DWIGHT TITUS 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NOT FOR PUBLICATION WITHOUT THE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-1268-10T4

DWIGHT TITUS,

Appellant,

v.

NEW JERSEY STATE PAROLE

BOARD,

Respondent.

_

August 24, 2011

Submitted August 17, 2011 - Decided

Before Judges J. N. Harris and Fasciale.

On appeal from the New Jersey State Parole Board.

Dwight Titus, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jason S. Postelnik, Deputy Attorney General, on the brief).

PER CURIAM

Pro se plaintiff Dwight Titus appeals from a September 29, 2010 final decision by the New Jersey State Parole Board (the Board) denying him parole and imposing a twelve month future eligibility term (FET). We affirm.

In December 2006, the police pulled over Titus for speeding, searched his car, located over thirty-six pounds of marijuana, and arrested him. Titus was convicted for first-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(1) and N.J.S.A. (b)(10)(a); third-degree exhibiting false government documents, N.J.S.A. 2C:21-2.1c; and third-degree hindering apprehension, N.J.S.A. 2C:29-3b(4). The judge sentenced Titus on the drug-related conviction to fourteen years in prison, and imposed concurrent five-year prison terms on the other convictions. Titus's criminal record consisted of one prior indictable conviction for assault, which resulted in his deportation in 1998, and a conviction for possession of a forged instrument.

On September 8, 2010, Titus became eligible for parole. At his initial hearing on June 11, 2010, the hearing officer referred the matter to a two-member panel of the Board based upon the following aggravating factors: prior criminal record; presently incarcerated for multi-crime conviction; prior incarceration did not deter criminal behavior; lack of an adequate parole plan to assist in successful reintegration into the community; and returned after deportation.

On July 1, 2010, the two-member panel denied Titus parole and established a twelve month FET. The panel considered certain mitigating factors, such as, Titus was infraction free, participated in various programs specific to behavior, and that his institutional adjustment had been favorable. Nevertheless, the panel agreed with the findings of the hearing officer and found that Titus demonstrated "insufficient problem resolution." The panel noted that Titus was "deported, came back [to] the U.S. and wound up transporting major quantit[ies] of drugs," and concluded that Titus lacked insight into his criminal behavior.

On July 20, 2010, Titus appealed to the full Board. The Board upheld the panel's decision to deny parole and impose a twelve month FET. This appeal followed.

On appeal, Titus argues that:

BOTH BOARD MEMBERS VIOLATED ADMINISTRATIVE POLICY BY DENYING APPELLANT'S PAROLE RELEASE, OR IN THE ALTERNATIVE, BASED ON NOTED MITIGATING FACTORS BY THE BOARD [THE BOARD] SHOULD HAVE PAROLED APPELLANT TO HIS IMMIGRATION DETAINER, AS THE RECORD SUPPORTS THAT APPELLANT PARTICIPATED IN HIS OWN REHABILITATION.

Our review of a Parole Board's determination is limited. We have previously stated that

In addressing the validity of the Parole Board's denial of parole, the judicial role concentrates on three inquiries: (1) whether the agency's action violates express or implied legislative policies, i.e., did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Trantino v. State Parole Bd., 154 N.J. 19, 24 (1998) (citing Brady v. Dep't of Personnel, 149 N.J. 244, 256 (1997)).]

Parole Board decisions will be upheld unless found to be arbitrary or an abuse of discretion. Id. at 25 (citing Monks v. State Parole Bd., 58 N.J. 238, 242 (1971); State v. Lavelle, 54 N.J. 315, 322 (1969)). Because "Parole Board determinations are highly 'individualized discretionary appraisals,'" Trantino, supra, 154 N.J. at 25 (quoting Beckworth v. State Parole Bd., 62 N.J. 348, 368, petition denied, 63 N.J. 583 (1973), dependent upon the facts of the case, we "must determine whether the factual finding could reasonably have been reached on sufficient credible evidence in the whole record." State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.) (citation omitted), certif. denied, 111 N.J. 649 (1988).

N.J.S.A. 30:4-123.53a states in pertinent part that an inmate shall not be released on parole if it is established "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." N.J.A.C. 10A:71-3.11(b) provides that the Board may consider any relevant factor including:

1. Commission of an offense while incarcerated.

2. Commission of serious disciplinary infractions.

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.

When the Board denies parole, the standard FET for a drug related offense is twenty months. N.J.A.C. 10A:71-3.21(a)3. The typical FET, however, may be increased or decreased by up to nine months if "the severity of the crime for which the inmate was denied parole and the prior criminal record or other characteristics of the inmate warrant such an adjustment." N.J.A.C. 10A:71-3.21(c)

We find that the Board's decision was reasonable, and we see no basis for disturbing it. We affirm substantially for the reasons expressed by the Board in its September 29, 2010 final decision. We add the following brief comments.

In denying parole, the Board properly weighed several aggravating and mitigating factors, found that a reasonable expectation existed that Titus would violate his conditions of parole, and imposed an FET period shorter than the standard FET. Thus, the Board's decision is supported by substantial, credible evidence in the record and has not been shown to be an arbitrary exercise of discretion.

We have carefully reviewed the record and the remaining arguments presented and conclude that the issues presented by Titus are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E).

A