LOUIS WATLEY 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NOT FOR PUBLICATION WITHOUT THE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-4558-04T24558-04T2

LOUIS WATLEY,

Appellant,

v.

NEW JERSEY STATE PAROLE

BOARD,

Respondent.

_________________________________________

 

Submitted November 30, 2005 - Decided January 13, 2006

Before Judges Stern and Grall.

On appeal from New Jersey State Parole

Board.

Louis Watley, appellant pro se.

Peter C. Harvey, Attorney General, attorney

for respondent (Michael J. Haas, Assistant

Attorney General, of counsel; Walter C.

Kowalski, Deputy Attorney General, on the

brief).

PER CURIAM

Louis Watley, an inmate at East Jersey State Prison, appeals from a final decision of the State Parole Board that denies him parole and establishes a future eligibility term (FET) of twenty-seven months. We affirm.

Watley committed the crimes that led to his incarceration in April 1997. The victim was an eighteen-year old woman who was employed by Watley. He was tried to a jury and convicted of first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a(3); second-degree kidnapping, contrary to N.J.S.A. 2C:13-1b; fourth-degree criminal sexual contact, contrary to N.J.S.A. 2C:14-3b, and terroristic threats, contrary to N.J.S.A. 2C:12-3b.

Pursuant to N.J.S.A. 2C:47-1, Watley was evaluated prior to his sentencing for commission of aggravated sexual assault. The psychologist concluded that there was "insufficient evidence to establish a pattern of repetitive and compulsive sexual behaviors [within the meaning of N.J.S.A. 2C:47-1]." However, referencing "hedonistic exploitation" and "aggression," the evaluator also advised that the present offense raised "obvious concerns" about Watley's "impulse control."

On March 9, 2001, the trial judge sentenced Watley to the custody of the Commissioner of the Department of Corrections for an aggregate term of eighteen years. He received credit for 158 days of confinement prior to sentencing.

Watley's conviction was affirmed by this Court on direct appeal. The Supreme Court denied his petition for certification. State v. Watley, No. A-4295-00 (App. Div. Apr. 23, 2004), certif. denied, 180 N.J. 458 (2004).

The crimes for which Watley is incarcerated are not his first convictions. He was convicted in municipal court on charges that he committed intimidation in April 1966, possession of a weapon in June 1966, and shoplifting in 1968. The sentences he received were sixty days in County Jail (intimidation), one year probation (possession of a weapon) and a fine (shoplifting). In 1972 a jury acquitted Watley of rape, and in 1987 a jury acquitted him of sexual assault.

Watley is fifty-eight years of age and a college graduate. This is his first prison sentence. He has had no disciplinary infractions in prison. His housing report indicates that he is very quiet and "does a lot of work in the law library." His work report indicates "average" attendance, "minimal" need for supervision and "excellent" ability to work with others. He has not taken any education courses or been involved in any special activities related to treatment, self-improvement, counseling or self-help. He is married, and his wife is supportive of him and is operating his business while he is incarcerated.

He denies that he committed the crimes for which he is serving a sentence. He first became eligible for parole on November 26, 2004. Assessment scales indicate that Watley poses a low to moderate risk of recidivism.

On October 21, 2004, a two-member panel of the Parole Board considered Watley's parole. Acknowledging that Watley had remained free of infractions while incarcerated, the panel detailed his prior criminal convictions and found that his prior record was extensive and that his crimes had become increasingly more serious. The panel also noted that Watley was incarcerated for multiple convictions. The panel found additional risk factors: insufficient problem resolution; lack of insight into criminal behavior, and denial and minimization of criminal conduct. Based upon Watley's interview and his file, the panel evidenced that he would benefit from programs dealing with impulse control, aggression and poor judgment. The panel suggested that he participate in a program geared toward behavior modification and in one-to-one counseling. Watley received the decision on November 18, 2004.

On December 10, 2004, Watley filed a request for reconsideration and an appeal to the State Parole Board. On February 3, 2005, the Chief of the Appeals Unit wrote to Mr. Watley. He advised that the Adult Panel considered his request for reconsideration on February 2, 2005, and determined that they had considered all relevant materials and fully documented their reasons for denying parole.

On March 30, 2005, the Board affirmed the Panel's decision. The Board explained:

To reiterate, the full Board found that the Panel supported its reasons for parole denial based upon the fact that you have three prior convictions. In addition, the nature of your criminal record is increasingly more serious as evidenced by the fact that you are presently incarcerated for a multi-crime conviction. The Panel found that they appropriately determined that you lack insight into your criminal behavior, minimize your conduct and deny the crime as evidenced by the Panel interview and documentation in your file, including confidential information. The Panel did not base their decision to deny parole on a lack of program participation, to the contrary, the Panel noted that you could benefit from programs dealing with impulse control, aggression and poor judgment.

. . . .

Based on a consideration of the facts cited above, the full Board has determined that the Adult Panel has documented, by a preponderance of evidence, that there is a substantial likelihood that you would commit a crime if released on parole at this time. You provide no new or significant information for the full Board to consider that would impact upon the decision that was made.

On appeal Watley raises three arguments. All three lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add a brief explanation for that conclusion with respect to each argument.

First, relying upon the earliest possible parole date as estimated by the trial court at the time of sentencing, Watley claims that the Panel did not conduct the hearing by the date required by statute. The failure to conduct a timely hearing does not entitle a prisoner to automatic release. Dougherty v. N.J. State Parole Bd., 325 N.J. Super. 549, 555 (App. Div. 1999), certif. denied, 163 N.J. 77 (2000). Moreover, even assuming that there was delay, there can be no prejudice because Watley's future parole eligibility must be calculated from the date of first eligibility. N.J.A.C. 10A:71-3.2(c)(9).

Watley's second argument is that the Panel and Board failed to consider the evidence he presented and considered non-credible evidence presented by the State. To support that argument, he points to evidence he submitted in support of his claim of innocence. He criticizes the consideration of a letter the prosecutor's office submitted detailing his prior convictions, references the impact of the crime on the victim and suggests that the Board consider Watley's acquittals of sex offenses as evidential of his risk of recidivating.

The Board is not authorized to consider evidence in contradiction of a judgment of conviction nor is it authorized to consider evidence of charges of which an inmate was acquitted. Our review of the record convinces us that the Board did neither. Moreover, the Board clearly did not support its decision with reference to harm to the victim, a matter irrelevant to the standard for release under the Parole Act of 1979, which is applicable in this case. N.J.S.A. 30:4-123.53 (as enacted by L. 1979, c. 441, 9).

Finally, we see no merit in Watley's claim that the Board erred in accepting the Panel's conclusion that Watley could benefit from programs dealing with impulse control, aggression and poor judgment. Those recommendations are supported by the psychological evaluation performed prior to his sentencing proceeding.

We affirm the Board's denial of parole because the decision is supported by sufficient credible evidence in the record and consistent with controlling legal standards. R. 2:11-3 (e)(1)(D). Where, as in this case, an inmate is incarcerated based upon conviction for a crime committed after the adoption of the Parole Act of 1979 and before its amendment effective August 18, 1997, the Board may deny parole only if a "preponderance of the evidence" properly before it indicates that there is "a substantial likelihood that the inmate will commit a crime under the laws of this State if released on parole." L. 1979, c. 441, 9; cf. N.J.S.A. 30:4-123.53 (as amended by L. 1997, c. 213, 1 (effective August 19, 1997)).

We review the Board's decision for arbitrariness. N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547-48 (App. Div.), certif. denied, 111 N.J. 649 (1988). "Under this standard, the agency's decision will be set aside 'if there exists in the reviewing mind a definite conviction that the determination below went so far wide of the mark that a mistake must have been made.'" Id. at 547 (quoting 613 Corp. v. State of N.J., Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)).

We cannot conclude that the decision under review is so lacking in evidential support that the Board must have been mistaken in concluding factors indicating a substantial likelihood of recidivism preponderated. While Watley's prior convictions were neither recent nor serious, he had the benefit of both probation and a jail sentence prior to committing these multiple crimes. The sentencing transcript reflects that at least one of the present crimes was committed on a separate day. Moreover, although Watley had not violated prison regulations while incarcerated, he continued to deny his guilt and minimize his conduct despite the jury verdict establishing his guilt. That current evidence adds support for the Board's conclusion.

This is not a case in which the Board considered an inmate's denial of facts that were not established by the jury verdict as relevant to the likelihood of commission of another crime. That is clearly improper. Kosmin v. N.J. State Parole Bd., 363 N.J. Super. 28, 42 (App. Div. 2003). Here, the Board considered Watley's denial of the crimes for which he was convicted not his denial of the crimes of which he was acquitted, and, in any event, we find no abuse of the Board's considerable discretion.

The Board did not abuse its discretion when it set a twenty-seven-month FET. N.J.A.C. 10A:71-3.21(e). That is the standard FET applicable to an inmate serving a term for aggravated sexual assault. N.J.A.C. 10A:71-3.21(a)(1).

 
Affirmed.

Our reference to this report does not reveal information that has been withheld from Watley. He included a copy of this evaluation in his appendix on appeal.

Watley's appendix includes not only his psychological evaluation but also evaluations of the victim of his crimes. The Clerk is directed to remove those confidential documents from the appendix.

Curiously, although the authorities provided a copy of the prosecutor's letter to Mr. Watley, the Panel and the Board decision both refer to that letter as confidential.

(continued)

(continued)

9

A-4558-04T2

January 13, 2006