JOHN MCGILL 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NOT FOR PUBLICATION WITHOUT THE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-0918-10T2

JOHN MCGILL,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

__________________________________

December 2, 2011

Submitted October 31, 2011 - Decided

Before Judges Parrillo and Grall.

On appeal from the New Jersey State Parole

Board.

John McGill, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney

General, of counsel; Christopher C. Josephson, Deputy

Attorney General, on the brief).

PER CURIAM

Appellant John McGill appeals from a July 28, 2010 decision of respondent, New Jersey State Parole Board (Parole Board or Board), denying him parole and establishing a 120-month Future Eligibility Term (FET). We affirm.

The relevant facts are as follows. Appellant is currently serving a term of life imprisonment with a mandatory minimum of twenty-five years imposed on his September 27, 1983 conviction for first-degree murder. That sentence was made to run consecutive to an aggregate six-and-one-half year term imposed on unrelated convictions for theft, forgery and uttering a forged check. These crimes represented a continuation of an escalating pattern of criminal activity, including drug offenses, breaking and entering, receiving stolen property and armed robbery, preceded by an extensive juvenile history. In fact, at the time of the present offenses, defendant was on parole for the armed robbery conviction and self-described his life on parole as "hustling" and "selling drugs."

Since he was sentenced on the murder offense on November 10, 1983, appellant has been found guilty of committing at least nineteen institutional disciplinary infractions, including nine asterisk offenses. His most recent infraction occurred on March 10, 2008.

Appellant first became eligible for parole on January 26, 2009. On October 31, 2008, a hearing officer referred the matter for a hearing before a Board Panel due to the serious nature of the offense, i.e., murder, pursuant to the mandate of N.J.A.C. 10A:71-3.15(b).1 On December 4, 2008, a two-member Board Panel, after a hearing which included an interview with appellant and a review of his parole file, denied parole and referred the matter to a three-member Panel for the establishment of a FET outside of the administrative guidelines.

The Panel's decision was based on a number of factors, including appellant's present incarceration for a multi-crime conviction; his criminal record, which is extensive and repetitive; the failure of prior probation and parole opportunities and incarceration to deter his criminal behavior; commission of institutional disciplinary infractions, which are numerous, persistent and serious in nature; insufficient problem resolution, specifically, a lack of insight into criminal behavior and minimization of conduct; lack of an adequate parole plan to assist in successful reintegration into the community; and a risk assessment evaluation indicating that appellant was a "medium" risk to recidivate. In mitigation, the Panel did consider that appellant had participated in institutional programs specific to behavior, had average to above-average institutional reports, had made attempts to enroll and participate in programs but was not admitted, and had lost commutation time restored.

On April 15, 2009, a three-member Panel established a 120-month FET in a detailed thirteen-page written decision. In doing so, the Panel cited the same factors relied upon by the two-member Panel in denying appellant parole. Specifically, the three-member Panel noted that after nearly twenty-seven years of incarceration, appellant remains unable to identify the causes of his violent behavior; persists in minimizing his criminal conduct; completely lacks empathy or remorse for the victim; and continues his anti-social and maladaptive behavior during incarceration. As to appellant's lack of insight, the Board concluded:

[w]hat was not recognized or acknowledged by you during your Board panel hearing was the fact that beyond financial reasons affecting you as you claim, why specifically did it affect you to return to criminal behavior, ultimately resulting in the victim's death. The Panel notes that societal and familial issues affect individuals on a daily basis, but the stressors you claim fell upon you, impelled you to elevate your criminality and commit the most severest of crimes, first degree Murder. This aspect to your perceived realization has not yet been explored by you. Beyond recognizing a specific traumatic event that possibly led to the underlying motivations to your violent criminal behavior, the Board panel believes that you must come to understand why you reacted and behaved in the crime specific manner that you did.

The Board also found appellant's parole plan, which merely requested a "placement[,]," and indicated he would seek employment when released, to be inadequate.

Appellant administratively appealed both panel decisions to the full Board. On July 28, 2010, the full Board affirmed the Panels' decisions to deny parole and establish a 120-month FET.

On appeal, appellant pro se raises the following issues:

I. DUE TO THE CLEAR FACTS OF THIS CASE, ITS OUTCOME IS AMENABLE TO SUMMARY DISPOSITION, IN ORDER TO COMPORT WITH CHANGES IN THE PAROLE LAW, THE 120 MONTH FUTURE ELIGIBILITY TERM ESTABLISHED BY THE PAROLE BOARD'S PANEL SHOULD BE REDUCED TO 36 MONTHS.

II. THE PAROLE BOARD ACTED ARBITRARY AND CAPRICIOUSLY, THEY ABUSED THEIR DISCRETION WHEN THEY DENIED PAROLE AND SET A FUTURE ELIGIBILITY TERM OF 120 MONTHS.

a. The Risk Assessment Was Flawed.

b. The Appellant's History of Institutional Disciplinary Infractions Is Not Predictive of Recidivism And, The Parole Board Did Not Know The Underlying Circumstances of The Infractions That Were Used As Aggravating Factors.

c. The Parole Board Did Not Adequately Consider the Appellant's Parole Plans.

d. The Parole Board Arbitrarily Ignores Mathematical Facts.

In his reply brief, appellant raises these additional arguments:

I. IT WOULD BE A VIOLATION OF THE EX POST FACTO CLAUSE FOUND UNDER BOTH THE NEW JERSEY STATE CONSTITUTION AND THE UNITED STATES CONSTITUTION TO ALLOW THE PAROLE BOARD TO IMPOSE A FUTURE ELIGIBILITY TERM OF GREATER THAN 36 MONTHS.

II. THE PAROLE BOARD SHOULD BE ORDERED TO SET THE APPELLANT'S INITIAL PAROLE ELIGIBILITY DATE TO APRIL 19, 2008.

Preliminarily, we note that, because appellant committed the relevant offenses in 1982, the governing standard is that stated in N.J.S.A. 30:4-123.53(a), before its amendment on August 19, 1997, L. 1997, c. 213, 1., which provided that the inmate shall be released on parole unless,

by a preponderance of the evidence . . . there is a substantial likelihood that the inmate will commit a crime under the laws of this State if released on parole at such time.

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

In this determination, the Parole Board must consider the aggregate of all pertinent factors, including those set forth in N.J.A.C. 10A:71-3.11(b). See Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 360 (1973) ("Common sense dictates that [the Board's] prediction as to future conduct . . . be grounded on due consideration of the aggregate of all of the factors which may have any pertinence.").

Because such determinations are "highly 'individualized discretionary appraisals,'" a decision of the Board concerning an inmate's suitability for parole under the statutory standard should not be reversed by a court unless found to be arbitrary or an abuse of discretion. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998) (quoting Beckworth, supra, 62 N.J. at 359). We further recognize that the question whether a statutory standard has been met is essentially factual in nature, and that judicial review is limited to determining whether the Parole Board's "'factual finding could reasonably have been reached on sufficient credible evidence in the whole record.'" Id. at 24 (quoting N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988)).

In addition, in reviewing the Board's determination of whether the standard for release has been met, we must give due regard to the ability of the factfinder to judge credibility and, where an agency's expertise is a factor, to that expertise. State v. Locurto, 157 N.J. 463, 470-71 (1999); see, e.g., In re Polk License Revocation, 90 N.J. 550, 578 (1982) (holding the court should not substitute its judgment for that of the agency). This is especially so where, as here, the decision concerns a prediction as to an inmate's future behavior, a prediction fraught with subjectivity, mandating broad discretion in the Board's decision-making process. Puchalski v. N.J. State Parole Bd., 104 N.J. Super. 294, 300 (App. Div.), aff d, 55 N.J. 113 (1969), cert. denied, 398 U.S. 938, 90 S. Ct. 1841, 26 L. Ed. 2d 270 (1970). Thus, the Parole Board's decision should only 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.'" Cestari, supra, 224 N.J. Super. at 547 (quoting 613 Corp. v. State, Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)).

Here, the Parole Board's decision properly considered all relevant factors, correctly applied the governing standard, and is rationally supported by sufficient, credible facts in the record. The present offenses represent an escalation in the seriousness of appellant's previous criminal activity, for which neither prior probation, parole nor incarceration acted as a deterrent. Moreover, the Board appropriately determined, based upon the Panel's interview and documentation in the file, that appellant lacked insight into his criminal conduct, and that his anti-social, maladaptive behavior persists to date, as evidenced by his extensive history of institutional disciplinary infractions. While due regard was also given to mitigating factors, which the Panel enumerated in its decision, the balance weighed in favor of denying parole, and in fixing his FET at 120 months, N.J.A.C. 10A:71-3.21(d), determinations with which we find no fault.

As to the FET specifically, appellant claims that the decision to impose an extended term outside of the administrative guidelines was unsupported by the record and was in violation of existing law. We disagree. As to the former, the FET was imposed in accordance with N.J.A.C. 10A:71-3.21(d) based upon appellant's lack of satisfactory progress in reducing the likelihood of criminal behavior upon release on parole, which determination was amply supported by the record.

We also reject appellant's other claim that his FET was imposed after the effective date of the amended statute which abolished FETs no longer than three years. As amended in 2010, L. 2009, c. 330, 6, N.J.S.A. 30:4-123.56(a) provided that "in no case shall any parole eligibility date scheduled pursuant to this subsection be more than three years following the date on which an inmate was denied release." This amendment became effective on August 1, 2010. L. 2009, c. 330, 6. Here, the initial decision of a three-member Panel of the Parole Board imposing the 120-month FET was issued on April 15, 2009, and the full Parole Board's final decision adopting this FET was issued on July 28, 2010. By then, the amendment to N.J.S.A. 30:123.56(a) establishing a maximum period of three years for any FET had not yet become effective, and therefore the present matter does not fall within ambit of the amended statute.2

We have considered appellant's remaining contentions and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E).

Affirmed.

1 N.J.A.C. 10A:71-3.15(b) provides that, in the case of an offender who is serving a term for certain enumerated crimes, including murder, the hearing officer shall refer the case for a hearing before a Board Panel.

2 We note that thereafter, on May 9, 2011, the Legislature repealed the part of N.J.S.A. 30:4-123.56(a) that established a maximum three-year period for any FET, L. 2011, c. 67, 6, restoring discretion to the Board in fixing FETs outside the administrative guidelines. Presently, the Parole Board may impose a FET in excess of three years in appropriate cases.