serving a sentence for a crime committed prior to August 19, 1997 is reduced by credits. For an inmate who committed a crime on or after August 19, 1997, such as appellant, the FET is not reduced by credits. See N.J.A.C. 10A:71-3.2(i); see also N.J.S.A. 30:4-123.56(b).