JEFFREY CAMERON 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NOT FOR PUBLICATION WITHOUT THE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

JEFFREY CAMERON,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

________________________________

May 14, 2015

Submitted November 10, 2014 Decided

Before Judges St. John and Rothstadt.

On appeal from New Jersey State Parole

Board.

Jeffrey Cameron, appellant pro se.

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

PER CURIAM

Appellant, Jeffrey Cameron, appeals from a final agency decision of the New Jersey State Parole Board denying him parole, for the third time, and imposing a fifty-four month future eligibility term (FET). Appellant presents the following arguments for our consideration

POINT I

THE PUNITIVE ASPECT OF THE SENTENCE HAD BEEN SERVED.

POINT II

POSSIBLE BIAS OF A BOARD MEMBER.

POINT III

THE NEW JERSEY STATE PAROLE BOARD USED AN ELEMENT OF THE CRIME AS A REASON TO DENY PAROLE.

POINT IV

APPELLANT REDUCED SUBSTANTIAL LIKELIHOOD OF RECIDIVISM.

POINT V

[APPELLANT'S] MEDICAL CONDITION WAS NOT TRULY CONSIDERED.

In response, the Board argues we "should disregard appellant's argument regarding a biased board member because this argument was not raised below" and the Board's decision should be affirmed because it is "supported by sufficient credible evidence in the record."

We have considered these arguments in our review of the record and the applicable legal principles. We affirm.

We discern the following facts and procedural history from the record on appeal.

A jury convicted appellant in 1984 of committing first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1). After the court granted the State's motion to find appellant "extended term" eligible, N.J.S.A. 2C:44-3, it sentenced him to life imprisonment and required him to serve twenty-five years before becoming eligible for parole. The charges arose from appellant fatally shooting his former girlfriend in the chest that, according to eyewitness testimony, followed her rebuffing his physical advances while at a park. According to appellant, his shooting of his girlfriend was an unintended act that was the result of his foolishly playing "Russian roulette" while believing the gun was not loaded. He described the event as an unintentional shooting when he was twenty-one years old and after he was "drinking and smoking PCP in a park, and playing with a gun." He committed the crime while on parole from an earlier period of incarceration.

After appellant completed his mandatory minimum period of imprisonment, he sought parole, which the Board denied. The Board also established a one hundred twenty month FET. In his subsequent appeal, we affirmed the denial of parole, but remanded for imposition of an FET no greater than thirty-six months, based on the 2009 amendment to N.J.S.A. 30:4-123.56(a), which placed a three-year cap on FETs. L. 2009, c. 330, eff. Aug. 1, 2010. We also determined 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 v. N.J. State Parole Bd., No. A-0349-09 (App. Div. October 21, 2010) (Cameron I) (slip op. at 5-7). The Board then imposed a thirty-six month FET and appellant appealed. We affirmed the Board's decision. Cameron v. N.J. State Parole Bd., No. A-4939-10 (App. Div. April 9, 2013) (Cameron II) (slip op. at 1). In his appeal from that determination, appellant argued: "(1) the punitive aspect of the sentence has been served; (2) possible bias of a Board member; (3) the Board is disregarding and circumventing a prior appellate decision; (4) appellant reduced substantial likelihood of recidivism; and (5) appellant's medical condition was not truly considered." Id. at 6. We rejected appellant's arguments, as we were satisfied that there was sufficient credible evidence in the record to support the Parole Board's finding that there was a substantial likelihood appellant would commit another crime if released on parole.

While our decision was pending, appellant was again considered by the Board for parole. His application was first considered by a two-member Board panel, which ultimately denied parole on August 3, 2012, and referred the matter to a three-member Board panel for determination of an FET. In a comprehensive written decision, the three-member panel explained its reasons for the imposition of a fifty-four month FET. It specifically found that despite his twenty-seven years of incarceration, appellant was "still unable or unwilling to accept full [and complete] responsibility" for his crime, and cited to appellant's reference to "Russian Roulette" in his explanation for what he did. Also, the panel believed appellant needed more progress in resolving his past history of "excessive drinking of alcohol and [his] past violent/angry behavior." In addition, the members were also concerned about appellant's projecting blame for his actions on his "upbringing . . . family and the prison environment." Further, the panel noted appellant had not provided a plan for how he would "avoid resorting to [past] behaviors if again released to the street." Finally, the panel stated it relied on the contents of confidential documents which "play[ed] a significant role in [its] decision." The confidential information included a psychologist's Needs Assessment indicating a "High" prognosis "for defendant re-offending."1

In response to appellant's appeal from both panels' determinations, the Board affirmed the decision to deny parole and impose the fifty-four month FET. In its written final decision, the Board explained

Based on your responses to questions posed by the Board Panel at the time of the hearing, the Board Panel appropriately determined that you exhibit insufficient problem resolution, specifically, that you lack insight into your criminal behavior and minimize your conduct. With regard to your specific contention that you are not the same person you were thirty (30) years ago and you would never go back to drinking, the Board finds that you have been involved in treatment, but have gained little insight from these programs. The Board further finds that your program participation and rehabilitative efforts are a matter of record. This information was included in the Case Summary prepared during your initial hearing and was considered by the Board Panel. The Board finds that the Board Panel noted as mitigating factors, your participation in programs (MRT, Anger Management, Behavior Modification, AA, and SEALL) and participation in programs specific to behavior. However, program participation is one factor of many considered by the Board Panel and is not the only indicator of rehabilitation. Further, the Board finds that your program participation does not negate the fact that you still lack insight into your criminal behavior and minimize your conduct. In addition, although it appears that you have made some progress, your criminal behavior is deeply rooted as evidenced by your very extensive criminal record. This contradicts your assertion of sufficient rehabilitation. The Board notes that while acknowledging the serious consequences of your criminal activity and substance abuse is a step towards rehabilitation, it represents only an initial effort at rehabilitation. The Board further finds that your admission of guilt may help you to develop insight into the causes of your criminal behavior, but does not equate to a change in your behavior. Therefore, in assessing your case, the Board concurs with the determination of the Board Panel that, based on the aggregate of all relevant factors, there is a substantial likelihood that you will commit another crime if released on parole at this time . . . .

In your case, the Board finds that the Board Panel appropriately considered your institutional disciplinary charge of September 9, 2009. However, the Board Panel also noted in mitigation that you have had favorable institution adjustment and that prior to the September 2, 2009 charge, you had been infraction free for eleven (11) years.

. . . .

[T]he Board finds that the Board Panel has considered the aggregate of information pursuant to N.J.A.C. 10A:71-3.11 and fully documented and supported its decision pursuant to N.J.A.C. 10a:71-3.18(f). In assessing your case, the Board concurs with the determination of the two-member Board Panel that a preponderance of evidence indicates that there is a substantial likelihood that you would commit a crime if released on parole at this time. The Board also concurs with the determination of the two-member Board Panel that a future eligibility term established pursuant to N.J.A.C. 10A:71-3.21(a), (b) and (c) is clearly inappropriate due to your lack of satisfactory progress in reducing the likelihood of future criminal behavior and the determination to refer your case to the third Board member for the establishment of a future eligibility term. Further, the Board concurs with the determination of the three-member Board Panel to establish a future eligibility term pursuant to N.J.A.C. 10a:71-3.21(d) and, pursuant to N.J.A.C.10a:72-3.21(d)(4), the particular reasons for the establishment of said term as set forth in the Notice of Decision.

This appeal followed.

Our review of the Board's decision is limited. The Board's decisions are highly "individualized discretionary appraisals." Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (Trantino V) (citation and internal quotation marks omitted). Although there is an "inherent difficulty in gauging whether a parole determination constitutes an abuse of discretion," the judicial review of Parole Board determinations "does not engender a more exacting standard of judicial review than that applicable to other administrative agency decisions." Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998) (Trantino IV), modified in part, aff'd in part, 166 N.J. 113 (2001). "Parole Board decisions should not be reversed . . . unless found to be arbitrary or an abuse of discretion." Ibid. (citation omitted); Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971); State v. Lavelle, 54 N.J. 315, 322 (1969); Pazden v. N.J. State Parole Bd., 374 N.J. Super. 356, 366 (App. Div. 2005). While we do owe deference to an administrative agency, we do not rubber stamp its decisions. In re Taylor, 158 N.J. 644, 657 (1999).

Because the offense here was committed in 1983, the standard applicable to the parole determination is contained in an earlier version of N.J.S.A. 30:4-123.53, which provided that the inmate shall be released unless "by a preponderance of the evidence . . . there is a substantial likelihood that the inmate will commit a crime . . . if released on parole . . . ." Additionally, "the punitive aspects of a sentence may no longer be considered as an independent ground for denying parole." In re Application of Trantino, 89 N.J. 347, 372 (1982) (Trantino II). Rather, the seriousness of the crime may be weighed "as an element in determining whether the offender's punishment has been adequate to insure his individual progress toward rehabilitation," insofar as it reflects on his or her likelihood to recidivate. Id. at 373-74. "[T]he Board [must] focus its attention squarely on the likelihood of recidivism." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 565 (App. Div. 2002). The Board's regulations require that the Board and its panels consider a variety of factors in determining whether an inmate should be paroled and, if not, the length of his or her FET. N.J.A.C. 10A:71-3.11 (b).

We conclude the Board and its panels considered the applicable factors listed in the regulation and that there was 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. The additional proofs accruing since the Board's last review, such as appellant remaining infraction free since 2009, were insufficient to overcome the significant evidence of likely recidivism. Most important was the Board's concern regarding appellant's failure to take full responsibility for his criminal conduct, his lack of insight regarding his behavior and his need for substance abuse, treatment and behavioral counseling. As we previously observed, "it was within the Board's discretionary power to determine that the considerations in favor of the finding that there is a substantial likelihood appellant would commit another crime if released on parole outweigh[ed any] mitigating considerations." Cameron II, supra, slip op. at 10. Therefore, we conclude that the Board did not abuse its discretion in denying appellant's application for release on parole.

Similarly, we find no reason to disturb the Board's affirmance of its three-member panel's fixing of a fifty-four month FET. The Board's schedule of FETs for adult inmates is set forth in N.J.A.C. 10A:71-3.21. An inmate who is "serving a sentence for murder, manslaughter, aggravated sexual assault or kidnapping or serving any minimum-maximum or specific sentence in excess of 14 years for a crime not otherwise assigned pursuant to this section shall serve 27 additional months." N.J.A.C. 10A:71-3.21(a)(1). The FET 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." N.J.A.C. 10A:71-3.21(c). Although a panel is authorized to impose a lengthier FET, it may do so only if it determines that the FET established in accordance with the schedule is "clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior." N.J.A.C. 10A:71-3.21(d). As a result of the 2011 amendment to N.J.S.A. 30:4-123.56, the three year cap is no longer applicable. L. 2011, c. 67, 1, eff. May 9, 2011.

In establishing the FET, the three-member panel appropriately considered the factors enumerated in N.J.A.C. 10A:71-3.11, including appellant's record, the Confidential Appendix, and any pertinent aggravating and mitigating factors. There was sufficient credible evidence in the record for the panel to determine appellant lacked satisfactory progress in reducing the likelihood of future criminal behavior and to impose the extended FET. We conclude the Board's decision did not violate legislative policy or constitute an abuse of discretion.

To the extent we have not addressed any of appellant's remaining arguments, we find them to be without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), or appellant never raised them before the Board. Nieder v Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Affirmed.

1 This was the same prognosis that existed in the last application as well. Id. at 10 n. 2.