SERGIO LOPEZ CARINO 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NOT FOR PUBLICATION WITHOUT THE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

SERGIO LOPEZ CARINO,

a/k/a VICTORIAN SILVA,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

__________________________________

August 10, 2016

Submitted July 20, 2016 Decided

Before Judges Leone and O'Connor.

On appeal from the New Jersey State Parole Board.

Sergio Lopez Carino, appellant pro se.

Christopher S.Porrino, ActingAttorney General, attorney for respondent (Lisa A. Puglisi, Assistant AttorneyGeneral, of counsel;Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Sergio Lopez Carino appeals the December 17, 2014 final administrative decision of the New Jersey Parole Board (Board) denying parole and establishing a thirty-six-month future eligibility term (FET). We affirm.

I.

On August 30, 2003, defendant and others were involved in the stabbing of two men. Defendant was charged with first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2), first-degree attempted murder, N.J.S.A. 2C:11-3, and third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(4). He pled guilty to an amended charge of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and was sentenced to ten years in prison, with 85% parole ineligibility and five years of mandatory parole supervision under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a), (c).

On January 30, 2006, while incarcerated, defendant stabbed another inmate. Defendant was charged with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). Defendant pled guilty to second-degree aggravated assault. Defendant was sentenced to six years in prison, with 85% parole ineligibility and three years of mandatory parole supervision under NERA.

On April 24, 2009, the sentencing court amended the ten-year prison term to seven years, and the six-year prison term to three years, both subject to NERA, but re-imposed the five-year and three-year terms of mandatory parole supervision.

On August 11, 2009, defendant was released on parole and deported to his home country of Mexico. On November 10, 2009, the U.S. Border Patrol arrested defendant for attempting to illegally cross the border into Arizona. Defendant was sentenced to fifty months in federal prison.

On June 7, 2010, the Board issued a parole warrant. Defendant was returned to State custody on June 28, 2013. Defendant waived his right to a mandatory parole supervision revocation hearing. On September 4, 2013, the Board found that defendant had violated the conditions of his parole by failing to "[o]bey all laws and ordinances." The Board revoked defendant's parole and established a FET of fourteen months, to expire on August 26, 2014.

On March 20, 2014, a Board hearing officer conducted an initial hearing and referred defendant's case to a Board panel. On July 18, 2014, a two-member Board panel denied parole and imposed a thirty-six-month FET. In a July 29, 2014 letter, defendant appealed the panel's decision to the full Board. On September 14, 2014, defendant filed a "supplemental appeal." On December 4, 2014, the panel issued an amended decision.

On December 17, 2014, the full Board affirmed the panel's amended decision, finding that "based on the aggregate of all relevant factors, there is a reasonable expectation that [defendant] will violate the conditions of parole if released on parole at this time." The Board also found that the panel had followed the proper standard, had based its decision on all available information, and had fully documented and supported its decision. Defendant now appeals.

II.

"[T]he Parole Board is the 'agency charged with the responsibility of deciding whether an inmate satisfies the criteria for parole release under the Parole Act of 1979.'" Acoli v. N.J. State Parole Bd., 224 N.J. 213, 222 (2016) (citation omitted). "[T]he Parole Board makes 'highly predictive and individualized discretionary appraisals.'" Ibid. (citation omitted). "Those appraisals must realistically be recognized to be inherently imprecise, as they are based on '"discretionary assessment[s] of a multiplicity of imponderables[.]"'" Ibid. (citations omitted). The discretionary powers if the Parole Board are broad. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001). As a result, our review of the "Parole Board's decisions is guided by the arbitrary and capricious standard[.]" Id. at 222-23. We must hew to our standard of review.

III.

"The Board can deny parole if a preponderance of the evidence indicates that "there is a reasonable expectation that the inmate will violate conditions of parole . . . if released on parole at that time." N.J.S.A. 30:4-123.53(a); seeTrantino v. N.J. State Parole Bd., 331 N.J. Super. 577, 605 (App. Div. 2000), aff'd as modified, 166 N.J. 113 (2001).

The Board properly found a reasonable expectation that defendant would violate a condition of parole. The Board reached that finding based on various factors, including defendant's parole being revoked for failing to obey laws, and his lack of an adequate parole plan to assist in his successful reintegration into the community. Additionally, the Board specifically relied on defendant's responses to questions posed by the panel at the hearing that indicated his insufficient problem resolution, lack of insight into his criminal behavior, and minimization of his past conduct.

Because of the "essentially factual nature" of a Parole Board's determination that an inmate is substantially likely to reoffend, "a reviewing court is [only] obligated to '"determine whether [that] factual finding could reasonably have been reached on sufficient credible evidence in the whole record."'" Trantino, supra, 166 N.J. 113, 172 (2001) (citations omitted).

Defendant argues that the Board based its decision to deny parole and impose a thirty-six month FET on false information. Specifically, defendant asserts that the decision is unreasonable because his conviction for re-entry was a "technical violation," not a new crime. Defendant is incorrect. Illegal re-entry is a federal crime. 8 U.S.C.A. 1326; Almendarez-Torres v. United States, 523 U.S. 224, 226, 118 S. Ct. 1219, 1222, 140 L. Ed. 2d 350, 357 (1998).

Given defendant's illegal re-entry, subsequent conviction, and more than four years in federal prison for this crime, the Board properly found that the panel decision was based on accurate information that defendant "fail[ed] to obey all laws and that [his] attempt to return to the United States after [he was] deported was a crime."

The panel found that defendant "has no respect for laws." As defendant continues to assert that his illegal border crossing was not a crime, but a mere "technical violation," it was not arbitrary, capricious, or unreasonable for the Board to find that defendant would likely violate his parole conditions if released on parole.

Again arguing that he did not commit a crime but only a technical violation, defendant asserts that it was unreasonable of the Board to impose a thirty-six month FET. The standard FET for aggravated manslaughter is twenty-seven months, which "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 such adjustment." N.J.A.C. 10A:71-3.21(c). Defendant's crime of illegal re-entry and the other evidence before the Board provided substantial evidence to support the decision, which was not arbitrary, capricious, or unreasonable.

Defendant claims that he was told he would be deported after his fourteen-month FET if he waived his right to a parole revocation hearing. However, defendant fails to cite anything in the record to support this claim.

Defendant notes that the panel ordered a thirty-six-month FET both in its initial decision and in its amended decision, in which it removed "prior opportunity on [parole] has failed to deter criminal behavior" as a reason for denial, and added "participation in institutional programs," "no prior record," and "risk assessment" as mitigating factors. However, the panel's amended decision relied on the same factors on which the Board later relied. As those factors were adequate to support a thirty-six-month FET, it was not arbitrary, capricious, or unreasonable for the panel to not reduce defendant's FET in its amended decision.

Defendant contends that his due process rights were violated by the Board's failure to file a timely decision, in violation of N.J.A.C. 10A:71-4.2(b), which provides that "[a]ppeals filed by inmates shall be considered by the Board . . . within 90 days of the date the appeal was received." Here, the Board acknowledged receipt of defendant's appeal on August 6, 2014, and issued its decision on December 17, 2014. However, defendant sent a supplemental appeal dated September 19, 2014, containing new allegations and materials. The Board acknowledged receipt on September 25, 2014, and issued its decision within ninety days.

Even if defendant's supplemental appeal did not trigger a new ninety-day period, any error was harmless. R. 2:10-2. Defendant cites N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 543 (App. Div.), certif. denied, 111 N.J. 649 (1988), where we critiqued a parole panel for failing to conduct a parole hearing thirty days before the prisoner's parole eligibility date as required by N.J.S.A. 30:4-123.55(c). However, there the hearing was more than four months late, there was no reason for the delay as all materials were timely submitted, and the Board committed numerous other errors. Cestari, supra, 224 N.J. Super. at 542-51. Here, the hearing was at most about a month late, defendant submitted supplemental materials, the panel issued an amended opinion on December 4, 2014, the Board committed no other errors, and defendant alleges no prejudice.

Affirmed.