HARVEY COLVIN 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NOT FOR PUBLICATION WITHOUT THE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-5278-10T1

HARVEY COLVIN,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

_______________________________________

August 20, 2012

a

SubmittedAugust 13,2012 -Decided

Before Judges Ashrafi and Hayden.

On appeal from the New Jersey State

Parole Board.

Harvey Colvin, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Inmate Harvey Colvin, who is serving a sentence for aggravated manslaughter and other charges, appeals from the May 25, 2011 final decision of the New Jersey State Parole Board denying him parole and confirming a 120-month future eligibility term (FET) for parole. We affirm.

The conviction for which Colvin is serving a sentence of fifty years imprisonment arose from the killing of his pregnant girlfriend in 1993. Colvin was living with a different woman and their child at the same time that he was dating the victim. When the victim told Colvin she was pregnant with his child, he became upset and wanted her to get an abortion. She refused. They argued while Colvin was driving her car and, according to police investigative reports, he struck her in the head with a blunt object and pushed her out of the car. He then drove the car over her and dragged her some fifty feet underneath the car before it came to a stop.

After the victim was killed, Colvin enlisted the help of a friend to bury her body in a secluded place. The friend participated in the plan for a while but then had misgivings and went to the police two days later. Colvin had paid the friend $100 to conceal the crime, but the friend revealed Colvin's involvement to the police. When Colvin was interviewed by the police, he gave a false statement, which included a false alibi. He had also paid another person to lie to the police to support his alibi.

After being charged, Colvin claimed that the victim died after he accidentally backed over her following an argument. His version was contradicted by physical evidence, including front-end damage to the car and blood stains on the front bumper.

Upon being indicted for murder, kidnapping, witness tampering, and hindering apprehension, Colvin negotiated a plea agreement and pleaded guilty to aggravated manslaughter and several additional charges. On December 22, 1994, he was sentenced to an aggregate prison term of fifty years with fifteen years of parole ineligibility.

A two-member panel of the Parole Board denied Colvin's first opportunity for parole on May 12, 2008, and the panel set an FET of thirty-six months. At his next parole hearing on May 18, 2010, a two-member panel again denied parole and this time referred the matter to a three-member panel of the Board to set an FET. See N.J.A.C. 10A:71-3.21(d)(1). On July 14, 2010, the three-member panel issued its notice of decision setting a 120-month FET. Colvin filed an administrative appeal to the full Parole Board. On December 8, 2010, the three-member panel issued a written decision explaining its reasons for imposing the 120-month FET. On May 25, 2011, the full Board denied Colvin's appeal by written decision. This appeal followed.

Before us, Colvin argues:

THE DECISION BY THE PAROLE BOARD TO DENY APPELLANT PAROLE AND TO IMPOSE AN EXTENDED, ONE-HUNDRED-TWENTY (120) MONTH FUTURE ELIGIBILITY TERM IS ARBITRARY, CAPRICIOUS AND MUST BE REVERSED.

Our standard of review of administrative decisions of the Parole Board is limited, and it is "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 (quoting Greenholtz v. Inmates of Neb. Penal & 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, certif. denied, 63 N.J. 583 (1973)). Consequently, we may reverse the Parole Board's decision only if it is "arbitrary and capricious." Ibid. We do not disturb the Board's factual findings 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)).

Applying that deferential standard of review, we find no basis to disturb the Board's decision in this case. First, we address without extensive discussion the denial of parole. R. 2:11-3(e)(1)(d), -3(e)(2). The Board's decision to deny parole was not arbitrary and capricious and was supported by ample evidence, including that Colvin is serving consecutive sentences for several crimes, he had been found guilty of institutional infractions, he exhibited insufficient problem resolution and lacked insight into his criminal behavior, he minimized his conduct that resulted in the convictions, and he had not adequately addressed his substance abuse problem. See N.J.A.C. 10A:71-3.11.

Colvin's primary focus on appeal is the imposition of the 120-month FET. He contends that the Board was bound by statute to set an FET of no more than thirty-six months.

The relevant statute, N.J.S.A. 30:4-123.56, was amended twice during a sixteen-month period. Prior to enactment on January 18, 2010, of L. 2009, c. 330, 6, the pertinent parts of the statute stated:

a. The board shall develop a schedule of future parole eligibility dates for adult inmates denied release at their eligibility date. In developing such schedule, particular emphasis shall be placed on the severity of the offense for which he was denied parole and on the characteristics of the offender, such as, but not limited to, the prior criminal record of the inmate and the need for continued incapacitation of the inmate.

b. If the release on the eligibility date is denied, the board panel which conducted the hearing shall refer to the schedule published pursuant to subsection a., and include in its statement denying parole notice of the date of future parole consideration. If such date differs from the date otherwise established by the schedule, the board panel shall include particular reasons therefor. . . .

The January 18, 2010 amendment added the following language to both of these subsections of the statute:

however, 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.

[L. 2009, c. 330, 6.]

This amendment took effect on August 1, 2010. Id. at 12.

On May 9, 2011, however, just nine months and a few days after its effective date, the quoted amendment was repealed and the statute was restored in both subsections to the previously-quoted language. L. 2011, c. 67, 1 (effective May 9, 2011). Thus, there was a statutory prohibition in effect against an FET longer than three years only from August 1, 2010, to May 9, 2011.

Defendant makes two legal arguments regarding the temporary statutory provision: that the prohibition of an FET longer than three years applies to his FET because the three-member panel issued its written decision on December 8, 2010, while the amendment was in effect, and that application of the 2011 repealing amendment to his FET would violate the ex post facto clauses of the federal and State constitutions, U.S. Const. art. I, 10, cl. 1; N.J. Const. art. IV, 7, 3.

We reject the first argument because the three-member panel issued its notice of decision setting the 120-month FET on July 14, 2010, before the effective date of the repealed statutory amendment. The December 8, 2010 written decision of the panel was a supplementary explanation of the reasoning for the earlier decision. Had the statutory amendment remained in effect, we would consider whether such an overlapping of the effective date of legislation with the multi-step decision-making of the administrative agency implicated questions as to applicability of the quoted amendment. Since the Legislature repealed the amendment within a matter of months, we see no need to decide that question as a matter of statutory application or administrative law.

We also reject Colvin's ex post facto argument. Changes in the frequency of parole hearings during a term of imprisonment do not violate constitutional ex post facto clauses. Cal. Dept. of Corr. v. Morales, 514 U.S. 499, 511-13, 115 S. Ct. 1597, 1604-05, 131 L. Ed. 2d 588, 598-99 (1995); see State v. Muhammad, 145 N.J. 23, 56-57 (1996). Moreover, the parole statute that was in effect at the time of the commission of the crimes in 1993 and Colvin's sentencing in 1994 did not contain a three-year limitation on an FET.

In sum, we reject Colvin's arguments that the short-lived statutory amendment required as a matter of statutory or constitutional law that the Board set an FET of no more than three years.

Next, Colvin argues that the 120-month FET was arbitrary and capricious because it was imposed in violation of regulatory provisions and was otherwise not supported by the factual record presented for the parole hearing.

Pursuant to N.J.A.C. 10A:71-3.21(a)(1), a standard FET of twenty-seven months applies when the Board denies parole to an inmate serving a sentence for manslaughter. Under N.J.A.C. 10A:71-3.21(c), the standard FET can be increased or decreased by nine months, that is, within a range of eighteen to thirty-six months, "when, in the opinion of the Board panel, 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 adjustment." But in setting an FET, the Board is not limited in all cases to that range of eighteen to thirty-six months.

Pursuant to N.J.A.C. 10A:71-3.21(d), a panel may establish an FET outside the range if the standard FET "is clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior." In making the determination to increase the FET beyond the guidelines range, the panel must consider the same list of factors that must be considered in deciding whether to grant or deny parole. See N.J.A.C. 10A:71-3.11(b).

The three-member panel took appropriate factors into consideration, stating that the reasons for imposing a 120-month FET were that Colvin:

was unable to identify the motivation and causes of his violent and anti-social behavior when he killed the victim and therefore lacked insight into his criminal personality characteristics;

failed to address appropriately and adequately the causes of his criminal behavior through specific program participation in prison or through other methods;

continued maladaptive behavior as evidenced by committing a serious weapons infraction while in prison; and

continued to minimize his behavior.

These findings are supported by the record before the panel.

Specifically as to the commission of a weapons infraction in prison, which Colvin contends was wrongly used by the panel and the Board to increase the FET, Colvin's appeal of the finding of guilt on that prison infraction was rejected by another panel of this court. Colvin v. N.J. Dep't of Corr., No. A-5878-08 (App. Div. Sept. 24, 2010) (slip op. at 1-2). Therefore, the infraction was properly considered by the Parole Board in setting the FET.

We do not substitute our judgment for that of the Board with respect to denial of parole or the setting of an FET. See N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988); see also In re Polk License Revocation, 90 N.J. 550, 578 (1982). The Board applied the correct legal standard and considered the relevant factors under N.J.A.C. 10A:71-3.11(b) in deciding to deny parole and to set a 120-month FET. On the record presented, its decision was not arbitrary or capricious. See McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002).