JEFFREY SALUKA 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NOT FOR PUBLICATION WITHOUT THE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
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0285-17T1

JEFFREY SALUKA,

           Appellant,

v.

NEW JERSEY STATE
PAROLE BOARD,

     Respondent.
___________________________

                    Submitted January 15, 2019 – Decided February 1, 2019

                    Before Judges Suter and Geiger.

                    On appeal from the New Jersey State Parole Board.

                    Jeffrey Saluka, appellant pro se.

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

PER CURIAM
      Jeffrey Saluka, incarcerated at South Woods State Prison, appeals from an

August 23, 2017 final agency decision of the New Jersey State Parole Board

(Board) denying him parole and establishing a ninety-six-month future

eligibility term (FET). We affirm.

      These are the facts. On December 17, 1989, police found a brutally beaten

two-year old boy in respiratory arrest in a motel room occupied by Saluka and

the child's mother.      Attempts at cardio-pulmonary resuscitation were

unsuccessful. The child was transported to the hospital and pronounced dead a

short time later. According to the medical examiner, the cause of death was

massive internal bleeding and abdominal wall hematomas caused by blunt force

trauma. The child also suffered multiple abrasions and contusions to the head,

torso, and extremities, cerebral edema, and pulmonary edema.

      Saluka was charged with aggravated manslaughter, manslaughter, and

endangering the welfare of a child. On January 8, 1990, Saluka, while out on

bail, threatened to kill the child's mother and grandmother. He was subsequently

arrested and charged with terroristic threats. Saluka was later charged with

robbery and aggravated assault related to a July 11, 1990 incident in which the

victim was beaten unconscious.




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      On February 11, 1991, Saluka pleaded guilty to a downgraded charge of

harassment for his threats against the child's mother and grandmother. On April

12, 1991, Saluka pleaded guilty to aggravated assault for the July 11, 199 0

incident. On June 3, 1991, he was sentenced to a seven-year term on the

aggravated assault and to fifty days on the harassment. On February 28, 1992,

a jury convicted Saluka of aggravated manslaughter and endangering the welfare

of a child, and the court sentenced him to an extended term of life imprisonment,

subject to a twenty-five year period of parole ineligibility, to run consecutively

to his other sentences.

      Saluka had prior adult convictions for aggravated assault, simple assault,

possession of a prohibited weapon, and burglary. He was on probation for these

convictions when he committed his present offenses, and was sentenced to an

eighteen-month term for violation of probation. Saluka also has an extensive

juvenile record.

      Saluka has been continuously incarcerated since 1990. He has committed

five institutional offenses during his incarceration, including three serious

"asterisk" infractions. His most recent infraction was committed in May 2013.

      A mental health evaluation was performed August 23, 2016.               The

psychologist concluded Saluka was a medium to high risk for future violence


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and the likelihood he would successfully complete a projected term of parole

was fair to poor.      Saluka's Level of Service Inventory-Revised (LSI-R)

evaluation score was 27, placing him at a medium risk for recidivism.

      Saluka first became eligible for parole on March 4, 2017. On November

3, 2016, a parole hearing officer referred the case to a Board panel for a hearing.

The two-member Board panel denied parole on January 17, 2017, determining

there was a substantial likelihood he "would commit a new crime if released on

parole at this time." The panel referred the case to a three-member panel for

establishment of a FET that may be in excess of the Board's presumptive

schedule.    Among other reasons, the panel found Saluka demonstrated

insufficient problem resolution, showed no insight or remorse for his violent

behavior, and needed to address his anger and rage.

      The three-member panel determined the following factors supporting the

denial of parole were of such a serious nature as to warrant the setting of a FET

beyond the presumptive term: the facts and circumstances of the offenses

(aggravated manslaughter of a two-year-old child); an extensive and repetitive

prior offense record; nature of criminal record increasingly serious; incarcerated

for multiple offenses; prior community supervision revoked for commission of

new offenses; prior incarcerations and opportunities for probation failed to deter


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criminal behavior; committed new offenses while on probation; committed five

institutional infractions including possession of a weapon and two incidents of

fighting with another; insufficient problem resolution with lack of insight into

violent behavior and minimizing anti-social conduct; and commission of a crime

while on bail.     The panel also found the following mitigating factors:

participation in institutional programs; institutional reports reflecting favorable

institutional adjustment; attempted enrollment in programs; minimum custody

status achieved and maintained; and a viable parole plan.

      The three-member panel established a ninety-six-month FET based on the

same factors relied upon by the two-member panel in denying parole. 1 The

three-member panel also considered the same mitigating factors considered by

the two-member panel, and a letter of mitigation submitted by Saluka. The

three-member panel concluded Saluka: (1) did not acknowledge or understand

the seriousness of his violent actions; (2) did not acknowledge or grasp the

gravity of his behavioral choices which led to an extensive and repetitive prior

criminal record; and (3) possessed insufficient insight in understanding the

stressors that prompted his behavioral choices.


1
   According to respondent, Saluka's projected parole eligibility date is in
September 2021, based on the application of commutation, work, and minimum
custody credits pursuant to  N.J.S.A. 30:4-123.53(a).
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      Saluka appealed the panels' decisions to the full Board, arguing: 1) the

decisions were contrary to written Board policy or procedure; 2) the panels

failed to consider material facts supporting parole; 3) the panels' decisions were

arbitrary and used a standard of parole consideration that was "unauthorized by

law;" and 4) the panels did not properly consider his LSI-R evaluation score.

The full Board affirmed, finding no merit in Saluka's challenges to the parole

denial and the length of the FET. This appeal followed.

      Saluka raises the following arguments on appeal:

            POINT 1
            THE BOARD PANEL VIOLATED WRITTEN
            BOARD POLICY BY FAILING TO ESTABLISH A
            NEXUS BETWEEN THE REASONS FOR DENIAL
            AND THE CONCLUSION THAT THERE EXISTED
            A    SUBSTANTIAL    LIKELIHOOD   THAT
            APPELLANT WOULD COMMIT A NEW CRIME IF
            RELEASED ON PAROLE AT THIS TIME.

            POINT 2
            THE BOARD PANEL DENIED JEFFERY SALUKA
            HIS RIGHT TO PROCEDURAL DUE PROCESS DUE
            TO THE BOARD PANEL'S VIOLATION OF
            WRITTEN BOARD POLICY.

            POINT 3
            THE NATURE OF THE BOARD PANEL HEARING
            PRECLUDE[S] A HEARING CONDUCTED WITH
            FUNDAMENTAL FAIRNESS THUS DEPRIVING
            JEFFERY SALUKA DUE PROCESS OF LAW.



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             POINT 4
             THE DECISION OF THE BOARD PANEL MUST BE
             REVERSED BECAUSE THE BOARD PANEL
             FAILED [TO] CONSIDER MATERIAL FACTS.

      Our review of the Board's decision is deferential. J.I. v. N.J. State Parole

Bd.,  228 N.J. 204, 230 (2017). That is so because "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, 358-59 (1973)), and are presumed valid, McGowan v. N.J. State Parole

Bd.,  347 N.J. Super. 544, 563 (App. Div. 2002). We will not disturb the Board's

determination "unless there is a clear showing that it is arbitrary, capricious, or

unreasonable, or that it lacks fair support in the record." J.B. v. N.J. State Parole

Bd.,  229 N.J. 21, 43 (2017) (quoting In re Herrmann,  192 N.J. 19, 27-28 (2007)).

The burden is on the inmate to demonstrate the Board's actions were

unreasonable. McGowan,  347 N.J. Super. at 563.

      Defendant is serving a sentence for an offense committed before August

18, 1997. Therefore, "the issue before us is governed by the standards in

 N.J.S.A. 30:4-123.53(a) and 30:4-123.53(c) prior to the amendment of those

statutes on that date." Williams v. New Jersey State Parole Bd.,  336 N.J. Super.
 1, 7 (App. Div. 2000) (citing N.J.A.C. 10A:71-3.10). For offenses committed

before August 18, 1997, "the Parole Board may deny parole release if it appears

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from a preponderance of the evidence that 'there is a substantial likelihood that

the inmate will commit a crime under the laws of this State if released on parole

at such time.'" Ibid. (quoting L. 1979, c. 441, § 9).

      Having reviewed the record in light of these well-settled standards,

including the psychological evaluation and other materials in the confidential

appendix, we conclude Saluka's arguments are without merit. We find no basis

to conclude the Board's decision was arbitrary, capricious, or unreasonable, that

it lacked fair support in the record, or that it otherwise violated any policies.

      N.J.A.C. 10A:71-3.11(b) (1) to (23) contains a non-exhaustive list of

factors the Board may consider in determining whether an inmate should be

released on parole, but "the Board [must] focus its attention squarely on the

likelihood of recidivism." McGowan,  347 N.J. Super. at 565.

      Upon review of the record, we find the Board considered "the aggregate

of all the factors which may have any pertinence." Beckworth,  62 N.J. at 360.

The Board based its decision on a multitude of aggravating factors, most notably

the substantial likelihood that Saluka will commit a new crime if released on

parole, and his lack of satisfactory progress in reducing the likelihood of future

criminal behavior.




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      Although the Board recognized some mitigating factors – such as Saluka's

participation in programs specific to behavior and minimum custody status

achieved and maintained – it acted well within its bounds in finding by a

preponderance of the evidence that Saluka, would likely commit a new crime if

released on parole at this time.

      Concerning the FET, an inmate serving a sentence for aggravated

manslaughter is ordinarily assigned a twenty-seven month FET after a denial of

parole. N.J.A.C. 10A:71-3.21(a)(1). A three-member panel may impose a FET

in excess of administrative guidelines 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." N.J.A.C. 10A:71-3.21(d). The Board

considered the mitigating and aggravating factors, and acted well within its

authority in increasing defendant's FET.

      Having reviewed the record, including the materials in the confidential

appendix, we discern no basis for disturbing the Board's decision to deny parole

and impose the FET, which is amply supported by the record.

      Saluka's remaining arguments are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.


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