E. LEE 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NOT FOR PUBLICATION WITHOUT THE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-0897-14T1

E. LEE WHITE,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

_______________________________________

March 11, 2016

Submitted February 22, 2016 Decided

Before Judges Sabatino and O'Connor.

On appeal from the New Jersey State Parole Board.

E. Lee White, appellant pro se.

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

PER CURIAM

Petitioner E. Lee White appeals a final agency decision of the New Jersey Parole Board (Board) denying his application for parole and imposing a ninety-six-month future eligibility term (FET). We affirm.

I

In January 1985 petitioner was convicted by a jury of murder and related crimes and, in February 1985, was sentenced to a life term of imprisonment with a mandatory term of twenty-five years. While incarcerated, petitioner told an inmate he had solicited another to claim responsibility for the victim's death. In July 1990, a jury convicted petitioner of conspiracy to commit perjury and tampering with a witness, for which he was sentenced to an aggregate term of imprisonment of five years, to run consecutively to the sentences imposed in 1985.

In August 2013 petitioner became eligible for parole for a third time. A two-member Board panel considered but denied him parole because he had been incarcerated for a multi-crime conviction; continued to lack insight into his motive for committing murder and, further, minimized his conduct; and committed a crime while incarcerated. The panel referred the matter to a three-member Board panel for the establishment of a FET. See N.J.A.C. 10A:71-3.21.

In October 2013, the three-member Board panel found a ninety-six month FET more appropriate than the presumptive term of twenty-seven months, see N.J.A.C. 10A:71-3.21(a), because a FET of twenty-seven months would be "wholly inconsistent with the conclusion that thirty-three (33) years after this murder, [petitioner failed to show] the requisite amount of rehabilitative progress in reducing the likelihood of future criminal activity." The panel noted petitioner remained unable to identify the cause of his criminal behavior and thus had failed to garner any insight into his "violent criminal personality characteristic." The panel noted that instead of confronting the facts as proven at trial, petitioner adhered to a version of events that downplayed his culpable actions. The panel concluded that until he acknowledged the facts as proven at trial, petitioner will not be able to confront the root causes of his conduct. While the panel acknowledged he participated in rehabilitative programs, petitioner still needed additional counseling to address the antisocial personality traits that drove him to engage in "such extreme criminal acts." In the final analysis, the panel found petitioner remained a substantial threat to public safety.

The panel also explicitly noted that when it contemplated the imposition of a ninety-six-month FET, it took into consideration the commutation, work and minimum custody credits petitioner had earned and will continue to earn. The panel was aware that even if it imposed a ninety-six-month FET, petitioner had enough credits to be paroled in July 2019 and, if petitioner's pattern of earning credits continued as they had in the past, he would be paroled in early 2018.

Petitioner appealed but, in a comprehensive eight-page written decision, the full Parole Board affirmed the decision of the two- and three-member panels, concluding the preponderance of the evidence indicated there was a substantial likelihood petitioner would commit a crime if released on parole at that time. The Parole Board also concurred with the determination that a FET of ninety-six months was appropriate.

II

On appeal, White raises the following arguments for our consideration

POINT I THE PAROLE BOARD'S DETERMINATION TO DENY PAROLE TO APPELLANT WHITE IS UNSUPPORTED BY THE REQUIRED PREPONDERANCE OF CREDIBLE EVIDENCE THAT DEMONSTRATES A SUBSTANTIAL LIKELIHOOD THAT HE WILL COMMIT A CRIME IF RELEASED ON PAROLE.

POINT II THE PAROLE BOARD DISREGARDED APPLICABLE STATUTES AND REGULATIONS WHEN IT, WITHOUT ESTABLISHING INAPPROPRIATENESS OF PRESUMPTIVE SCHEDULED FET DUE TO INMATE'S LACK OF SATISFACTORY PROGRESS IN REDUCING LIKELIHOOD OF FUTURE CRIMINALITY, REFERRED WHITE'S CASE TO THE THREE-MEMBER PANEL FOR IMPOSITION OF AN EXTENDED FET TERM.

POINT III THE ARBITRARY IMPOSITION OF A 96 MONTH FET IS A DENIAL OF DUE PROCESS IN VIOLATION OF THE NEW JERSEY AND UNITED STATES CONSTITUTIONS.

POINT IV THE PUNITIVE, RETRIBUTION, AND DETERRENCE ASPECT OF COURT IMPOSED 25-YEAR MANDATORY MINIMUM SENTENCE HAD BEEN SATISFIED UPON APPELLANT'S COMPLETION OF TWENTY-FIVE YEARS.

Our standard of review of administrative decisions of the Parole Board is limited, "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). Because our scope of review is narrow, the determination that "there is a substantial likelihood an inmate will commit another crime if released" must be affirmed unless the Board's decision was unreasonable, unsupported by credible evidence in the record or contrary to law. Ibid. (citation and internal quotation marks omitted).

In a case such as this, 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). N.J.A.C. 10A:71-3.21(d) provides "[a] three-member Board may establish a future parole eligibility date which differs from that required by the provisions of [N.J.A.C. 10A:71-3.21](a)1 . . . if the future parole eligibility date which would be established pursuant to such subsection[] is clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior." N.J.A.C. 10A:71-3.21(d).

After reviewing the record and the applicable legal principles, we conclude petitioner's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D). The Board has the authority to determine whether there is a substantial likelihood an inmate will commit another crime if released on parole. In applying the standard of review to the record here, we conclude the Parole Board's decision did not constitute an abuse of discretion, as the record fails to disclose a basis for concluding the final decision was "arbitrary, capricious or unreasonable." Trantino V, supra, 166 N.J. at 171-72.

Affirmed.

1 N.J.A.C. 10A:71-3.21(a)(1) establishes a future parole eligibility schedule of an additional twenty-seven months for a prison inmate serving a sentence for murder.