SAMUEL PETTAWAY 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NOT FOR PUBLICATION WITHOUT THE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-4362-15T2

SAMUEL PETTAWAY,

        Appellant,

v.

NEW JERSEY STATE PAROLE
BOARD,

     Respondent.
____________________________

              Submitted November 8, 2017 – Decided December 22, 2017

              Before Judges Gilson and Mayer.

              On appeal from the New Jersey State Parole
              Board.

              Samuel Pettaway, appellant pro se.

              Christopher S. Porrino, Attorney General,
              attorney for respondent (Gregory R. Bueno,
              Deputy Attorney General, of counsel and on the
              brief).

PER CURIAM

        Appellant Samuel Pettaway is a State inmate serving an eighty-

seven year sentence for numerous crimes, including aggravated

sexual assault, kidnapping, and robbery.              He appeals from an April
27, 2016 final administrative decision by the State Parole Board

(Board) denying his request for parole and establishing a 160-

month future eligibility term (FET). We affirm because the Board's

decision    was   not   arbitrary,   capricious,   or   an   abuse   of   its

discretion.

                                     I.

     Pettaway's convictions arose out of events that occurred on

November 14, 1981, when Pettaway was nineteen years old.             On that

night, Pettaway and two co-defendants found a nineteen-year-old

man and a seventeen-year-old woman in a parked car in Hamilton

Township.     Pettaway and his companions forcefully removed the

victims from their car, assaulted the young man by pistol-whipping

him, and threw the man in the trunk of a stolen vehicle.                  The

young man later escaped by kicking out the back seat of the car.

     Pettaway and his co-defendants then forced the young woman

back into the car, threatened her with a gun, and drove her to a

secluded location, where they repeatedly raped and assaulted her.

Eventually, the young woman was released.          The victims' car was

later found stripped and burned.

     A jury convicted Pettaway of six counts of first-degree

aggravated sexual assault, 
N.J.S.A. 2C:14-2(a)(3) to (5); second-

degree aggravated assault, 
N.J.S.A. 2C:12-1(b)(1); two counts of

first-degree robbery, 
N.J.S.A. 2C:15-1; two counts of first-degree

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kidnapping, 
N.J.S.A. 2C:13-1(b); second-degree possession of a

weapon for an unlawful purpose, 
N.J.S.A. 2C:39-4(a); third-degree

theft, 
N.J.S.A. 2C:20-3(a); and second-degree aggravated arson,


N.J.S.A. 2C:17-1(a)(2).        He was sentenced to serve an aggregate

term of eighty-seven years in prison with twenty-five years of

parole ineligibility.

    In June 2014, Pettaway made a second application for parole.

A two-member Board panel denied parole and a three-member Board

panel established a 160-month FET.        In making those rulings, the

panels cited Pettaway's prior criminal record, the increasingly

serious nature of his criminal record, his present incarceration

for multi-crimes convictions, his juvenile record reflecting that

he committed new offenses while on probation, his institutional

infractions, and a risk assessment evaluation reflecting a score

of thirty-eight, which denoted a high risk of recidivism.

    In establishing the 160-month FET, the three-member Board

panel   issued   a   written   decision   detailing   its   reasoning   for

extending the FET beyond the recommended standard of twenty-seven

months.   Specifically, the panel found that Pettaway remained a

substantial threat to public safety because he had superficial

insight into the root causes of his criminal activity; he still

failed to demonstrate that he could follow the rules of society;

and he had an ongoing substance abuse problem.

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      Pettaway administratively appealed the panels' decisions.

The   full    Board     considered   Pettaway's   arguments,    his   written

submissions,      and    the    administrative    record,    which    included

mitigating materials submitted by and on behalf of Pettaway.                The

Board then adopted the recommendations of the two- and three-

member Board panels.           Accordingly, on April 27, 2016, the Board

issued its final agency decision denying Pettaway's request for

parole and establishing a 160-month FET.

                                      II.

      On this appeal, Pettaway, who is self-represented, makes two

arguments. First, he contends that there was insufficient evidence

to show that he had a substantial likelihood of committing a new

crime if released on parole.          Second, he challenges the adequacy

of the reasons for imposing a 160-month FET.

      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 or capricious.              Acoli v. N.J.

State Parole Bd., 
224 N.J. 213, 222-23 (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 factual findings if they

are supported by substantial credible evidence in the record.                 In

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re Tukes, 
449 N.J. Super. 143, 156 (App. Div. 2017).                "[W]e accord

substantial    deference     to    the   agency's    fact-finding     and   legal

conclusions, acknowledging 'the agency's special expertise and

superior knowledge of a particular field.'"            Ibid. (quoting Circus

Liquors, Inc. v. Governing Body of Middletown Twp., 
199 N.J. 1,

10 (2009)).    "We will not substitute our judgment for the agency's

even though we might have reached a different conclusion."                    Id.

at 156-57 (citing In re Stallworth, 
208 N.J. 182, 194 (2011)).

     A Board decision to grant or deny parole for crimes committed

before August 1997, turns on whether there is a "substantial

likelihood" that 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.

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)    in    making   its

decision.     The Board, however, is not required to consider each

and every factor; rather, it should consider those applicable to

the present case.       McGowan v. N.J. State Parole Bd., 
347 N.J.

Super. 544, 561 (App. Div. 2002).

     Having reviewed the record, including the material in the

confidential    appendix,         in   light    of   these    well-established

standards, we affirm the Board's denial of parole.                   Pettaway's

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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

Pettaway would commit a new crime if released.             We find nothing

arbitrary or capricious about that decision because it is supported

by substantial credible evidence in the record.

      We likewise are satisfied that the 160-month FET imposed by

the Board is neither arbitrary nor capricious and, again, is

supported by the substantial credible evidence in the record.

Following 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 sentence for aggravated sexual assault or kidnapping,

the   standard    FET   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   160-month   FET,   while   lengthy,    will    be

substantially less than thirteen years because it will be reduced

by application of commutation, work, and custody credits.                    In

short, the Board exercised its legislative mandate and determined

that the appropriate FET was 160 months.

      Affirmed.

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