JERSEY KEVIN STOUT v. NEW JERSEY STATE PAROLE BOARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-3623-14T1

KEVIN STOUT,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

_______________________________

November 15, 2016

Submitted September 28, 2016 Decided

Before Judges Alvarez and Accurso.

On appeal from the New Jersey State Parole Board.

Kevin Stout, appellant pro se.

Christopher S. Porrino, Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the briefs).

PER CURIAM

In these back-to-back cases, which we have consolidated for purposes of this opinion, Kevin Stout appeals from the July 30, 2014 final decision of the New Jersey State Parole Board, on second remand from this court, establishing a future parole eligibility term (FET) of 120 months (A-0034-14), and from the Board's February 25, 2015 final decision denying parole and imposing a thirty-six-month FET (A-3623-14). Because the FET established by the July 30, 2014 decision has already expired, we dismiss the appeal in A-0034-14 as moot.

The thirty-six-month FET established by the February 25, 2015 decision has likewise since expired on December 3, 2015. We are advised that last month the Board again denied Stout parole and established a sixty-month FET, which is not yet final pending administrative appeal.

Because effective review of these matters is obviously being thwarted by this repeating cycle, we decline to dismiss the appeal in A-3623-14 at this time, despite it also having been arguably rendered moot. Instead, we will hold this matter in abeyance pending the Board's final decision on the sixty-month FET which began to run on December 3, 2015. When a timely notice of appeal is filed from that final decision, we will accelerate the matter and consider it together with the appeal in A-3623-14 with the aim of providing meaningful appellate review of these cases in a live controversy. Our reasons follow.

Stout first became eligible for parole on the life sentence he is serving in 2009, on the expiration of his twenty-five-year parole ineligibility term. Stout v. N.J. State Parole Bd., No. A-5064-09 (App. Div. June 7, 2011) (slip op. at 2-3). The Board denied him parole and set a 180-month FET applying the pre-1997 version of N.J.S.A. 30:4-123.53a. Id. at 5; see Williams v. N.J. State Parole Bd., 336 N.J. Super. 1, 7 (App. Div.), certif. denied, 165 N.J. 523 (2000) (holding parole decisions for inmates who are serving sentences for crimes committed before August 18, 1997, are governed by the parole standards set forth in N.J.S.A. 30:4-123.53a prior to its August 18, 1997 amendment).

Applying the deferential standard of review we employ for the highly "individualized discretionary appraisals" made by the Parole Board, Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (Trantino VI), we affirmed the Board's determination that parole should be denied due to the "substantial likelihood that [Stout] will commit a crime if released on parole at this time." Stout, supra, A-5064-09, slip op. 8. We could not, however, affirm the imposition of a fifteen-year FET, convinced as we were that the Board's determination "went so far wide of the mark that a mistake must have been made." Id. at 7-8 (quoting N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988)) (internal quotation omitted).

The presumptive FET term on a sentence for murder is twenty-seven months (two years and three months). N.J.A.C. 10A:71-3.21(a)(1). The FET the Board initially established for Stout was fifteen years (180 months). We concluded "an FET nearly seven times the presumptive term" was "manifestly excessive, even in light of the confidential materials that were available to the three-member panel and Board," which we reviewed. Stout, supra, A-5064-09, slip op. at 10. We further found that "the establishment of such an inordinately lengthy FET did not properly account for the temporal remoteness of Stout's criminality and prohibited acts, the last occurring in 1997 and 2000 respectively." Ibid. Accordingly, we remanded the matter to the Board "to impose an appropriate term in conformity with law." Id. at 11.

Our opinion was issued in June 2011. A year passed before the Board issued a decision on remand. Further, notwithstanding our clear direction, the Board on remand imposed exactly the same fifteen-year FET. Stout v. N.J. State Parole Bd., No. A-5695-11 (App. Div. Jan. 7, 2014) (slip op. at 3). When the case returned to us in December 2013, we again reversed the FET, reminding the Board that although it is free to disagree with our decisions, it is not at liberty to disregard them. Id. at 7 (citing Kosmin v. N.J. State Parole Bd., 363 N.J. Super. 28, 40 (App. Div. 2003)).

A three-member panel of the Board reconsidered the fifteen-year FET for the second time at our direction in February 2014, and reduced the FET by five years (sixty months). Upon application of work and minimum custody credits, the now ten-year FET, which had begun to run in 2009, was scheduled to expire on July 20, 2014. On July 30, 2014, the full Board affirmed the five-year reduction of Stout's FET, which, by that time, had already expired. That is the decision before us on A-0034-14.

Because Stout was already again eligible for parole at the time the Board rendered its final decision on remand, a two-member Board panel considered his case again on July 25, 2014, using an updated confidential psychological assessment. The members split, one voting that Stout be paroled and the other that parole be denied. Accordingly, pursuant to N.J.A.C. 10A:71-1.3(e), a third member was added, and on September 24, 2014, the now three-member panel voted to deny parole and set a thirty-six-month FET. Stout appealed its decision to the full Board, which affirmed the panel's decision on February 25, 2015. That is the decision before us on A-3623-14.

We see no purpose in reviewing, at this point in time, the Board's July 30, 2014 final decision on second remand to reduce Stout's FET from fifteen years to ten. We affirmed the Board's decision to deny Stout parole when we first reviewed the matter in 2011. Stout, supra, A-5064-09, slip op. at 8. Thus the only issue on remand was the length of the FET imposed. Not only has Stout served out that reduced ten-year FET, he has also served out the three-year FET the Board subsequently imposed on expiration of that ten-year term. As there is no effective relief we can render at this point regarding the FET we remanded to the Board in 2011 and 2014, that matter is moot and will be dismissed accordingly. See Redd v. Bowman, 223 N.J. 87, 104 (2015) (explaining that an "issue is 'moot when our decision . . . , when rendered, can have no practical effect on the existing controversy'") (internal quotation omitted).

Although the same point could at least arguably be made as to the Board's February 25, 2015 final decision, which we consider in A-3623-14, we decline to similarly dismiss it. We do not dismiss it because even though the three-year FET has expired, we have yet to consider whether the Board's decision to deny Stout parole should be affirmed.

Stout, by way of motion, asked us to take judicial notice of the Board's July 20, 2016 decision to again deny him parole and to refer his case for the establishment of an FET in excess of the twenty-seven-month presumptive term. Although we declined to do so, his motion caused us to ask counsel for the Parole Board the status of the pending matter.1 Counsel advised that the Board on September 15, 2016 established a five-year (sixty-month) FET, which began to run on December 3, 2015. Although that decision is subject to an internal appeal and not yet final, the deputy advises that Stout's current parole eligibility date is June 23, 2019, subject to work and minimum custody credits earned and awarded on a monthly basis which can reduce his sentence by eleven days each month.

It is obvious to us, that given the time necessary to perfect both an internal appeal to the Parole Board and one to this court, we could continue in a cycle which has now thwarted effective appellate review of this case for several years. We will not allow that to continue.

Accordingly, we exercise our discretion to defer decision in A-3623-14 until notice of appeal is filed from a final decision in the matter currently pending before the Parole Board. Counsel for the Board is to advise by letter of the Parole Board's final decision and of the filing of a notice of appeal in that matter. We will then issue a scheduling order accelerating the case for consideration with this appeal during the current term. We also direct that counsel for the Parole Board keep us apprised of any delay in the internal appeal process that might affect our ability to consider both matters, as we intend, in this term. In the event that no appeal is taken from the final decision of the Parole Board, counsel for the Board is to advise of that fact so that we may resolve the pending appeal in A-3623-14.

We dismiss the appeal in A-0034-14 as moot. We retain jurisdiction and defer disposition of the appeal in A-3623-14 for consolidation with the matter presently pending before the Board upon the filing of a notice of appeal in that case.

1 In light of our disposition of these appeals, we deny Stout's motions for reconsideration of our decision on those motions.