PATRICK FRANCIS 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NOT FOR PUBLICATION WITHOUT THE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

PATRICK FRANCIS,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

___________________________________

September 8, 2014

Submitted August 6, 2014 Decided

Before Judges Waugh and Accurso.

On appeal from the New Jersey State Parole Board.

Patrick Francis, appellant pro se.

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

PER CURIAM

Appellant Patrick Francis appeals the final administrative action of the New Jersey Parole Board (Board), denying parole and setting a twenty-four-month future eligibility term (FET). We affirm.

We discern the following facts and procedural history from the record on appeal. Francis was convicted of aggravated manslaughter, unlawful possession of a weapon, aggravated assault (second- and third-degree), unlawful taking of a means of conveyance, and possession of a weapon for an unlawful purpose. In June 1998, he was sentenced to an aggregate term of thirty years and six months, with a mandatory-minimum term of fifteen years and two months. He is currently incarcerated at New Jersey State Prison in Trenton.

Francis became eligible for parole for the first time in September 2012. Following an initial hearing in August, the hearing officer referred the matter to a two-member panel of the Board. That hearing was held on August 23. The panel denied parole and established a twenty-four-month FET.

Francis appealed to the full Board, which affirmed the panel's decision. The Board explained its reasons as follows:

The issues you submitted were presented to the full Board at its meeting, conducted on January 23, 2013. Having considered your claims, the full Board finds that the Adult Panel noted as reasons for parole denial: prior criminal record is noted; nature of criminal record increasingly more serious; currently incarcerated for a multi crime conviction; prior opportunity on probation terminated for the commission of a new offense; prior opportunity on probation [has] failed to deter criminal behavior; prior opportunity on probation [has] been violated in the past; institutional infractions are numerous, serious and resulted in a loss of commutation time and Administrative Segregation (last infraction committed on December 27, 2006 in violation of *202, Pos./Intro. Weapon). Furthermore, based on your responses to questions posed by the Panel at the time of the hearing and documentation in the case file, the Panel determined that you exhibit insufficient problem resolution, specifically, that you lack insight into your criminal behavior and have not sufficiently addressed your substance abuse problems. The Panel also noted, "inmate is beginning to understand his criminal behavior but the length of his parole leaves concerns." The Panel further noted the commission of a crime while on bail and the risk of assessment evaluation and score of 28, which indicates a medium risk for recidivism.

In addition, the Adult Panel noted as mitigation: participation in programs specific to behavior; participation in institutional programs; institutional adjustment has been favorable (last infraction December 27, 2006); and attempts made to enroll and participate in programs but was not admitted.

With regard to your contentions, the full Board finds that pursuant to N.J.A.C. 10A:71-3.11(c), the hearing officer or Board Panel is required to note your detainer, however, it shall not be used as a basis for denial of parole. The full Board finds that the Adult Panel did not base their decision to deny parole on the immigration detainer, nor are they mandated to release you to federal authorities for deportation. The same standards used to determine parole release to the community also apply to parole release to detainers. Pursuant to N.J.A.C. 10A:71-3.10(b), the Panel is required to determine if there is a substantial likelihood that you would commit a crime if released on parole at this time. The full Board finds that the existence of a deportation detainer does not reduce the substantial likelihood that you would commit a crime, if released on parole and, more significantly, is not a sufficient basis for the full Board to consider modifying the decision of the Adult Panel.

With regard to your contention that the Panel failed to acknowledge your program participation, the full Board finds that the Panel reviewed your entire record in rendering its decision. Your program participation and institutional adjustment are a matter of record, were noted on the Case Summary at the time of your initial Hearing and were considered by the Panel. Your completion of Anger Management, SEALL, and Thinking for a Change, Parenting and STARS was documented in the pre-parole reports and the Institutional Progress Report. Based on the information on record, the Panel appropriately noted as mitigation on the Notice of Decision, participation in programs specific to behavior; participation in institutional programs; institutional adjustment had been favorable (last infraction December 27, 2006); and attempts made to enroll and participate in programs but was not admitted. As a result, the full Board finds that the Panel did not assess your case solely on the negative aspects in the record, rather, the full Board finds that the Panel based its decision on the entire record governed by the factors set forth in the statutory requirements and N.J.A.C. 10A:71-3.11. Therefore, the full Board finds your contention to be without merit.

Based upon consideration of the facts cited above, the full Board finds 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 pursuant to N.J.S.A. 10A:71-3.1(f). Additionally, in assessing your case, the full Board concurs with the determination of the Adult Panel 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 followed.

Francis raises the following arguments on appeal:

POINT I: THE APPELLANT SUBMIT[S] THAT WHEN THE FULL PANEL BOARD DENIED HIS PAROLE AND ESTABLISHED A 24 MONTH (F.E.T.) HE WAS DENIED THE RIGHT TO DUE PROCESS WHERE THE BOARD RELIED ON HIS PRIOR CRIME RATHER THAN HIS REHABILITATION WHILE INCARCERATED. (The New Jersey Parole Board's Decision Was Arbitrary and Capricious)

POINT II: THE APPELLANT ARGUES THAT FURTHER FINDINGS BY THE PAROLE BOARD THAT DENIAL OF FRANCIS['S] PAROLE IS BASED ON THE LENGTH OF TIME HE WOULD HAVE ON PAROLE LEAVES CONCERN IS AN ERROR BY THE TRIAL COURT'S FAILURE TO PROPERLY RESOLVE THE MATTER BETWEEN DEFENDANT AND STATE DURING THE JOHNSON HEARING IN VIOLATION OF R. 3:21-1 AND CONTRARY TO THE RULING BY THE APPELLATE DIVISION IN A-3751-04T4.

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. 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)) (internal quotation marks omitted).

In cases where the crime for which an inmate is incarcerated took place before August 19, 1997, "the Board panel shall determine whether . . . by a preponderance of the evidence . . . there is a substantial likelihood that the inmate will commit a crime under the laws of the State of New Jersey if released on parole." N.J.A.C. 10A:71-3.10(a); see also N.J.S.A. 30:4-123.53(a) (part of the Parole Act of 1979). "[T]he Board [must] focus its attention squarely on the likelihood of recidivism." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 565 (App. Div. 2002).

N.J.A.C. 10A:71-3.11 provides as follows:

(a) Parole decisions shall be based on the aggregate of all pertinent factors, including material supplied by the inmate and reports and material which may be submitted by any persons or agencies which have knowledge of the inmate.

(b) The hearing officer, Board panel or Board shall consider the following factors and, in addition, may consider any other factors deemed relevant:

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.

7. Pattern of less serious disciplinary infractions.

8. Participation in institutional programs which could have led to the improvement of problems diagnosed at admission or during incarceration. This includes, but is not limited to, participation in substance abuse programs, academic or vocational education programs, work assignments that provide on-the-job training and individual or group counseling.

9. Statements by institutional staff, with supporting documentation, that the inmate is likely to commit a crime if released; 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.

10. Documented pattern of relationships with institutional staff or inmates.

11. Documented changes in attitude toward self or others.

12. Documentation reflecting personal goals, personal strengths or motivation for law-abiding behavior.

13. Mental and emotional health.

14. Parole plans and the investigation thereof.

15. Status of family or marital relationships at the time of eligibility.

16. Availability of community resources or support services for inmates who have a demonstrated need for same.

17. Statements by the inmate reflecting on the likelihood that he or she will commit another crime; the failure to cooperate in his or her own rehabilitation; or the reasonable expectation that he or she will violate conditions of parole.

18. History of employment, education and military service.

19. Family and marital history.

20. Statement by the court reflecting the reasons for the sentence imposed.

21. Statements or evidence presented by the appropriate prosecutor's office, the Office of the Attorney General, or any other criminal justice agency.

22. Statement or testimony of any victim or the nearest relative(s) of a murder/manslaughter victim.

23. The results of the objective risk assessment instrument.

Having reviewed Francis's arguments, the record on appeal, and the applicable law, we find no basis to reverse the Parole Board's decision denying parole. An extensive discussion is not required. R. 2:11-3(e)(1)(D), -3(e)(2). We add only the following.

Although the panel's and the Board's decisions did not specifically discuss or analyze the weight accorded to each of the N.J.A.C. 10A:71-3.11 factors, we nevertheless conclude that the applicable factors were taken into account in reaching the decisions. The Board's conclusion that Francis has made progress but requires further time in programs offered by the Department of Corrections finds support in the record. We agree with the Board that the pending immigration detainer does not, by itself, warrant parole upon first eligibility for release to the Department of Homeland Security.

Affirmed.