ANTHONY BOONE 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NOT FOR PUBLICATION WITHOUT THE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 only binding 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

ANTHONY BOONE,

Appellant,

v.

NEW JERSEY STATE

PAROLE BOARD,

Respondent.

___________________________

October 14, 2016

Submitted September 19, 2016 Decided

Before Judges Nugent and Currier.

On appeal from the New Jersey State Parole Board.

Anthony Boone, appellant pro se.

Christopher S. Porrino, Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Gregory R. Bueno, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Anthony Boone appeals the final administrative action of the New Jersey Parole Board (Board), denying parole and setting a 120-month future eligibility term (FET). We affirm.

Defendant is serving a life sentence for convictions of aggravated manslaughter and other offenses. After he became eligible for parole, defendant appeared before a hearing officer in November 2012 who referred the matter to a two-member Board panel for a hearing. On January 25, 2013, the panel denied parole based on Boone's: (1) prior criminal record; (2) incarceration for multi-crime convictions; (3) prior probation terms having failed to deter his criminal behavior; (4) history of thirty-one infractions while incarcerated; and (5) lack of insight into his criminal behavior. The panel found "[defendant] shows no remorse or understanding for his violent criminal behavior . . . . He is still dangerous and needs more time and programming to work on his issues."

As the two-member panel determined that establishing an FET within the Board's presumptive schedule would be inappropriate due to defendant's lack of satisfactory progress in reducing the likelihood of future criminal behavior, the case was referred to a three-member Board panel for review and establishment of the FET.

The three-member panel reiterated the findings of the prior panel as reasons for its denial of parole and set a 120 month FET. In its comprehensive written decision, the panel wrote

Perhaps even more troubling to the Board is that your lack of insight into the true motivations behind your aggressive and violent behavior is demonstrated in the numerous violent (weapons related) and assaultive charges you have incurred since being incarcerated. It is clear to see that the history of violent behavior that has occurred in your case, while as a member of society and as an inmate, reflects an individual who is hostile and aggressive . . . . While you can attempt to place a portion of the blame for your actions on others, the only individual responsible for your maladaptive institutional behavior is yourself. Unfortunately, you do not attest to this. This leads the Board panel to believe that if released at this time, your adversarial personality aspects will only continue.

In conclusion, based upon the statements that you made at your Board panel hearing, and your overall institutional record, it is clear that you are incapable or simply resistant in changing your thought process as it relates to your past violent and continued anti-social behavior . . . . Twenty-two (22) years after your violent actions led to the killing of one victim and the wounding of another, and in spite of your continued incarceration since that point, you are disinclined in changing your violent and aggressive criminal mindset and you offer little in the way of insight into why you have continued to commit infractions which mirror the aggression and your refusal to yield demonstrated in the offense for which you are presently incarcerated.

Following an administrative appeal, the full Board issued a final agency decision on April 30, 2014, affirming the denial of parole and establishment of a 120 month FET. The Board concurred with the two-member 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."

Defendant presents the following points on appeal

POINT I: THE PAROLE BOARD KNOWINGLY PURPOSELY AND INTENTIONALLY DENIED THE APPELLANT A PAROLE HEARING WITHIN THIS PAROLE ELIGIBILITY DATE UNDER THE FALSE AND FABRICATED CLAIMS THAT THE APPELLANT REFUSED TO COOPERATE WITH THE PAROLE PROCESS.

POINT TWO: THE PAROLE BOARD KNOWINGLY PURPOSELY AND INTENTIONALLY DENIED THE APPELLANT HIS RIGHT TO BE PRESENT AND PRESENT EVIDENCE ON HIS OWN BEHALF DURING THE AMENDMENTS OF BOTH HIS PAROLE CASE ASSESSMENT HEARING AND INITIAL PAROLE HEARING.

POINT THREE: THE APPELLANT WAS DENIED HIS DUE PROCESS AND EQUAL PROTECTION TO A[] FAIR AND IMPARTIAL PAROLE HEARING DUE TO NUMEROUS REASONS.

POINT FOUR: THE PAROLE BOARD HAS KNOWINGLY AND CONTINU[ALL]Y RELIED ON INSTITUTIONAL INFRACTIONS AS A CAUSE TO DENY PAROLE AND JUSTIFY THAT AN INDIVIDUAL[] HAS FAILED TO COOPERATE IN HIS OR HER OWN REHABILITATION OR THAT THERE IS REASONABLE EXPECTATION THAT THE INMATE WILL VIOLATE THE CONDITIONS OF PAROLE . . . IF RELEASE[D] AT THAT TIME. WHEN INSTITUTIONAL INFRACTIONS SHOULD NOT BE ALLOWED TO CARRY SUCH WEIGHT TO DENY LIBERTY.

POINT FIVE: THE STANDARD OF REVIEW FOR PAROLE CONSIDERATION OF A TITLE 2C CONVICTION OCCURRING IN 1990 IS WHETHER THERE IS A SUBSTANTIAL LIKELIHOOD THAT AN INMATE WILL COMMIT A CRIME UNDER THE LAWS OF THIS STATE IF RELEASED ON PAROLE.

POINT SIX: THE PAROLE BOARD HAS DEMONSTRATED ITS INABILITY TO FOLLOW AND APPLY THE LAW OF THE NEW JERSEY ADMINISTRATIVE CODE RULES & REGULATIONS PERMITTING "FUTURE ELIGIBILITY TERMS" OUTSIDE OF THE PRESUMPTIVE GUIDELINES THAT SHOULD BE STRUCK DOWN AS ARBITRARY, UNJUST, ILLEGAL AND UNCONSTITUTIONAL.

Our standard of review of administrative decisions by the Board is limited and "grounded in strong public policy concerns and practical realities." Trantino v. N.J. State Parole Bd., 166 N.J. 113, 200, modified, 167 N.J. 619 (2001). "The decision of a parole board involves 'discretionary assessment[s] of a multiplicity of imponderables.'" Id. at 201 (alteration in original) (quoting Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979)). "To a greater degree than is the case with other administrative agencies, the Parole Board's decision-making function involves individualized discretionary appraisals." Ibid. (citing Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 358-59 (1973)).

Consequently, our courts "may overturn the Parole Board's decisions only if they are arbitrary and capricious." Ibid. With respect to the Board's factual findings, we do not disturb them if they "could reasonably have been reached on sufficient credible evidence in the whole record." Id. at 172 (quoting Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24 (1998)) (internal quotation marks omitted).

The governing standard set forth in N.J.A.C. 10A:71-3.21(d) allows a three-member Board to establish a "future parole eligibility date which differs from that required by the provisions[1] . . . if the future parole eligibility date which would be established pursuant to such subsections is clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior." (emphasis added). Because our scope of review is narrow, the determination that "there is a substantial likelihood an inmate will commit another crime if released" must be affirmed unless the Board's decision was unreasonable and unsupported by credible evidence in the record or contrary to law. Trantino, supra, 166 N.J. at 172 (citation and quotations omitted).

After considering the arguments advanced on appeal, and the record in light of all legal principles, we conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D). However, we add the following brief remarks.

The Board's findings are neither arbitrary nor unreasonable as defendant argues, but rather are supported by credible evidence verifying a high likelihood of recidivism. Such evidence includes defendant's criminal case file detailing the original charge of aggravated manslaughter for which he was incarcerated; responses and statements that were given by him at the April 2014 hearing which evince "a lack of insight into [his]criminal behavior," and a lack of "remorse or understanding for his violent criminal behavior, which includes the taking of another man's life"; the disciplinary records associated with his incarceration; and the mitigation letter.

The Board has authority to make the assessment as to the substantial likelihood that an inmate will commit another crime if released on parole and extend the FET. We find that the Board's decision to impose a 120 month FET is supported by sufficient credible evidence found in the record.

Affirmed.

1 N.J.A.C. 10A:71-3.21(a)(1) establishes a presumptive future parole eligibility schedule of an additional twenty-seven months for a prison inmate serving a sentence for murder.