JERRY THOMAS 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NOT FOR PUBLICATION WITHOUT THE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-2122-09T1

JERRY THOMAS,

Appellant,

v.

NEW JERSEY STATE

PAROLE BOARD,

Respondent.

_________________________________________

July 5, 2011

Submitted June 15, 2011 Decided

Before Judges A. A. Rodr guez and Reisner.

On appeal from the New Jersey State Parole Board.

Jerry Thomas, 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 Jerry Thomas appeals pro se from the November 24, 2009 final agency decision of the New Jersey State Parole Board, denying parole and establishing a 180-month future eligibility term (FET). We affirm.

Thomas is currently serving prison terms at East Jersey State Prison in Rahway, following three convictions, stemming from two separate incidents. Thomas was convicted of second-degree burglary and was sentenced to a seven-year term, with a three-year parole disqualifier. He was subsequently convicted of: (1) first-degree aggravated sexual assault for which he received an extended term of life with a mandatory twenty-five year minimum term; (2) second-degree burglary for which he received a seven-year term; and (3) third-degree possession of a weapon for unlawful purpose for which he received a nine-month term. The trial judge ordered that the sentences stemming from the second incident run consecutively.

On December 30, 1979, Thomas rang a doorbell at a woman's home in Vineland. When she answered it, Thomas forced the door open and grabbed her. He put his hand over her mouth, turned her around and stated, "don't look at me and turn off the light." Thomas took the woman upstairs, then guided her to a chair and told her to sit down. Thomas then left the premises. Later that day, he was arrested and the victim positively identified him as the intruder.

On September 10, 1980, while he was on bail on the burglary charge, Thomas raped a woman in her Vineland apartment. The woman was awakened in her bed by Thomas, who placed his hand over her mouth and stated, "don't say anything or I will kill you." Thomas tied a towel around her head to cover her mouth. He removed the towel from her head, took a knife from his pants pocket and forced the woman to perform fellatio on him. Then, Thomas tied the towel around her mouth and forced her to have intercourse with him. Eventually, he left the home.

During his period of confinement, Thomas had been adjudicated as having committing five institutional disciplinary infractions. In September 2008, after serving approximately twenty-seven years and eleven months of his sentences, Thomas became eligible for parole for the first time. After an initial hearing, the hearing officer referred the matter to a two-member Board Panel.

The two-member Board Panel denied parole and referred the matter to a three-member Board Panel for the establishment of an FET outside of the administrative guidelines. The two-member Board Panel based its decision on the following factors: prior criminal record; nature of criminal record increasingly more serious; presently incarcerated for a multi-crime conviction; prior opportunity on probation failed to deter criminal behavior; prior incarceration did not deter criminal behavior; commission of institutional disciplinary infractions which have resulted in loss of commutation time and confinement in detention; insufficient problem resolution, specifically, a lack of insight into criminal behavior, minimization of conduct, and failure to address a substance abuse problem, as demonstrated by the panel interview, documentation in the case file and confidential material/professional report.

The three-member Board Panel established a 180-month FET. The three-member panel noted that Thomas had participated in programs specific to behavior, achieved "Gang Minimum" custody status and had commutation time restored. In addition, the panel removed the "substance abuse problem not fully addressed" and added the "risk assessment evaluation." The panel detailed its reasoning in an eight-page narrative decision.

Thomas appealed to the full Parole Board. The Board upheld the denial of parole and established a 180-month FET.

On appeal, Thomas contends:

THE NEW JERSEY PAROLE BOARD'S UNFETTERED DISCRETION TO DEVIATE FROM ADMINISTRATIVE GUIDELINES WITH NO SET TIMETABLE ALLOWS AN ARBITRARY, CAPRICIOUS AND MECHANICAL OPERATION OF THE STATUTE, WHICH RESULTS IN VIOLATIONS OF THE STATUTES, CONSTITUTIONS OF NEW JERSEY AND THE UNITED STATES, AND REQUIRES REVIEW BY THIS COURT AND THE APPOINTMENT OF COUNSEL.

THE NEW JERSEY PAROLE BOARD FAILED TO DOCUMENT THAT A PREPONDERANCE OF THE EVIDENCE INDICATES A SUBSTANTIAL LIKELIHOOD THAT THIS INMATE WILL COMMIT A CRIME IF RELEASED ON PAROLE.

We reject these contentions.

This decision is subject to the discretion of the Parole Board, but can be reviewed by us for arbitrariness. Because the parole eligibility statute creates a presumption that a person should be released on his or her eligibility date, a decision not to release must be considered arbitrary if it is not supported by a preponderance of the evidence in the record. Kosmin v. N.J. State Parole Bd., 363 N.J. Super. 28, 41-42 (App. Div. 2003).

Our standard of review of administrative decisions by the Parole Board is limited, and "grounded in strong public policy concerns and practical realities." Trantino v. N.J. State Parole Bd. ("Trantino V"), 166 N.J. 113, 200 (2001). "The decision of a parole board involves 'discretionary assessment[s] of a multiplicity of imponderables . . . .'" Id. at 201 (alteration in original) (quoting Greenholtz v. Inmates of Nebraska Penal and Corr. Complex, 442 U.S. 1, 10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979)). "To a greater degree than is the case with other administrative agencies, the Parole Board's decision-making function involves individualized discretionary appraisals." Ibid. (citing Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 358-59 (1973)). Consequently, our courts "may overturn the Parole Board's decisions only if they are arbitrary and capricious." Ibid.

With respect to the Board's factual findings, we do not disturb them if they "'could reasonably have been reached on sufficient credible evidence in the whole record.'" Id. at 172 (quoting Trantino v. N.J. State Parole Bd. ("Trantino IV"), 154 N.J. 19, 24 (1998)). We will not second-guess the Board's application of its considerable expertise in sustaining the hearing officer's determination. See, e.g., In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff d, 135 N.J. 306 (1994).

Here, we are fully satisfied that the denial of Thomas's parole and the Board's imposition of a new 180-month FET, was supported by substantial credible evidence in the record. The decision was also neither arbitrary nor capricious. In sum, we are satisfied that the minimal constitutional requirements of due process were fulfilled in this case. See Morrissey v. Brewer, 408 U.S. 471, 485-89, 92 S. Ct. 2593, 2602-2605, 33 L. Ed. 2d 484, 497-499 (1972).

We have considered Thomas's remaining contention:

THE ABSENCE OF A SCHEDULE FOR FUTURE ELIGIBILITY TERMS OUTSIDE OF THE REGULATORY AND STATUTORY GUIDELINES RENDERS N.J.A.C. 10A:71-3.2(d)(4) VOID FOR VAGUENESS AND UNCONSTITUTIONAL IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT OF THE UNITED STATES CONSTITUTION.

We conclude that the contention lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).