DONALD ALLEN 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NOT FOR PUBLICATION WITHOUT THE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

DONALD ALLEN,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

_____________________________________

August 16, 2016

Submitted August 9, 2016 Decided

Before Judges Ostrer and Manahan.

On appeal from the New Jersey State Parole Board.

Donald Allen, 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

Donald Allen, who is incarcerated at Southern State Correctional Facility, appeals from a final agency decision of the New Jersey State Parole Board (Board), affirming the Board panel's (Panel) decision denying him parole and imposing a twenty-four month future eligibility term (FET). We affirm.

On May 1, 2006, Allen pled guilty to first-degree possession with intent to distribute a controlled dangerous substance. Allen was sentenced to a term of ten years with a three-year period of parole ineligibility. After Allen failed to appear for sentencing, a bench warrant was issued. Allen became a fugitive from justice and did not return to New Jersey until May 2012, when the warrant was executed.

Allen attained eligibility for parole for the first time on September 8, 2014.1 Predicated upon that parole status, on May 21, 2014, a hearing officer conducted an interview of Allen and referred the matter to the Panel for a hearing.

After consideration of Allen's parole eligibility status, the two-member Panel denied parole and imposed a twenty-four month FET. The Panel's decision was based upon its finding of several aggravating factors including: Allen's extensive criminal record; opportunities on probation; prior incarcerations which failed to deter his criminal conduct; commission of an institutional disciplinary infraction; and his lack of insight into criminal behavior. The Panel found as mitigating factors: Allen's participation in institutional programs; his attempts to enroll in programs to which he was not admitted; and a risk assessment score which indicated a low risk of recidivism.

Allen appealed the Panel's decision to the full Board. After review, the full Board determined there was a reasonable expectation that Allen would violate parole if released. In a four-page written decision, the Board affirmed the Panel's decision. This appealed followed.

Allen raises the following argument on appeal

POINT I

THE PAROLE BOARD USED INACCURATE INFORMATION IN DENYING PAROLE AND IMPOSING A [TWENTY-FOUR MONTH] FUTURE ELIGIBILITY TERM CONTRARY TO NEW JERSEY ADMINISTRATIVE REGULATION.

The scope of our review of final decisions of administrative agencies is limited. We do not disturb decisions of the Board, like those of other administrative agencies, unless they are "arbitrary, capricious or unreasonable or [are] not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also Trantino v. N.J. State Parole Bd., 166 N.J. 113, 172, 191-92 (2001).

Pursuant to N.J.S.A. 30:4-123.53(a), the Board should generally grant parole requests for release on an inmate's parole date unless there is a "reasonable expectation that the inmate will violate conditions of parole" and such an expectation is demonstrable "by a preponderance of the evidence." The Board and its panels must also consider several other relevant factors in making its determinations, including the totality of the circumstances. See N.J.A.C. 10A:71-3.11(b)(1) to (23).

Allen argues that the Board's decision should be reversed because it failed to consider his low recidivism score and that imposition of the FET was unreasonable and "manifestly excessive and unjust." We disagree.

The Board considered several factors in determining that Allen was ineligible for parole. The Board considered Allen's significant criminal history, his non-deterrence despite prior sentences to probation and incarceration, his institutional infraction, and his lack of insight as to the causes of his criminal behavior. Although the Board found Allen participated in programs during incarceration, we concur that his participation, along with the low recidivism score, were not the sole determinative considerations. Rather, each of the aggravating and mitigating factors considered by the Board were relevant to its determination. From our review, we conclude the Board's decision to deny parole was amply supported by sufficient credible evidence.

Allen further argues that the Board arbitrarily and capriciously imposed an extended FET. Again, we disagree. An inmate serving a sentence for narcotic law violations is ordinarily assigned a twenty-month FET after a denial of parole. See N.J.A.C. 10A:71-3.21(a)(3). However, in cases where an ordinary FET is "clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior[,]" the Board may impose an FET in excess of administrative guidelines. N.J.A.C. 10A:71-3.21(d).

The Board's decision to impose an extended FET in this case was not arbitrary and capricious. To the contrary, the Board's decision was premised upon its finding of aggravating factors including a concern with Allen's lack of a plan to address his criminal behavior. The totality of the aggravating factors, which were supported by the record, provided the Board with sufficient bases to impose the FET. Ibid.

Affirmed.

1 By this date, when considering Allen's time served and jail time credits, the three-year mandatory parole ineligibility term was satisfied.