ELBERT WHITE 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NOT FOR PUBLICATION WITHOUT THE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

ELBERT WHITE,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

_________________________________

March 31, 2014

Submitted March 10, 2014 Decided

Before Judges Parrillo and Harris.

On appeal from the New Jersey State Parole Board.

Elbert White, 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 Elbert White, an inmate currently incarcerated, appeals from a final agency decision of the New Jersey State Parole Board (Board) denying him parole and establishing a thirty-six month future eligibility term (FET). We affirm.

The relevant facts are as follows. Tried by a jury, on January 18, 1985, White was convicted of murder, conspiracy to commit murder, conspiracy to commit theft, two counts of theft by deception, five counts of attempted theft by deception, two counts of forgery and tampering with evidence. An autopsy on the victim's exhumed body determined that he died of multiple intentional blows to the rear of his head, including a "moon crater" type depression, which was ruled as the cause of death. It was determined that the victim, F.P., could not have been killed by a car accident at the original scene of the offense as initially surmised. At the time of the victim's death, there were twelve insurance policies on his life, totaling $908,000, with an additional payment of $350,000 if the cause of death was accidental. White and his wife were named as beneficiaries on several of these policies.

White was sentenced to a life-term, with a mandatory minimum term of twenty-five years on the murder conviction and concurrent five-year terms on the remaining counts. The sentencing judge imposed the maximum sentence because of the nature and severity of the crime, noting that "[t]he murder was committed for profit" and "was a brutal and cruel execution of the victim[,]" who was vulnerable, lived with White, idealized White and considered White a father figure.

While incarcerated, on July 18, 1990, defendant was also convicted, after a jury trial, of tampering with a witness and conspiracy to commit perjury. According to G.M., an inmate at Trenton State Prison where White was incarcerated at the time, in August 1985, White approached G.M. and asked if he would confess to killing F.P. in exchange for the payment of money. Another inmate, R.M., was willing to confess if G.M. did not agree and in fact sent a letter of confession to White's attorney on White's behalf. For these crimes, White was sentenced to concurrent five-year terms to run consecutive to the sentence imposed on his earlier convictions.

White became eligible for parole on December 7, 2011. On July 18, 2011, a two-member Board Panel denied parole and established a thirty-six month FET, basing its decision on White's multi-crime conviction, commission of a crime while incarcerated, and insufficient problem resolution, including a lack of insight into his criminal behavior, as demonstrated by the Panel interview and documentation in the case file. Regarding mitigating factors, the Board recognized White's lack of a prior criminal record, participation in institutional programs, favorable institutional adjustment, average to above average institutional reports, participation in programs specific to behavior, minimum custody status achieved/maintained and attempt to enroll and participate in programs but was not admitted.

White appealed the Panel's decision to the full Board, which affirmed the denial of parole and the imposition of a thirty-six month FET. In doing so, the Board reasoned in part:

Your custody status and institutional adjustment are a matter of record, were noted by the Hearing Officer at the time of your initial hearing and was on file, available for review and considered at the time of your Panel hearing. In addition, the full Board finds that the Panel noted favorable institutional adjustment last infraction November 12, 1992 as a mitigating factor. Therefore, noting infraction free status would not be appropriate in your case.

The full Board finds no merit to your contention that the Panel failed to acknowledge your positive risk assessment. According to documentation in the file, your risk score is a twenty-three (23), which indicates a moderately high risk for recidivism. Therefore, the full Board concurs with the Panel's determination that your risk score is not an appropriate mitigating factor in your case.

In regards to your contention that confidential material should not have been considered in your case, the full Board notes that[,] [pursuant to] N.J.A.C. 10A:71-2.1(d)[,] . . . . the Board is not at liberty to disclose information contained in these documents. However, upon review of the confidential information, the full Board concurs with the Panel's utilization of the confidential information and the finding of the Panel in regards to said information.

Pursuant to N.J.A.C. 10A:71-3.11(b)(17), during the time of the hearing, the Panel may consider statements given by an inmate reflecting on the substantial likelihood that he will commit a new crime if released on parole. Based on your responses to questions posed by the Panel at the time of the hearing, the Panel appropriately determined that you exhibit insufficient problem resolution, specifically, that you lack insight into your criminal behavior. With regard to your specific contention that you lack insight, the Panel found that you have been involved in treatment, but have gained little insight from these

programs . . . .

On appeal, White raises the following issues:

I. ADULT PANEL COMMMITTED A DUE PROCESS PROCEDURAL ERROR WITH ITS FAILURE TO RECEIVE AS EVIDENCE THE MITIGATING FACTOR "RISK ASSESSMENT EVALUATION" WHICH WAS NOT CHECKMARKED AS A MITIGATING FACTOR OR CONSIDERED AS A FAVORABLE POSITIVE EVIDENCE WARRANTING RELEASE ON PAROLE.

II. THE ADULT PANEL OF PAROLE BOARD CONSIDERATION OF A CONFIDENTIAL REPORT WRITTEN BY ITS OWN PSYCHOLOGIST IS NOT SUPPORTED BY SUFFICIENT EVIDENCE HAVING INDICIA OF RELIABILITY AND THEREFORE WAS ARBITRARY.

III. THE ADULT PANEL OF PAROLE BOARD COMMITTED PROCEDURAL ERROR WITH ITS FAILURE TO RECEIVE AND ADJUST THE RECORD TO REFLECT THAT PETITIONER WAS INFRACTION FREE.

IV. THE ADULT PANEL OF PAROLE BOARD COMMITTED PROCEDURAL ERROR WITH ITS FAILURE [TO] NOTE AND CONSIDER AS A MITIGATING FACTOR "MINIMUM CUSTODY STATUS MAINTAINED."

V. ADULT PANEL REFERENCES OF "INSUFFICIENT PROBLEM(S) RESOLUTION" LISTED UNDER REASONS FOR DENIAL LACK SUFFICIENT EVIDENCE AND ADEQUATE FINDING OF FACT TO SUPPORT THE DENIAL OF PAROLE.

We find no merit to these contentions.

The "Parole Board['s] decisions are highly 'individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). "The New Jersey Constitution, Art. VI, sec. 5, para. 4, specifically authorizes judicial review of [the Parole Board's] determinations." Id. at 172. We must determine:

(1) whether the agency's action violates express or implied legislative policy, i.e., did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Ibid. (internal quotation marks omitted).]

"Parole Board decisions 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) (internal citations omitted). The burden is on the challenging party to show that the Board's actions were "arbitrary, unreasonable or capricious . . . ." Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994).

In addition, in reviewing the Board determination whether the standard for release has been met, "[w]e must give 'due regard' to the ability of the factfinder" with expertise in this field to judge credibility. T.H. v. Div. of Developmental Disabilities, 381 N.J. Super. 366, 381-82 (App. Div. 2005), rev'd on other grounds, 189 N.J. 478 (2007); see also Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988).

Here, because White's crimes were committed prior to August 19, 1997, pursuant to N.J.S.A. 30:4-123.53(a), the standard for parole is that the inmate shall be released on parole when eligible unless,

by a preponderance of the evidence . . . 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.[1]

This is a "highly predictive" determination, Thompson v. New Jersey State Parole Board, 210 N.J. Super. 107, 115 (App. Div. 1986) (quoting Beckworth, supra, 62 N.J. at 359), which must take into account "the aggregate of all of the factors which may have any pertinence." Beckworth, supra, 62 N.J. at 360.

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. Among the pertinent factors are "[s]tatements 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[]" as well as "any other factors deemed relevant[.]" Ibid.

Here, the Board's denial of parole was based on a proper analysis of the factors it deemed relevant and was supported by sufficient credible evidence. These factors included White's multi-crime convictions and his convictions of tampering with a witness and conspiracy to commit perjury while incarcerated. Moreover, the Board properly found White lacked sufficient problem resolution and insight into his criminal behavior, stating that "[w]hile [inmate] expresses remorse, he does not yet appear to 'own' his criminal behavior."

Contrary to White's assertions, the Board also properly considered all applicable mitigating factors, including his achievement and maintenance of minimum custody status and his favorable institutional adjustment, his last infraction having been committed on November 12, 1992. Yet, these mitigating circumstances, on balance, were far outweighed by the aforecited aggravating factors. As such, the Board was well within its discretion in concluding that there existed a substantial likelihood that White would commit a crime if released. Therefore, the denial of parole was neither arbitrary nor unreasonable and instead was supported by substantial credible evidence.

These same considerations support imposition of the thirty-six month FET, which is nine months more than the twenty-seven-month presumptive term for murder, N.J.A.C. 10A:71-3.21(a)(1). However, pursuant to N.J.A.C. 10A:71-3.21(c), the FET "may be increased or decreased by up to nine 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 adjustment." Here, given the nature and severity of the crimes involved here, as well as the personal characteristics of White, who has yet to develop meaningful insight into his criminal behavior and attain sufficient progress in problem resolution, the Board's increased adjustment of the standard FET by nine months is well supported in the record. N.J.A.C. 10A:71-3.21(c).

1 As amended in 1997, L. 1997, c. 213, 1, the Parole Act now provides that an inmate may be denied parole if the evidence before the Board "indicates by a preponderance of the evidence

. . . that there is a reasonable expectation that the inmate will violate [the] conditions of parole . . . if released on parole at that time."

In respondent's brief, the Attorney General acknowledges that it is the standard contained in the statute before the August 19, 1997 amendments that determines whether appellant should have been released on parole. See N.J.A.C. 10A:71-3.10(a).