KHALID MUJAHIDDEEN 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NOT FOR PUBLICATION WITHOUT THE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

KHALID MUJAHIDDEEN, a/k/a

CURTIS JENKINS,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

________________________________

August 30, 2016

Submitted August 9, 2016 Decided

Before Judges Sabatino and Gilson.

On appeal from the New Jersey State Parole Board.

Khalid Mujahiddeen, appellant pro se.

Christopher S. Porrino, 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 Khalid Mujahiddeen appeals from a September 24, 2014 final agency decision of the Parole Board denying him parole and imposing a 180-month future eligibility term (FET). We affirm the denial of parole, but reverse the imposition of the 180-month FET and remand for a new FET determination.

On January 12, 1984, appellant and two co-defendants forcefully entered a Jersey City apartment. Once inside the apartment, appellant, who was armed with a sawed-off shotgun, fatally shot and killed the resident. The three intruders searched the victim's bedroom, removed money from the victim's pants, and fled the scene.

After his arrest and indictment, appellant pled guilty to first-degree felony murder, N.J.S.A. 2C:11-3(a)(3), and first-degree conspiracy to commit armed robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2. Appellant was sentenced to life imprisonment with thirty years of parole ineligibility for the murder conviction and a concurrent term of ten years for the conspiracy conviction.

Appellant became eligible for parole for the first time in 2014. A two-member panel denied parole and referred the matter to a three-member panel to consider the imposition of an FET outside the administrative guidelines. The three-member panel imposed a 180-month FET and issued a ten-page written explanation of its decision.

Appellant administratively appealed that decision, and on September 24, 2014, the full Board affirmed both the denial of parole and the 180-month FET. Appellant now appeals from the full Board's final agency decision.

On this appeal, appellant, who is self-represented, raises five arguments: (1) the denial of parole subjects him to a punitive sentence equivalent to having the conspiracy charge run consecutive to the murder charge, (2) his record supports parole, (3) the Board "arbitrarily selected [evidence] to support a desired result," (4) a 180-month FET was excessive, and (5) a 180-month FET is unconstitutional.

Our standard of review for Board decisions is limited and "grounded in strong public policy concerns and practical realities." Trantino v. N.J. State Parole Bd., 166 N.J. 113, 200 (2001). "To a greater degree than is the case with other administrative agencies, the Parole Board's decision-making function involves individualized discretionary appraisals." Id. at 201 (citing Beckwith v. N.J. State Parole Bd., 62 N.J. 348, 358-59 (1973)). Accordingly, our courts "may overturn the Parole Board's decision only if they are arbitrary and capricious." Ibid. With respect to the Board's factual findings, we do not disturb them if they "could reasonably have been reached on sufficient credible evidence in the whole record." Hare v. N.J. State Parole Bd., 368 N.J. Super. 175, 179 (App. Div.) (quoting Trantino, supra, 166 N.J. at 172), certif. denied, 180 N.J. 452 (2004). We accord such deference because "[t]he decision of a parole board involves 'discretionary assessment[s] of a multiplicity of imponderables . . . .'" Trantino, supra, 166 N.J. at 201 (second alteration in original) (citing Greenholtz v. Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1, 10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979)).

A Board decision to grant or deny parole for crimes committed before August 1997 turns on whether there is a "substantial likelihood" the inmate will commit another crime if released. N.J.S.A. 30:4-123.53(a) (1979), amended by L. 1997, c. 213, 1; N.J.S.A. 30:4-123.56(c) (1979), amended by L. 1997, c. 213, 2; Williams v. N.J. State Parole Bd., 336 N.J. Super. 1, 7 (App. Div.), certif. denied, 165 N.J. 523 (2000); N.J.A.C. 10A:71-3.10(a). The Board must consider the enumerated factors in N.J.A.C. 10A:71-3.11(b)(1)-(23) in making its decision. The Board, however, is not required to consider each and every factor; rather, it should consider those applicable to each case. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 561 (App. Div. 2002).

Having reviewed the record in light of these well-established standards, we affirm the Board's denial of parole. Appellant's parole eligibility was evaluated by the full Board in a written decision. The Board adopted the determinations made by the two-member panel, which identified a number of reasons for its decision, including appellant's prior criminal record, that prior incarcerations had not deterred his criminal activities, that he was serving time for multiple criminal convictions, that appellant lacked insight concerning his criminal behavior, and that he "continued to minimize his criminal thinking and behavior that led to his incarceration." All of these findings are relevant factors under N.J.A.C. 10A:71-3.11(b). There is sufficient credible evidence in the record supporting these findings, and we discern nothing arbitrary or capricious in the Board's decision to deny parole.

Appellant's argument that he should be granted parole because he has served the punitive aspect of his sentence by completing the mandatory minimum of his life sentence misses a critical step. See Kosmin v. N.J. State Parole Bd., 363 N.J. Super. 28, 40-41 (App. Div. 2003). Although an inmate has "a constitutionally protected right to parole" after the punitive phase of his or her sentence, the State nonetheless has an opportunity to show that he or she failed to satisfy the rehabilitative aspect encompassed by the "substantial likelihood" of recidivism test under N.J.S.A. 30:4-123.53(a) (1979). Trantino, supra, 166 N.J. at 197; see also Kosmin, supra, 363 N.J. Super. at 40-41. As we have already discussed, we find nothing arbitrary or capricious in the Board's conclusion that appellant here presented "a substantial likelihood that [he] will commit a crime . . . if released on parole." See N.J.S.A. 30:4-123.53(a) (1979).

After denying parole the Board must establish an FET. N.J.A.C. 10A:71-3.18(a)(2). When the Board denies parole for an inmate serving a life sentence, the standard eligibility term is twenty-seven months. N.J.A.C. 10A:71-3.21(a)(1). The Board, however, may exceed the FET guidelines if it determines that the presumption of twenty-seven months 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).

Here, there was substantial credible evidence in the record for the Board to conclude that the presumptive twenty-seven-month FET was "clearly inappropriate." Specifically, the Board focused on three issues: (1) appellant's "record of institutional infractions and noted . . . infractions in, 2004 for Fighting and 2007 for Use of narcotic paraphernalia / drugs," (2) the two-member panel's finding that appellant felt he only "accidentally killed the victim and disown[ed] any role [he] had in the conspiracy other than carrying the gun," and (3) appellant's failure to gain insight. The Board explained that these reasons demonstrated that appellant had "not shown the requisite amount of rehabilitative progress," which warranted departing from the FET guidelines.

The Board went on to explain that appellant's 180-month FET would be reduced by applicable amounts of commutation credit, earned work credit, and earned minimum custody credit. At the time that the three-member panel imposed the 180-month FET, appellant had sufficient credits so that his next parole eligibility date would be August 2024. The Board also noted that with additional credits, appellant might be eligible for parole in 2022.

The Board did not, however, articulate why these reasons mandated an FET nearly seven times the presumptive FET. "While we must defer to the agency's expertise, we need not surrender to it." N.J. Chapter of the Nat'l Ass'n of Indus. & Office Parks v. N.J. Dep't of Envtl. Prot., 241 N.J. Super. 145, 165 (App. Div.), certifs. denied, 122 N.J. 374 (1990). This is particularly true when the agency fails "to address critical [legal or factual] issues, or to analyze the evidence in light of those issues." Green v. State Health Benefits Comm'n, 373 N.J. Super. 408, 415 (App. Div. 2004). "Instead, we insist that the agency disclose its reasons for any decision, even those based upon expertise, so that a proper, searching, and careful review by this court may be undertaken." Balagun v. N.J. Dep't of Corr., 361 N.J. Super. 199, 203 (App. Div. 2003). Indeed, we have stated that

[i]t is, of course, elementary that no matter how great a deference the court is obliged to accord the administrative determination which it is being called upon to review, it has no capacity to review at all unless there is some kind of reasonable factual record developed by the administrative agency and the agency has stated its reasons grounded in that record for its action.

[State v. Atley, 157 N.J. Super. 157, 163 (App. Div. 1978); see also Bailey v. Bd. of Review, 339 N.J. Super. 29, 33 (App. Div. 2001).]

We require an explanation of the agency's reasoning because it is "[o]ne of the best procedural protections against arbitrary exercise of discretionary power." Monks v. N.J. State Parole Bd., 58 N.J. 238, 245 (1971). Thus, a decision without an explanation as to how the agency reached its result is arbitrary and capricious. See Mejia v. N.J. Dep't of Corr., ___ N.J. Super. ___, ___ (App. Div. 2016) (slip op. at 14).

Here, the Board did not articulate a reason for why it imposed a 180-month FET, as opposed to a 48-month FET or a 72-month FET or any other length of FET. Instead, the Board reiterated the reasons justifying the departure from the presumed 27-month FET. The Board did not, however, connect those reasons to the length of the FET. Specifically, the Board did not explain why appellant's institutional infractions, the last one of which was nearly a decade ago, and his lack of remorse and insight would require another eight to ten years of rehabilitation. Without an explanation for how the Board reached its decision that appellant deserved a 180-month FET, we cannot evaluate the propriety of the Board's decision. The Board's lack of explanation is especially troubling given the extraordinary length of the FET. Before imposing an FET that substantially departs from the presumption, the Board should articulate why such a substantial departure is warranted. Accordingly, the Board's failure to explain its reasoning renders the Board's decision arbitrary and capricious.

We therefore vacate the 180-month FET and remand to the Board to impose an FET and to explain why it selected the length of the FET. Given our decision to remand, we need not address appellant's argument concerning the constitutionality of his 180-month FET. See In re Civil Commitment of D.Y., 218 N.J. 359, 379 (2014).

Affirmed in part; reversed and remanded in part. We do not retain jurisdiction.