HENRY OLIVERIA 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NOT FOR PUBLICATION WITHOUT THE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-2451-09T3

HENRY OLIVERIA,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

_________________________________

March 7, 2011

Submitted February 8, 2011 - Decided

Before Judges Parrillo and Yannotti.

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

Henry Oliveria, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney

General, of counsel; Christopher C. Josephson, Deputy

Attorney General, on the brief).

PER CURIAM

Appellant inmate, Henry Oliveria, appeals from a final decision of respondent, New Jersey State Parole Board (Board), denying him parole and establishing a 180-month Future Eligibility Term (FET). We affirm the denial of parole, but reverse the imposition of a 180-month FET and remand for further determination in that regard.

The relevant facts are as follows. Oliveria's March 4, 1983 conviction of murder following a jury trial resulted from his stabbing a seventy-nine-year-old male forty-three times with the apparent intention of robbing him. The victim suffered twenty-nine stab wounds in the chest area, six in the left shoulder, five in the back, two in the right hand, and a defensive wound inside the left index finger. The cause of death was listed as "multiple stab wounds of the chest penetrating the heart and lungs." On May 6, 1983, Oliveria was sentenced to a term of life imprisonment with a mandatory minimum of twenty-five years.

Prior to his murder conviction, Oliveria had three adult convictions, for shoplifting, N.J.S.A. 2C:20-11; assault and battery, N.J.S.A. 2C:12-1; and possession of burglary tools, N.J.S.A. 2C:5-5. He also had an extensive juvenile record. During his twenty-six and one-half-year period of incarceration on his present conviction, Oliveria has been found guilty of committing at least sixty-five institutional disciplinary infractions, including at least twenty asterisk offenses. His most recent infractions, for failure to provide a specimen for testing and possession of narcotic paraphernalia, occurred on August 10, 2008.

Oliveria first became eligible for parole on February 7, 2009. On October 24, 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 November 20, 2008, a two-member Board panel denied parole and referred the matter to a three-member panel for the establishment of a FET outside of the administrative guidelines. On March 4, 2009, a three-member Board panel denied Oliveria parole and established a 180-month FET.

On July 13, 2009, Oliveria filed an administrative appeal, requesting that the full Board reconsider the panel decisions of November 20, 2008 and March 4, 2009. On December 16, 2009, the Board affirmed the respective panel decisions to deny parole and establish a 180-month FET, concluding that:

the Adult Panel has considered the aggregate of information pursuant to N.J.A.C. 10A:71-3.11 and fully documented and supported its decision for denying parole pursuant to N.J.A.C. 10A:71-3.18(f). Also, the full Board found that the Adult Panel's decision is based upon a determination that a preponderance of the evidence indicates that there is a substantial likelihood that you would commit a crime if released on parole at this time.

This appeal follows in which Oliveria challenges the Board's decision as arbitrary and capricious.

Because Parole Board determinations are highly "individualized discretionary appraisals," a decision of the Board concerning an inmate's suitability for parole under the statutory standards 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). The question of whether a statutory standard has been met is "'essentially factual'" in nature and judicial review is limited to determining whether the 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)). See also Williams v. N.J. State Parole Bd., 336 N.J. Super. 1, 8 (App. Div.), certif. denied, 165 N.J. 523 (2000).

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). Under this standard, the 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. N.J. Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)).

Here, because Oliveria was serving a sentence for a crime committed before August 18, 1997, the standard governing his release on parole is that contained in N.J.S.A. 30:4-123.53(a) before its amendment on that date. Before August 18, 1997, N.J.S.A. 30:4-123.53(a) and -123.56(c) provided that when an inmate becomes eligible for parole, the Board may deny parole release if it appears from a preponderance of the evidence that "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."2

The overall legislative scheme is designed to minimize the likelihood of future criminal behavior and to limit the parole opportunity to those instances where there is a reasonable probability that the inmate will be law abiding. "The [Parole] Act thus posits the likelihood of future criminal conduct as the determinative test for parole eligibility and effectively establishes a presumption in favor of parole." In re Trantino Parole Application, 89 N.J. 347, 355-56 (1982). This is a "highly predictive and individualized discretionary appraisal[]" that necessarily takes into account "the aggregate of all of the factors which may have any pertinence[,]" Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359-60 (1973), including those set forth in N.J.A.C. 10A:71-3.11(b).

N.J.A.C. 10A:71-3.11(b) contains a non-exhaustive list of factors that the Board may consider in determining whether an inmate should be released on parole. The Board must consider, among other factors: facts and circumstances of the underlying offense; aggravating and mitigating factors surrounding the offense; nature and pattern of previous convictions; adjustment to previous probation, parole and incarceration; prison disciplinary history and, specifically, the commission of serious disciplinary infractions and the pattern of less serious disciplinary infractions; participation in institutional programs; statements by institutional staff, with supporting documentation, that the inmate is likely to commit another crime if released on parole; statements by the inmate reflecting on the likelihood that he or she will commit another crime; and the results of an objective risk assessment instrument. N.J.A.C. 10A:71-3.11(b).

Here, the Board considered all relevant factors and its decision denying parole is supported by substantial credible evidence. To begin with, aggravating circumstances attended Oliveria's commission of the murder, including the elderly age of the victim and the repetitive stabbing to which he was subjected. Moreover, this offense represented an escalation in the seriousness of Oliveria's previous criminal activity, for which neither prior probation, parole nor incarceration acted as a deterrent. To compound the matter, his institutional infractions during the nearly twenty-seven years of incarceration were numerous and persistent.

In addition to these objective factors, the three-member Board panel properly found that Oliveria lacked "insight" into, and minimized, his criminal actions; failed to take responsibility for his conduct; exhibited "no expression of remorse or empathy"; and has made "no attempts to address his behavior or [substance abuse] addiction[,]" having committed about eight drug-related disciplinary infractions while incarcerated. Moreover, an objective risk assessment evaluation found Oliveria posed a "high" risk to recidivate. On the other hand, the Board panel considered the mitigating circumstances that Oliveria had participated in institutional programs specific to behavior, namely the L.I.F.E. Program, and has average to above-average institutional reports. On balance, however, the Board panel found that the aggravating factors far outweighed the mitigating circumstances and that the preponderant proofs demonstrated the substantial likelihood that Oliveria would commit a crime if released on parole at this time:

[I]t is clear that the anti-social behavior that has occurred in your case, while as a member of society and as an inmate, reflects an individual who is hostile and aggressive. The only individual responsible for your maladaptive institutional behavior is yourself. Unfortunately, you do not attest to this. This leads the Board panel to believe that if released at this time, your adversarial personality aspects will only continue.

The full Board's affirmance of the panel's decision denying parole is thus supported by substantial credible evidence in the record.3

We conclude otherwise with respect to the 180-month FET. Pursuant to N.J.A.C. 10A:71-3.21(a)(1), when a Board panel denies parole to an inmate serving a sentence for murder, the standard FET is twenty-seven months. However, pursuant to N.J.A.C. 10A:71-3.21(d), a panel may establish an FET outside the standard guidelines if the standard FET is clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of criminal behavior. In imposing a 180-month FET, the Board substantially exceeded the presumptive twenty-seven month limit. In doing so, the Board simply adopted the reasoning of the three-member panel, who relied on the same considerations for denying parole, and concluded that:

setting any term less than a one hundred and eighty (180) month future parole eligibility term would be wholly inconsistent with the conclusion that, after twenty-seven (27) years of incarceration, you have not shown the requisite amount of rehabilitative progress in reducing the likelihood of future criminal activity.

We find this reasoning unpersuasive to warrant the imposition of a FET nearly seven times the presumptive term. Although the record, in our view, supports a term outside the standard guidelines due to Oliveria's lack of satisfactory progress in reducing the likelihood of future criminal behavior, we conclude a 180-month FET is manifestly excessive, even in light of the confidential material that the panel considered and we have since reviewed. Moreover, the establishment of such an inordinately lengthy FET does not properly account for the inmate's participation to date in institutional programs specific to behavior, his average to above-average institutional reports, and the prospect of rehabilitation offered thereby. Accordingly, we reverse that part of the final agency decision establishing a 180-month FET and remand to the Board to impose a term in conformity with law.

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 As amended by L. 1997, c. 213, 1, effective August 18, 1997, the Parole Act now provides that an inmate may be denied parole if the proofs before the Board "indicate[] 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 [the] conditions of parole . . . if released on parole at that time."

3 Oliveria further argues that the Board failed to provide him with a copy of his pre-parole package prior to his panel hearing and otherwise relied upon "undisclosed evidence or information" in denying parole. However, as the full Board noted, the record revealed that Oliveria was provided with a copy of his pre-parole package prior to his hearing, which he acknowledged at the hearing. Moreover, to the extent that Oliveria seeks documents that are deemed confidential, he is not entitled to those documents. See N.J.A.C. 10A:71-2.1(a)(1).