WILLIAM THOMAS, JR v. NEW JERSEY STATE PAROLE BOARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

WILLIAM THOMAS, JR.,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

February 8, 2017

Argued December 20, 2016 Decided

Before Judges Fasciale and Gilson.

On appeal from the New Jersey State Parole Board.

Eric J. Marcy argued the cause for appellant (Wilentz, Goldman & Spitzer, P.C., attorneys; Mr. Marcy, on the brief).

Christopher C. Josephson, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Mr. Josephson, on the brief).

PER CURIAM

Appellant William Thomas, Jr. is an inmate serving life sentences for two murders he committed when he was seventeen years old. He appeals from an April 27, 2016 final administrative decision by the State Parole Board (Board) denying his fifth request for parole and establishing a future eligibility term (FET) of eighty-four months. We affirm because the Board's decision was not arbitrary, capricious, or an abuse of its discretion.

I

On May 6, 1980, Thomas committed a double homicide. The victims were a fifteen-year-old female and a seventeen-year-old male. Thomas, who at the time was seventeen years of age, was driving with his nineteen-year-old cousin, when they picked up the victims who were hitchhiking home from the beach. The cousin drove the victims to a wooded area where Thomas struck and killed the two teens using a tire iron.

Following the murders, Thomas and his cousin fled the State. Two months later, Thomas enlisted in the United States Army and was transferred to Germany. In June 1981, the cousin informed the police that he was present when Thomas murdered the two teens. Thereafter, Thomas was arrested. In February 1982, he pled non vult to two counts of murder. Thomas was then sentenced to two concurrent life sentences.

Thomas became eligible for parole in 1995. Between 1995 and 2012, the Board considered and four times denied Thomas' requests for parole. In 2007, we affirmed the denial of Thomas' third request for parole. Thomas v. N.J. State Parole Bd., No. A-2649-05 (App. Div. August 22, 2007).

Thomas became eligible for parole for a fifth time in January 2013. He again applied for parole, but the Board denied his request in a final decision issued on March 25, 2013. On appeal, we reversed the Board's denial of parole and remanded for reconsideration. Thomas v. N.J. State Parole Bd., No. A-2943-13 (App. Div. August 3, 2015) (2015 Decision). In our 2015 Decision, we concluded that the record did not support the Board's determination that Thomas was likely to commit a crime if released on parole.

In that regard, we noted that the Board had "failed to address the ten positive psychological evaluations performed on Thomas between[] 1991 and 2003[,] all of which consistently reported that Thomas had 'good insight' and maintained good impulse control and judgment." Id. (slip op. at 17). We also concluded that

[T]he Board improperly relied on prior parole hearings not part of the record and credited the summaries of Thomas's statements made by interested third parties over Thomas's own non-contradictory statements that he lacks memory of an event occurring over thirty years ago. Further, the Board illogically concluded that Thomas'[] false memory of the victims' drinking precludes him from having a lack of memory of other events.

[Id. (slip op. at 17-18).]

On remand, the full Board conducted a further hearing on September 16, 2015, including an extensive interview of Thomas. Based on that additional hearing and its review of the parole record, the Board determined that a substantial likelihood existed that Thomas would commit a new crime if released on parole. Thus, the Board denied parole. On November 25, 2015, the full Board established an eighty-four month FET. Thomas filed an administrative appeal and on April 27, 2016, the full Board reaffirmed its decision to deny parole and to establish an eighty-four month FET. The Board issued a five-page decision explaining its determination.

In its April 2016 determination, the Board stated that it had reconsidered the entire parole record, including all factors listed in N.J.A.C. 10A:71-3.11. Thus, the Board explained that it had considered nine mitigating factors, including that Thomas had no prior offense record, he was infraction-free in prison, he had participated in many programs, and staff had reported that Thomas had adjusted favorably while in prison. The Board also stated that it had considered "confidential" material concerning Thomas, which the record reflects included Thomas's psychological evaluations.

The Board went on to explain that although it considered all of those mitigating factors, it also determined that Thomas lacked insight into his criminal behavior and that he focused more on himself in terms of the impact of his crimes, rather than the impact his crimes had on the victims and the victims' families. The Board explained

Of concern to the Board was the fact that, thus far, [Thomas] has been unable to gain an understanding of why he chose to react in a deadly manner towards his victims, what factors in his life experience caused him to commit two (2) acts of murder, and what strategies and techniques he needs to prevent such reactionary behavior in the future. The Board determined, based on its interview with Mr. Thomas and its review of the file, that Thomas does not demonstrate the insight necessary to be a viable candidate for parole release at the present time. Although he may believe that he has made strides in this area, the Board found otherwise.

II

Thomas again appealed and we accelerated that appeal. On this appeal, Thomas argues that (1) the Board's reconsideration on remand relied on the same "boilerplate make-weight justifications to support the denial of parole"; (2) the Board failed to assess Thomas' suitability for parole to a residential community transition program; and (3) the Board failed to properly consider Thomas' age at the time of the crimes.

We accord considerable deference to the Board and its expertise in parole matters. Our standard of review is whether the Board's decision was arbitrary and capricious. Acoli v. N.J. State Parole Bd., 224 N.J. 213, 222-23, cert. denied, __ U.S. __, 137 S. Ct. 85, 196 L. Ed. 2d 37 (2016). Parole Board 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)). We will not disturb the Board's fact-findings if they "could reasonably have been reached on sufficient credible evidence in the whole record." J.I. v. N.J. State Parole Bd., 441 N.J. Super. 564, 583 (App. Div.) (quoting Hare v. N.J. State Parole Bd., 368 N.J. Super. 175, 179 (App. Div.), certif. denied, 180 N.J. 452 (2004)), certif. granted, 223 N.J. 555 (2015). "A reviewing court 'may not substitute its own judgment for the agency's, even though the court might have reached a different result.'" In re Stallworth, 208 N.J. 182, 194 (2011) (quoting In re Carter, 191 N.J. 474, 483 (2007)). "This is particularly true when the issue under review is directed to the agency's special 'expertise and superior knowledge of a particular field.'" Id. at 195 (quoting In re Herrmann, 192 N.J. 19, 28 (2007)).

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, including the material in the confidential appendix, we affirm the Board's denial of parole. Thomas' parole eligibility was evaluated by the full Board. The Board considered the relevant factors enumerated in N.J.A.C. 10A:71-3.11(b), and found that there was a substantial likelihood that Thomas would commit a new crime if released. In making that determination, the Board relied, in particular, on its interview of Thomas. Thus, the Board reasoned

[B]ased on Mr. Thomas' responses to questions posed by the Board at the time of the hearing and the documentation in the case file, Mr. Thomas exhibited insufficient problem resolution, specifically, that he lacked insight into his criminal behavior. The Board noted, "[w]hen asked how he would deal with confrontational situations, inmate indicated he would 'stay out of the way.' Inmate's presentation is flat and unemotional. [He] [a]ppears to be uncertain and ill-prepared to appropriately address stressful and confrontational situations. [He] [c]ompares his recognition of his capacity to kill with his drug addiction thinks of it every day, one step at a time. After years of programming, [he] appears to focus impact of crime on himself more than the victims and their families."

Among the factors the Board is to consider are "[s]tatements by the inmate reflecting on the likelihood that he or she will commit another crime[.]" N.J.A.C. 10A:71-3.11(b)(17). Consequently, we cannot say that the Board acted inappropriately in considering Thomas' responses to questions posed to him during his extensive interview. We find nothing arbitrary or capricious about that decision because it is supported by sufficient credible evidence in the record.

We likewise are satisfied that the eighty-four month FET imposed by the Board is neither arbitrary nor capricious and, again, is supported by the credible evidence in the record. Following the denial of parole, the Board must establish an FET. N.J.A.C. 10A:71-3.18(a)(2). When parole is denied 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 "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).

The eighty-four month FET, while lengthy, will be substantially less than seven years because it will be reduced by application of commutation, work, and custody credits. Indeed, at oral argument we were informed that Thomas is already eligible to reapply for parole and he has submitted a new parole request.

As noted, Thomas makes three arguments in challenging the Board's April 2016 decision. First, he argues that on remand, the Board simply relied on the same "boilerplate make-weight justifications to support the denial of parole." In particular, he takes issue with the Board's failure to consider psychological reports. The Board, however, stated that it did consider "confidential material." The Board went on to explain that it only needs to afford parolees disclosure of adverse material or information.

The Board then noted that Thomas' psychological evaluations were "positive" and it explained that it was "not at liberty to discuss or disclose information contained in these documents." Here, we rely on the Board's good faith representation that it considered the evaluations in making its determination because the evaluations are part of the parole record.

Second, Thomas argues that the Board failed to assess his suitability for parole to a residential community transition program. The Board explained, however, that "[i]n assessing Mr. Thomas' case, the Board determined that placement in a [community release] program would not overcome the preponderance of evidence supporting a decision to deny parole at this time." Consequently, the Board represented that it considered Thomas' suitability for parole to a community release program, but found that it was not warranted.

Finally, Thomas argues that the Board failed to properly consider his age at the time of the crimes. The record, however, establishes that the Board was well aware of the age at which Thomas committed these murders. Moreover, as we have already discussed, the Board considered various mitigating factors, including Thomas' age when he committed the murders. Therefore, we also reject this final argument.

Our affirmance on the current record is compelled by our standard of review and the role entrusted to the Board. On this appeal, Thomas has argued that his parole record includes consistent evidence of his adjustment and that he does not pose a risk of recidivism. In support of that position, Thomas points to the fact that he has not committed any offenses while incarcerated, that he has not had serious disciplinary infractions, that he has participated in numerous rehabilitative programs, and that institutional staff have reported favorably on his adjustment. Moreover, Thomas points to numerous positive psychological evaluations.

The Board, however, relies on its discretion and, in particular, its evaluation of Thomas' responses to questions posed during an extensive interview. On this appeal, we are deferring to the Board. Nevertheless, we note that the "dispositive issue governing the parole decision is whether the rehabilitative aspect of the sentence has been satisfied, and the basic test thereof is whether there is a substantial likelihood that the defendant will commit another crime if released on parole." Kosmin v. N.J. State Parole Bd., 363 N.J. Super. 28, 41 (App. Div. 2003) (citing N.J.S.A. 30:4-123.53(a)). Moreover, the parole statute creates a presumption of release once eligible for parole. Thus, "the decision not to release must be regarded as arbitrary if it is not supported by a preponderance of evidence in the record." Id. at 42 (citing N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988)). Consequently, when considering the next request for parole from Thomas, the Board must articulate specific reasons that will allow for appropriate judicial review. See Trantino, supra, 166 N.J. at 173.

Affirmed.