MICHAEL CHUTON 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NOT FOR PUBLICATION WITHOUT THE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-1772-07T21772-07T2

MICHAEL CHUTON,

Appellant,

v.

NEW JERSEY STATE

PAROLE BOARD,

Respondent.

_______________________________________

 

Submitted November 18, 2008 - Decided

Before Judges Wefing and Yannotti.

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

Michael Chuton, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ellen M. Hale, Deputy Attorney General, on the brief).

PER CURIAM

Michael Chuton, an inmate at the South Woods State Prison, appeals from a final determination of the New Jersey State Parole Board, dated November 1, 2007, which denied his application for parole and established a twenty-month future eligibility term (FET). For the reasons that follow, we affirm.

Chuton is presently serving a five-year sentence, imposed on July 28, 2006, for manufacture, distribution and possession of a controlled dangerous substance (CDS), in violation of N.J.S.A. 2C:35-5a(1). Chuton is also serving a concurrent four-year sentence, imposed on July 8, 2005, for possession of a CDS, in violation of N.J.S.A. 2C:35-10a(1). Chuton became eligible for parole on August 29, 2007. He appeared before an adult panel of the Board on June 8, 2007. The panel denied parole and established a twenty-month FET.

In its notice of decision dated June 8, 2007, the panel found that there is a reasonable expectation that Chuton would violate the conditions of parole if he were released on parole. The panel noted by way of mitigation that Chuton had "average to above average" institutional reports. The panel noted, however, as reasons for denying parole that: Chuton had a prior criminal record; he had opportunities for probation which failed to deter criminal behavior; he had committed new offenses while on probation; he had previously been incarcerated but it had not deterred him from engaging in criminal behavior; he committed a serious institutional infraction, specifically an assault, which had resulted in the loss of commutation time and confinement in administrative segregation; he lacked insight into his criminal conduct; and his substance abuse problem had not been sufficiently addressed. The panel recommended that Chuton participate in substance abuse counseling and institutional programs geared to criminal conduct, and remain infraction free.

Chuton filed an administrative appeal to the full Board. Chuton asserted that the remainder of his sentence should be "revoked" because the federal immigration authorities had issued a detainer. Chuton anticipated that he would be deported because he violated the immigration laws. Chuton said that further incarceration would be a waste of time and money. He stated that his family was "going through tremendous hardship traveling back and forth from Peru to [the] United State[s] to" visit him. He also stated that his marriage was "in jeopardy because of this whole ordeal."

The Board issued a final decision on November 1, 2007. In its decision, the Board stated that the fact that Chuton might be deported was not a sufficient basis to grant parole. The Board said that it had no control over an inmate who has been deported to another country and there remained a concern that such a parolee might commit another offense in that jurisdiction or in the United States if the parolee were to return.

The Board found that the panel had considered all of the relevant information and fully documented and supported its decision to deny parole. The Board stated that the panel's decision "is based upon a reasonable expectation that [Chuton] would violate the conditions of parole if released on parole at this time." The Board affirmed the panel's decision to deny parole and establish a twenty-month FET. This appeal followed.

Chuton argues that the Board erred by relying upon his failure to participate in institutional programs as a reason to deny parole. Chuton says that he did not participate in such programs because of a lack of Spanish-speaking "program operators." In addition, Chuton asserts that a member of the adult panel made an inappropriate statement regarding his "deportation status" during his parole hearing. Chuton further contends that the Board erred by relying upon his refusal to admit that he committed an institutional infraction as a basis for denying parole.

The Supreme Court has recognized that the Board's parole determinations are highly "'individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (Trantino VI) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). Indeed, a parole decision "depends on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals by the Board members based upon their experience with the difficult and sensitive task of evaluating the advisability of parole release." 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).

The Board's discretionary authority in the parole process is broad but not unlimited, and the Board's decisions remain subject to judicial review for arbitrariness. Trantino VI, supra, 166 N.J. at 173 (citing Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971)). In reviewing a final decision of the Parole Board, we consider: 1) whether the Board's action is consistent with the applicable law; 2) whether there is substantial credible evidence in the record as a whole to support the Board's findings; and 3) whether in applying the law to the facts, the Board erroneously reached a conclusion that could not have been reasonably made based on the relevant facts. Trantino v. New Jersey State Parole Bd., 154 N.J. 19, 24 (1998) (Trantino IV).

Chuton is presently incarcerated for crimes committed in 2002 and 2004. Therefore, the standard that governs Chuton's application for parole is set forth in N.J.S.A. 30:4-123.53(a), which provides that an inmate shall be released at the time of his parole eligibility unless it is determined by a preponderance of the evidence that "there is a reasonable expectation that the inmate will violate the conditions of parole . . . if released on parole[.]" Ibid.

In making this determination, the Board must consider the factors enumerated in N.J.A.C. 10A:71-3.11(b), which include, but are not limited to, the facts and circumstances of the offense; aggravating and mitigating factors concerning the offense; commission of serious disciplinary infractions; the inmate's mental and emotional health; statements of the inmate reflecting on whether there is a likelihood the inmate will commit another crime; and participation in institutional programs. Ibid.

Here, the Board properly considered the relevant factors in N.J.A.C. 10A:71-3.11(b) in denying parole. The Board found that there is a reasonable expectation that Chuton will violate the conditions of parole if he is released. N.J.S.A. 30:4-123.53(a). The Board based this finding on the following facts. Chuton's criminal record indicated that his criminal offenses had become increasingly more serious. A previously imposed probationary term failed to deter Chuton from committing additional crimes. Chuton violated the terms of probation. Chuton committed a serious infraction while incarcerated. Chuton had a lack of insight into his criminal behavior, and had not sufficiently addressed this behavior or his substance abuse problems. The Board also based its determination on the confidential report it had received and a risk assessment which indicated that Chuton presented a high risk of recidivism. We are satisfied that the Board's decision to deny parole is fully supported by substantial credible evidence in the record.

Chuton argues that the Board erred by relying on his failure to participate in institutional programs. Chuton says that he did not participate in programs because the State's correctional system does not have sufficient Spanish-speaking "program operators." However, information in the confidential appendix filed by the State indicates that, although Chuton was born in Peru, he has resided in the United States for a considerable period of time.

Indeed, Chuton attended high school in Queens, New York, until he was sixteen years old. He has also participated in general education development courses at Bayside State Prison to obtain a high school diploma. Thus, the record does not support Chuton's assertion that his failure to participate in institutional programs was due to an inability to communicate adequately in the English language.

Chuton also argues that a member of the adult panel made an inappropriate comment regarding his "deportation status" during the panel's hearing. We note that Chuton did not raise this issue in his administrative appeal to the full Board. In any event, there is nothing in the record to suggest that the panel reached its decision based on anything other than the relevant factors under N.J.A.C. 10A:71-3.11(b). Moreover, the full Board reviewed the entire record and came to its own determination that parole should be denied because there is a reasonable expectation that Chuton will violate the conditions of parole if he is released. N.J.S.A. 30:4-123.53(a). As we have determined, there is substantial credible evidence in the record to support the Board's decision.

Chuton additionally contends that, in denying parole, the Board improperly relied upon the fact that he refused to admit that he committed the institutional infraction at his panel hearing. Chuton contends that, although he was found guilty of the infraction by the Department of Corrections (DOC), he attempted "to clear his name" by filing an appeal and a civil complaint against several corrections officers. Chuton says that, in these circumstances, he had a right to deny that he committed the infraction.

In our judgment, the panel and the Board did not err in considering the institutional infraction in denying parole. We note that, although Chuton filed a notice of appeal seeking to challenge the DOC's decision to impose sanctions, his appeal was dismissed as untimely. Chuton v. Dept. of Corrs., No. A-2069-07 (App. Div. Jan. 29, 2008). Consequently, the DOC's decision to impose sanctions for the assault has never been reversed.

Furthermore, as we have explained, the institutional infraction was one of the many reasons relied upon by the panel and the Board to deny parole. In their decisions, the panel and the Board relied upon Chuton's lack of insight into his criminal behavior. They did not specifically rely upon Chuton's refusal to admit that he committed the assault as a basis for denying parole. Even if the panel and the Board had done so, it would not have been erroneous because, as we have stated, the DOC's decision finding that Chuton committed the assault has never been overturned.

Affirmed.

 

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A-1772-07T2

December 11, 2008