RONALD SLUSHER 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NOT FOR PUBLICATION WITHOUT THE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-0

RONALD SLUSHER,

Appellant,

v.

NEW JERSEY STATE

PAROLE BOARD,

Respondent.

___________________________

July 3, 2014

Submitted: June 24, 2014 Decided:

Before Judges Ashrafi and Haas.

On appeal from the New Jersey State Parole Board.

Ronald Slusher, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Shirley P. Dickstein, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Ronald Slusher appeals from the February 27, 2013 final decision of the New Jersey State Parole Board denying him parole and establishing a 108-month future eligibility term (FET). We affirm.

In 1995, defendant and his adult son approached the victim as he and another man were loading wood into a car. Defendant struck the victim with the car door, causing him to fall to the ground. Defendant and his son then got into the car and defendant drove away. Police apprehended defendant and his son a short time later. After his arrest, defendant threatened a police officer. Following a jury trial, defendant was convicted in 1996 of first-degree carjacking, N.J.S.A. 2C:15-2a(1); third-degree burglary, N.J.S.A. 2C:18-2; and third-degree terroristic threats, N.J.S.A. 2C:12-3a. The trial judge granted the State's motion for an extended prison term and imposed a fifty-five-year aggregate term, with seventeen and one-half years of parole ineligibility.

Appellant became eligible for parole on July 10, 2012. A hearing officer referred the matter to a two-member Board panel. After its review, the panel denied parole. The panel based its decision upon appellant's incarceration for a multi-crime conviction; his extensive and repetitive prior criminal record; the increasingly serious nature of his offenses; and his commission of several institutional infractions. The panel also considered several mitigating factors, including appellant's participation in some institutional programs. The panel referred appellant's case for a hearing before a three-member Board panel and recommended the imposition of an FET beyond the twenty-seven-month term specified under the administrative guidelines. See N.J.A.C. 10A:71-3.21.

On June 28, 2012, the three-member panel established a 108-month FET. In a thorough written decision, the panel fully explained the basis for its decision. The panel noted that appellant's "prior offense record is both extensive and repetitive." He had "previously been convicted of a litany of property offenses including several instances of Breaking & Entering, Larceny, Forgery and a prior Armed Robbery." Appellant "incurred multiple incarcerations" over the thirty-five years prior to the offenses for which he now sought parole, and was afforded "several opportunities on community supervision, including among them, at least one probationary term and multiple paroles."

Although the panel noted that most of appellant's offenses "were non-violent property-related crimes[,]" it found that his "multi-crime conviction" for carjacking, burglary and terroristic threats in 1995 demonstrated he was "capable of committing crimes of a more serious nature."

Appellant committed three institutional infractions during his incarceration. The panel found that "[w]hile these infractions were of a less serious variety than asterisk [more serious] offenses, they still demonstrate a continued inability on [appellant's] part to adhere to the expectations and rules of society."

The panel observed that appellant lacked insight into his criminal behavior. He explained his "lifetime of criminal activity" as simply "a lot of bad choices in my life." Appellant blamed his son for the 1995 offenses and asserted he only took the car because he was attempting to prevent his son from stealing the vehicle. He also downplayed the threats he made to the police officer, alleging he was "distraught over the way police . . . 'were questioning and messing with my son[.]'" Appellant's "propensity to alter the true facts and circumstances of [his] case" led the panel to conclude that he had "no insight into the underlying motivations to [his] anti-social criminal behavior." The panel found that appellant also failed to address his acknowledged substance abuse problem and noted he had "seemingly taken little programming and gained little insight into the root causes of this troubling aspect of [his] criminality."

The panel assessed several mitigating factors, including appellant's "completion of the STARS Reentry program, [his] on-going participation in the AA-program and [his] previous participation in Mental Health Counseling in 2007." The panel also thoroughly reviewed appellant's April 16, 2012 "Letter of Mitigation" in which he noted he was now sixty-six years old and had "changed [his] way of thinking" as a result of his incarceration.

Based upon the findings expressed in its decision, the panel established an FET term of 108 months. The panel explained that setting a lesser FET "would be wholly inconsistent with the conclusion that, after seventeen . . . years of incarceration, [appellant has] not shown the requisite amount of rehabilitative progress in reducing the likelihood of future criminal activity."

Appellant administratively appealed the three-member panel's decision and, on February 27, 2013, the full Board concurred with the panel's determination and sustained both the denial of parole and the 108-month FET. This appeal followed.

On appeal, appellant contends the Board's "decision to establish a [108-month FET] is arbitrary and capricious;" "the Board ignored information" in the record; "the panels and Board did not consider [appellant's] rehabilitation;" and "the [Board's] decision violates the Constitution." We disagree.

Our standard of review of administrative decisions by the Parole Board is limited to determining whether the Board abused its discretion. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 199-200 (2001) ("Trantino V"). Administrative decisions of the Board are "grounded in strong public policy concerns and practical realities." Id. at 200. "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 Parole 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., 154 N.J. 19, 24 (1998) ("Trantino IV")). We will not second-guess the Parole 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).

Applying this deferential standard of review, we discern no basis to disturb the Board's decision to deny parole and establish a 108-month FET. The Board's decision, which adopted the findings of the three-member panel, was supported by substantial evidence in the record and was neither arbitrary nor capricious. The Board fully considered appellant's contentions, which mirror those he raises on appeal, and properly concluded "that a preponderance of [the] evidence indicates that there is a substantial likelihood that [appellant] would commit a crime if released on parole at this time." Appellant's arguments do not warrant additional discussion. R. 2:11-3(e)(1)(D) and (E). We affirm substantially for the reasons set forth by the Board in its February 27, 2013 decision.

Affirmed.