JOHN KYLES 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NOT FOR PUBLICATION WITHOUT THE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-5370-16T1

JOHN KYLES,

          Appellant,

v.

NEW JERSEY STATE PAROLE
BOARD,

     Respondent.
________________________________

                   Submitted July 23, 2018 – Decided October 29, 2018

                   Before Judges Whipple and Suter.

                   On appeal from the New Jersey State Parole Board.

                   John Kyles, appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Melissa Dutton Schaffer, Assistant
                   Attorney General, of counsel; Christopher C.
                   Josephson, Deputy Attorney General, on the brief).

PER CURIAM
      John Kyles (appellant) appeals the April 19, 2017 final agency decision

of the New Jersey State Parole Board (Board) that denied his parole and set an

eighty-four month future parole eligibility term (FET). We affirm.

      We recount only such facts as are necessary for our decision. In May

1995, appellant stabbed his nephew in the head, was arrested and indicted.

Appellant was convicted by a jury of third-degree aggravated assault with a

deadly weapon,  N.J.S.A. 2C:12-1(b)(2); second-degree aggravated assault,

 N.J.S.A. 2C:12-1(b)(1); first-degree attempted murder,  N.J.S.A. 2C:5-1, 2C:11-

3; third-degree possession of a weapon for an unlawful purpose,  N.J.S.A. 2C:39-

4(d); fourth-degree unlawful possession of a weapon,  N.J.S.A. 2C:39-5(d); and

fourth-degree certain persons not to have weapons,  N.J.S.A. 2C:39-7. He was

sentenced to an extended term of fifty-years of imprisonment, subject to

seventeen years of parole ineligibility. Appellant became eligible for parole for

the third time in May 2016.

      A two-member panel of the Board denied appellant's request for parole on

April 8, 2016, finding "a substantial likelihood exists that [he] would commit a

new crime if released on parole at this time."       The panel considered the

underlying offense (attempted murder) was serious, appellant had an extensive

juvenile and criminal record consisting of thirty-one adult convictions, some of


                                                                         A-5370-16T1
                                       2
which involved assault and theft, he had been paroled five times in the past and

had committed two parole violations. Appellant incurred thirty-two infractions

while incarcerated, with the most recent three occurring within the period under

review. One of these was an "asterisk" or serious offense for fighting. He had

fourteen other asterisk offenses in his record.

      The two-member panel considered that appellant lacked insufficient

problem resolution, lacked insight into his criminal behavior, minimized his

conduct, and failed to sufficiently address his substance abuse problem. It also

considered an objective risk assessment evaluation that indicated a high risk of

recidivism, and that appellant's mental health issues "further complicate

matters."   Mitigating factors were considered including his participation in

institutional programs. The two-member panel referred the case to a three-

member panel for review and to establish an FET.

      The three-member panel of the Board denied appellant's request for parole

on July 6, 2016, also finding "a substantial likelihood exists that [appellant]

would commit a new crime if released on parole at this time." In its seven-page

written decision denying parole, the panel explained that appellant lacked

insight into his criminal behavior. He continued to blame his victim who, he

said, "came at [him] with an attitude." Appellant minimized the crime as "just


                                                                        A-5370-16T1
                                        3
an altercation," explaining he stabbed the victim in the head because he was

drinking. Appellant explained he had not remained infraction free while in

prison because of the "wild environment in here . . . people come onto you

aggressive and you gotta (sic) defend yourself." He told the three-member panel

he had changed, but he explained his recent infraction for fighting by saying

"'you gotta (sic) face the man every day' and 'there's a lot of gang activity here.'"

The three-member panel found "the answers [appellant] provided to them, in

addition to [his] institutional conduct since [his] last parole hearing were not

representative of an individual who possesses insight into their criminality and

anti-social thinking." The panel imposed a ninety-six month FET, but later

modified it to eighty-four months, finding that appellant did not understand the

root causes of his criminal actions, did not acknowledge the severity of his anti -

social decision making and committed institutional infractions.           Appellant

appealed the denial and FET to the full Board.

      The Board concurred with the two-and three-member panels. On April

19, 2017, it denied parole, finding "a preponderance of the evidence indicates

that there is a substantial likelihood that [appellant] would commit a crime if

released on parole at this time." The Board agreed an FET under N.J.A.C.

10A:71-3.21 (a), (b) and (c) was "clearly inappropriate due to [appellant's] lack


                                                                             A-5370-16T1
                                         4
of satisfactory progress in reducing the likelihood of future criminal behavior "

and affirmed the eighty-four month FET. See N.J.A.C. 10A:71-3.21(d). The

Board found appellant's entire record had been reviewed comprehensively,

including his "documented mental health issues, alcohol abuse history and

circumstances of [his] institutional infractions." The Board considered his past

opportunities for release.   The Board agreed appellant lacked satisfactory

progress in reducing his criminal behavior, he did not understand the reasons for

his criminal action and the eighty-four month FET was appropriate.

      Appellant appeals arguing:

            THE RECORD EVIDENCE IN THIS CASE,
            INCLUDING KYLE'S DOCUMENTED HISTORY OF
            MENTAL HEALTH ISSUES AND UTTER LACK OF
            A HOLISTIC REENTRY PLAN, REQUIRES THIS
            COURT FULL BOARD TO RESCIND THE
            [EIGHTY-FOUR] MONTH FET IN ITS ENTIRETY,
            OR ALTERNATIVELY, MODIFY THE FET TO A
            MORE REASONABLE TERM.

      The scope of our review is very limited. In re Stallworth,  208 N.J. 182,

194 (2011) (citing Henry v. Rahway State Prison,  81 N.J. 571, 579 (1980)).

"[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) (citations

omitted).   A Board's decision involves "discretionary assessment[s] of a

                                                                         A-5370-16T1
                                       5
multiplicity of imponderables . . . ."      Ibid. (alteration in original) (citing

Greenholtz v. Inmates of Neb. Penal & Corr. Complex,  142 U.S. 1, 10 (1979)).

Unless the Board's decision is found to be "arbitrary, capricious, or

unreasonable, or . . . not supported by substantial credible evidence in the record

as a whole," it shall not be disturbed. In re Stallworth, 2 018 N.J. at 194; see

Acoli,  224 N.J. at 222-23. "The burden of showing that an [agency's] action was

arbitrary, unreasonable or capricious rests upon the appellant." McGowan v.

N.J. State Parole Bd.,  347 N.J. Super. 544, 563 (App. Div. 2002).

      Here, the Board's final agency decision was not arbitrary, capricious or

unreasonable. The Board comprehensively considered appellant's entire record,

including the seriousness of his offenses, and his numerous prior convictions as

an adult, which included assaultive behavior and theft-related crimes. The

Board considered each of appellant's prior opportunities for parole or release,

and noted "each opportunity [was] followed by additional alcohol use and

additional criminal behavior." His thirty-two disciplinary infractions during his

incarceration included asterisk or serious infractions, and three of them were

committed after his last parole hearing. It also considered appellant's answers

to questions posed to him by the panel at the hearing as well as mitigating




                                                                           A-5370-16T1
                                        6
factors. We agree the Board's decision was substantially supported by this

record and it considered all relevant factors.

      We also agree the Board was not arbitrary, capricious or unreasonable in

ordering an eighty-four month FET. The record showed ample support for the

Board's conclusion that the standard FET was "clearly inappropriate due to

[appellant's] lack of satisfactory progress in reducing the likelihood of future

criminal behavior" and that a longer FET of eighty-four months was appropriate.

      Appellant argues the Board placed significant weight on his three recent

disciplinary infractions, but failed to consider the "compelling circumstances

mitigat[ing] his conduct" for each of these infractions when it determined the

FET. He contends the Board did not consider his mental health or alcohol abuse

history. However, the record supports neither argument. "[B]oth [appellant]

and the Board panel discussed in detail all the circumstances surrounding the

'fighting' infracting that [appellant] incurred approximately a year prior to the

hearing," including appellant's arguments about mitigation. Our review of the

record also shows the Board considered and addressed his mental health and

alcohol abuse history.

      Affirmed.




                                                                         A-5370-16T1
                                        7