CHRISTOPHER RIGHETTI 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NOT FOR PUBLICATION WITHOUT THE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

CHRISTOPHER RIGHETTI,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

________________________________

July 8, 2016

Submitted May 11, 2016 Decided

Before Judges Kennedy and Gilson.

On appeal from the New Jersey State Parole Board.

Christopher Righetti, appellant pro se.

Robert Lougy, 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 Christopher Righetti appeals from a July 31, 2013 final agency decision of the New Jersey State Parole Board (Board) denying him parole and imposing a 120-month future eligibility term (FET). Appellant is serving a term of life imprisonment for murder and this was his fifth application for parole. We affirm.

On August 31, 1976, appellant, who was then sixteen years of age, raped and murdered a twenty-year-old female victim. The evidence at trial established that appellant approached the victim in a mall parking lot, forced her into her car, drove her to a secluded area, raped her, and then stabbed her four times with a knife.

When apprehended, appellant claimed that he had consensual sex with the victim, the victim then tried to stab him, and he killed the victim in self-defense. The jury rejected appellant's version of events and convicted him of first-degree murder, N.J.S.A. 2A:113-1, -2 (repealed and superseded by N.J.S.A. 2C:11-3), and rape, N.J.S.A. 2A:138-1 (repealed and superseded by N.J.S.A. 2C:14-2).

At the May 20, 1977 sentencing, the rape conviction was merged with the murder conviction, and appellant was sentenced to life in prison. On appeal, we affirmed the conviction and sentence. State v. Righetti (Righetti I), No. A-4046-76 (App. Div. Oct. 25, 1979).

Appellant has applied for and been denied parole on four prior occasions. We affirmed the Board's 2002 and 2004 denials and impositions of a twelve-year FET and an eleven-year FET. Righetti v. N.J. State Parole Bd. (Righetti II), No. A-1669-01 (App. Div. Apr. 9, 2003), certif. denied, 177 N.J. 494 (2003); Righetti v. N.J. State Parole Bd. (Righetti III), No. A-0437-04 (App. Div. July 26, 2005), certif. denied, 186 N.J. 256 (2006).

In 2007, appellant filed a petition for a writ of habeas corpus, which the United States District Court denied. Righetti v. Sherrer (Righetti IV), No. 07-1608 (JAG) (D.N.J. Oct. 28, 2008). Following the denial of his parole in 2010, and the imposition of a twelve-year FET, appellant again appealed. We affirmed the denial of parole, but reversed and remanded for a determination of a new FET. Righetti v. N.J. State Parole Bd. (Righetti V), No. A-2233-10 (App. Div. Nov. 7, 2011). Our decision in Righetti V was based on an amendment to the governing statute (N.J.S.A. 30:4-123.56(a), as amended by L. 2009, c. 330, 6), which prohibited FETs of more than three years. Righetti V, supra, slip op. at 3. The Legislature, however, later repealed that three-year limitation provision. L. 2011, c. 67, 1 (effective May 9, 2011). Thus, there is no longer a three-year limitation on FETs.

Appellant became eligible for parole for the fifth time in October 2011. A two-member Board panel denied parole and referred the establishment of an FET to a three-member panel. The three-member panel then established a 120-month FET, which was outside the administrative guidelines.1 Both the two-member panel and the three-member panel issued written explanations for their decisions, which included consideration of mitigating factors.

Appellant appealed the panel's decision to the full Board. On July 31, 2013, the full Board affirmed the denial of parole and the imposition of a 120-month FET. The Board explained its ruling in a written decision. Appellant now appeals from the full Board's final agency decision.

In his appeal to us, appellant contends

ARGUMENT I - WHEN THE PAROLE BOARD DISREGARDS THE COURT'S RULING(S), THAT IS GROUNDS FOR A REVERSAL IN DENYING APPELLANT DUE PROCESS.

ARGUMENT II DUE TO THE EXTRAORDINARY LENGTHS OF REPEATED FUTURE ELIGIBILITY TERMS OUTSIDE OF THE ADMINISTRATIVE GUIDELINES, WHICH ALLOWS FOR ARBITRARY AND CAPRICIOUS ENFORCEMENT, PUBLIC POLICY CALLS FOR A FULL REVIEW IN VIOLATION OF DUE PROCESS AND OF THE EX-POST-FACTO CLAUSE.

ARGUMENT III FAILURE TO CONSIDER PSYCHOLOGICAL REPORTS IS GROUNDS FOR A REVERSAL VIOLATING DUE PROCESS.

ARGUMENT IV THE BOARD FAILED TO CONSIDER ALL MITIGATING FACTORS IN VIOLATION OF DUE PROCESS.

We accord considerable deference to the Board and its expertise in parole matters. Our standard of review is whether the Board's decision was arbitrary and capricious. Acoli v. N.J. State Parole Bd., 224 N.J. 213, 222-23 (2016). Parole Board 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)). We will not disturb the Board's fact-findings if they "could reasonably have been reached on sufficient credible evidence in the whole record." J.I. v. N.J. State Parole Bd., 441 N.J. Super. 564, 583 (App. Div.) (quoting Hare v. N.J. State Parole Bd., 368 N.J. Super. 175, 179 (App. Div.), certif. denied, 180 N.J. 452 (2004)), certif. granted, 223 N.J. 555 (2015). The burden is on the challenging party to demonstrate that the Board's actions were arbitrary, capricious or unreasonable. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994).

A Board decision to grant or deny parole for crimes committed before August 1997, turns on whether there is a "substantial likelihood" the inmate will commit another crime if released. N.J.S.A. 30:4-123.53(a) (1979), amended by L. 1997, c. 213, 1; N.J.S.A. 30:4-123.56(c) (1979), amended by L. 1997, c. 213, 2; Williams v. N.J. State Parole Bd., 336 N.J. Super. 1, 7 (App. Div.), certif. denied, 165 N.J. 523 (2000); N.J.A.C. 10A:71-3.10(a). The Board must consider the enumerated factors in N.J.A.C. 10A:71-3.11(b)(1)-(23) in making its decision. The Board, however, is not required to consider each and every factor; rather, it should consider those applicable to each case. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 561 (App. Div. 2002).

Having reviewed the record in light of these well-established standards, including the material in the confidential appendix, we affirm the Board's denial of parole. Appellant's parole eligibility was evaluated by the full Board. The Board considered the relevant factors enumerated in N.J.A.C. 10A:71-3.11(b), and adopted the determinations made by the two-member panel which found that there was a substantial likelihood that appellant would commit a new crime if released. We find nothing arbitrary or capricious about that decision because it is supported by sufficient credible evidence in the record.

We likewise are satisfied that the 120-month FET imposed by the Board is neither arbitrary nor capricious and, again, is supported by the credible evidence in the record. Following the denial of parole, the Board must establish an FET. N.J.A.C. 10A:71-3.18(a)(2). When parole is denied for an inmate serving a life sentence, the standard eligibility term is twenty-seven months. N.J.A.C. 10A:71-3.21(a)(1). The Board, however, may exceed the FET guidelines if it determines that the presumption of twenty-seven months is "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).

Here, the full Board adopted the determination of the three-member Board panel to establish a 120-month FET and relied upon the thirteen-page decision issued by the three-member panel. In that decision, the Board detailed the particular reasons for establishing an FET outside the administrative guidelines and considered the relevant and applicable aggravating and mitigating factors. See N.J.A.C. 10A:71-3.21(d) (stating that the Board applies the factors enumerated in N.J.A.C. 10A:71-3.11 for FET determinations differing from the guidelines). The 120-month FET, while lengthy, will be substantially less than ten years because it will be reduced by applicable commutation, work and custody credits. Again, we find nothing arbitrary or capricious about the decision because it is supported by sufficient credible evidence in the record.

Appellant makes four arguments in challenging the Board's decision. First, appellant argues that the Board disregarded this court's ruling in Righetti V. In Righetti V, we reversed a twelve-year FET because at the time that it was imposed, the governing statute limited FETs to three years. That statute was repealed in 2011, L. 2011, c. 67, 1, and the currently governing statute allows FETs longer than three years. N.J.S.A. 30:4-123.56(c). Consequently, when the three-member panel and the full Board imposed a 120-month FET, they were acting within their statutory authority.

Second, appellant argues that the Board violated the Ex Post Facto Clause, U.S. Const. art. I, 10, cl. 1; N.J. Const. art. IV; 7, 3, when it applied the "substantial likelihood" of recidivism standard under the Parole Act of 1979 because he was sentenced in 1977 for a crime committed in 1976. Similarly, he argues the Board violated the Ex Post Facto Clause when it examined his whole record pursuant to N.J.S.A. 30:4-123.56(c), as amended by L. 1997, c. 213, 2, to make its parole determination, rather than only "new information," which was the standard prior to the 1997 amendment. Our court, as well as the United States District Court, have previously addressed and rejected these ex post facto arguments made by appellant. Righetti III, supra, slip op. at 10-12; Righetti IV, supra, slip op. at 14-21. Moreover, these Ex Post Facto Clause arguments have also been rejected in other New Jersey and federal cases. See, e.g., Trantino v. N.J. State Parole Bd., 331 N.J. Super. 577, 610-11 (App. Div. 2000) (holding the use of the 1997 amendment to the Parole Act and its removal of the "new information" limitation did not violate the Ex Post Facto Clause), aff'd in part, modified in part, and remanded, 166 N.J. 113 (2001); Royster v. Fauver, 775 F.2d 527, 533-35 (3d Cir. 1985) (holding that the 1979 Parole Act did not violate the prohibition against Ex Post Facto laws when applied to an offender sentenced under the Parole Act of 1948).

Third, appellant argues that the Board failed to consider psychological reports in making its determination on his parole eligibility and FET. A review of the full Board's determination makes clear that the Board considered the confidential psychologist report. Indeed, the record establishes that the panels and the full Board considered the "aggregate of all pertinent factors," N.J.A.C. 10A:71-3.11(a), in denying appellant's parole and in establishing the FET.

Finally, appellant argues that the Board failed to consider all mitigating factors. As we have already discussed, the Board did consider various mitigating factors and, therefore, we also reject this argument.

Affirmed.

1 Initially, there was a discrepancy concerning whether the FET was for 120 months or 72 months. The three-member panel issued an amended decision clarifying that the FET was for 120 months.