PAUL PRESLEY 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NOT FOR PUBLICATION WITHOUT THE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-3130-05T13130-05T1

PAUL PRESLEY,

Petitioner-Appellant,

vs.

NEW JERSEY STATE PAROLE

BOARD,

Respondent-Respondent.

__________________________________

 

Submitted: November 1, 2006 - Decided December 1, 2006

Before Judges Cuff and Winkelstein.

On appeal from a Final Agency Decision of the New Jersey State Parole Board.

Paul Presley, appellant pro se.

Stuart Rabner, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Kimberly A. Sked, Deputy Attorney General, on the brief).

PER CURIAM

Petitioner Paul Presley is serving a thirty-year term of imprisonment with a ten-year period of parole ineligibility following his guilty plea in 1991 to several robberies, some of them while armed. He has completed the parole ineligibility term and appeals from the December 14, 2005 determination of the Parole Board to deny parole and establish a thirty-two month future eligibility term (FET). We affirm.

Petitioner was granted parole on August 17, 2004. He was returned to custody on September 8, 2004, and parole was revoked on October 13, 2004. Petitioner's parole was revoked because he failed to report as required and used cocaine. When his parole was revoked in October 2004, a twelve-month FET was established. As that term neared its completion, petitioner was considered for parole again. A two-member Adult Panel decided to deny parole and established a thirty-two month FET. The panel found that there was a substantial likelihood that petitioner would commit a new crime if released on parole at that time. It cited petitioner's prior extensive criminal record, his present incarceration for multiple offenses, the offense committed while on parole, his prior failed opportunities on probation and parole, and the lack of deterrence from prior incarcerations. The Adult Panel also cited a risk assessment evaluation and their concerns that petitioner lacked insight into his criminal behavior and failed to address his substance abuse problem and his mental health issues remained unresolved.

Petitioner submitted a timely request for reconsideration that was denied. Although the panel amended its March 18, 2005 decision to clarify that petitioner's current parole was revoked for technical violations rather than a new offense, the panel also noted that it had relied on confidential material/professional reports in reaching its determination. The panel also recommended additional programming for petitioner. It did not, however, amend its decision to deny parole and establish the thirty-two month FET. Petitioner's request for reconsideration was denied and he proceeded to appeal to the full Board.

On December 14, 2005, the Parole Board adopted the panel's amended decision and denied parole and established a thirty-two month FET. The Parole Board found that petitioner's supervision history is a matter of record, was on file and available for review, and was adequately addressed by the Adult Panel. The Parole Board also found that petitioner "provided no documentation or evidence to support [petitioner's] contention that the Board Panel failed to demonstrate that a preponderance of the evidence indicates a substantial likelihood that [he would] commit another crime if released on parole." The Parole Board also found that the Adult Panel's decision was based on sufficient evidence in the record.

The Parole Board also found that the same factors were not used to revoke parole and establish a twelve-month FET and to deny parole and establish the thirty-two month FET. Finally, the Parole Board found that the provisions of N.J.A.C. 10A:71-3.21 applied to the current matter before it.

On appeal, petitioner argues that the Adult Panel violated petitioner's substantive and procedural rights to due process of law. Petitioner insists that the Adult Panel failed to apply any of the prescribed twenty-three aggregate factors set forth in N.J.A.C. 10A:71-3.11(b) and failed to document the existence of future risk of criminal activity. He also contends that the Adult Panel relied on inaccurate information, exceeded statutory guidelines in fashioning the thirty-two month FET, prevented him from presenting documentary evidence, applied the wrong legal standard and failed to abide by its rules, regulations, standards and protocols. The Parole Board responds that the Adult Panel's decision is supported by substantial credible evidence and is consistent with the law governing petitioner's parole review.

Our review of the record demonstrates that the findings of the Adult Panel, as adopted by the Parole Board, are well-founded in the record. The Parole Board also applied the correct law and did not double count as asserted by petitioner.

Petitioner's offenses were committed in 1991 before the 1997 amendments; therefore, the standard of parole is established by N.J.S.A. 30:4-123.53(a) of the Parole Act of 1979. N.J.S.A. 30:4-123.45 to -123.76. N.J.S.A. 30:4-123.53(a) states in relevant part,

An adult inmate shall be released on parole at the time of parole eligibility, unless information . . . indicates by a preponderance of the evidence that the inmate has failed to cooperate in his or her own rehabilitation or that there is a reasonable expectation that the inmate will violate conditions of parole imposed . . . if released on parole at that time.

[N.J.S.A. 30:4-123.53(a).]

In determining whether a petitioner is eligible for parole, the Parole Board must consider "the aggregate of all of the factors which may have any pertinence," including those factors set out in N.J.A.C. 10A:71-3.11(b). Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 360 (1973).

According to N.J.A.C. 10A:71-3.11(b), the Adult Panel or Parole Board may consider any of the listed twenty-three factors, if relevant. The most pertinent factors in this case include, but are not limited to:

3. Nature and pattern of previous convictions.

4. Adjustment to previous probation, parole and incarceration.

5. Facts and circumstances of the offense.

6. aggravating and mitigating factors surrounding the offense.

. . . .

9. Statements by institutional staff, with supporting documentation, that the inmate is likely to commit a crime if released; that the inmate has failed to cooperate in his or her own rehabilitation; or that there is a reasonable expectation that the inmate will violate conditions of parole.

[N.J.A.C. 10A:71-3.11(b).]

The Adult Panel cited the following reasons for its decision: petitioner has a prior criminal record that is both extensive and repetitive; he is presently incarcerated for a multi-crime conviction; his current opportunities on parole were revoked for technical violations; his prior opportunities on probation and parole have failed to deter criminal behavior and have been violated in the past; prior incarcerations did not deter criminal behavior; his risk assessment evaluation; and he exhibits insufficient problem resolution, specifically lack of insight into criminal behavior, minimization of his conduct, failure to sufficiently address his substance abuse problems, lack of programming, and unresolved mental health issues.

The record demonstrates that petitioner has an extensive criminal record that dates to 1965. He has been involved in the criminal justice system in Pennsylvania and New Jersey almost continuously since that time. He has been convicted of or pled guilty to an array of offenses from burglary to armed robbery. He has received probationary terms and had been released on parole only to be returned to prison as a parole violator. His continuous criminal activity demonstrates that probation has been unsuccessful. Petitioner also does not acknowledge his criminal history.

We also reject petitioner's contention that the Parole Board was without authority to extend his parole after having revoked his parole and established a twelve-month FET. We rejected a similar argument in Hare v. New Jersey State Parole Board, 368 N.J. Super. 175, 178 (App. Div.), certif. denied, 180 N.J. 452 (2004). N.J.S.A. 30:4-123.64b and N.J.A.C. 10A:71-7.17B(a)3 both establish that a twelve-month FET is the maximum upon the initial revocation of parole. We do not, however, "read the statute or regulations as mandating an inmate's release after the twelve-month period of additional incarceration." Hare, supra, 368 N.J. Super. at 178. We said:

[o]nce the initial FET is imposed following revocation of parole, the Board is at liberty to evaluate [petitioner] as it would any other inmate seeking parole. That decision, in turn, is controlled by N.J.A.C. 10A:71-3.15 and N.J.A.C. 10A:71-3.21. The latter regulation states in relevant part:

(a) Upon determining to deny parole to a prison inmate, a two-member adult Board panel shall, based upon the following schedule, establish a future parole eligibility date upon which the inmate shall be primarily eligible for parole.

1. Except as provided herein, a prison inmate 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.

[Id. at 178-79.]

Furthermore, N.J.A.C. 10A:71-3.21(c) authorizes the Adult Panel to increase the twenty-seven-year presumptive term up to nine-months.

Here, the Parole Board appropriately determined that N.J.A.C. 10A:71-3.21 was the applicable rule, not N.J.A.C. 10A:71-7.17 as contended by petitioner. Furthermore, petitioner's thirty-two month FET is five months greater than the presumptive term and within the permissible nine-month month range, pursuant to N.J.A.C. 10A:71-3.21(c). As in Hare, supra, 368 N.J. Super. at 180-81, we find no basis to disturb the decision of the Parole Board.

 
The balance of the arguments presented by petitioner, some of which were not expressly raised before the Parole Board, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Accordingly, the decision of the Parole Board is affirmed.

Affirmed.

(continued)

(continued)

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A-3130-05T1

December 1, 2006