EVERETT MCGLOTTEN v. NEW JERSEY STATE PAROLE BOARD
Annotate this CaseNOT 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-0598-18T4
EVERETT MCGLOTTEN,
Appellant,
v.
NEW JERSEY STATE
PAROLE BOARD,
Respondent.
_______________________
Submitted February 10, 2020 – Decided April 28, 2020
Before Judges Sumners and Natali.
On appeal from the New Jersey State Parole Board.
Everett McGlotten, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Christopher C. Josephson, Deputy
Attorney General, on the brief).
PER CURIAM
Everett McGlotten, an inmate at South Woods State Prison, appeals the
New Jersey State Parole Board's (the Board) August 29, 2018 final agency
decision denying him parole and imposing a sixty-month Future Eligibility Term
(FET). We affirm.
On July 20, 1988, a jury found McGlotten guilty of first-degree murder,
N.J.S.A. 2C:11-3(a)(1)(2), second-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(a), and third-degree unlawful possession of
a weapon, N.J.S.A. 2C:39-5(b). The murder victim was shot in the back of the
head by McGlotten's co-defendant in the victim's apartment, when McGlotten
and the co-defendant accused him of stealing the co-defendant's drugs. On
September 30, 1988, McGlotten was sentenced to an aggregate life term with a
mandatory-minimum term of thirty years.
On January 13, 2018, McGlotten became eligible for parole for the first
time. At his September 22, 2017 hearing, the parole officer referred the matter
to a two-member Board panel.
McGlotten was denied parole by the two-member panel on November 2,
2017. In determining there was a substantial likelihood McGlotten would
commit a new crime if he was released, the panel cited numerous reasons,
including but not limited to: the facts and circumstances of the murder offense;
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an extensive and increasingly more serious prior criminal record; the
commission of numerous, persistent, and serious prison institutional infractions,
four with the most recent one on September 7, 2004; insufficient problem
resolution; lack of remorse for the victim; risk assessment evaluation; and lack
of an adequate parole plan to assist in successful reintegration into the
community. The panel also acknowledged several mitigating factors, including
but not limited to: opportunities on community supervision completed without
any violations; participation in institutional programs; favorable institutional
adjustment; restored commutation time; and minimal custody status achieved
and maintained. In addition, the panel requested a three-member Board panel
establish a FET outside the presumptive twenty-seven-month limit. N.J.A.C.
10A:71-3.21(a)(1).
On January 24, 2018, the three-member panel confirmed denial of parole
and established a sixty-month FET. About three months later, the panel set forth
its reasoning in a nine-page written decision, essentially citing the same reasons
for denial and recognizing the same mitigating factors as the two-member panel
did when denying parole. The panel noted that with the applicable commutation
time, earned work credits, and minimum custody credits, McGlotten's parole
eligibility date is October 26, 2021.
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McGlotten appealed to the full Board, which affirmed the panels'
decisions for essentially the same reasons in an August 29, 2018 four-page
written decision.
Before us, McGlotten argues:
POINT 1
THE PAROLE BOARD UTILIZED INCORRECT
STANDARDS IN REENDERING ITS DECISION TO
DENY PAROLE TO APPELLANT.
POINT 2
THE HEARING OFFFICER VIOLATED WRITTEN
BOARD POLICY BY FAILING TO ESTABLISH A
NEXUS BETWEEN THE REASONS FOR DENIAL
AND THE CONCLUSION THAT THERE IS A
SUBSTANTIAL LIKELIHOOD THAT APPELLANT
WILL COMMIT A CRIME UNDER THE LAWS OF
THIS STATE IF RELEASED ON PAROLE AT THIS
TIME.
POINT 3
THE BOARD PANEL DENIED APPELLANT HIS
RIGHT TO PROCEDURAL DUE PROCESS DUE TO
THE BOARD'S PANEL'S VIOLATION OF
WRITTEN BOARD POLICY.
POINT 4
A BOARD MEMBER PARTICIPATING IN THE
DELIBERATIONS OR DISPOSITION OF THE CASE
HAS FAILED TO COMPLY WITH THE BOARD'S
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PROFESSIONAL CODE OF CONDUCT. (NOT
RAISED BELOW).
POINT 5
THE PAROLE BOARD UTILIZED SUBJECTIVE
PSYCHOLOGICAL TERMS SUCH AS LACK OF
INSIGHT, REMORSE, AND MINIMIZES CONDUCT
AS THE BASIS TO DENY PAROLE RENDERING
THE DECISION UNCONSTITUIONAL ON
VAGUENESS GROUNDS
In reviewing a final decision of the Board, we consider: (1) whether the
Board's action is consistent with the applicable law; (2) whether there is
substantial credible evidence in the record as a whole to support its findings;
and (3) whether in applying the law to the facts, the Board erroneously reached
a conclusion that could not have been reasonably made based on the relevant
facts. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24 (1998). The Board's
decision to grant or deny parole turns on whether "there is a substantial
likelihood the inmate will commit" another crime if released. Williams v. N.J.
State Parole Bd., 336 N.J. Super. 1, 7-8 (App. Div. 2000). The Board must
consider the factors enumerated 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). The Board
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can consider an inmate's lack of insight into what led him to commit an offense.
Id. at 558-59.
An inmate serving a minimum term in excess of fourteen years is
ordinarily assigned a twenty-seven-month FET after a denial of parole. See
N.J.A.C. 10A:71-3.21(a)(1). However, N.J.A.C. 10:71-3.21(d) allows a three-
member panel to establish a FET outside of the administrative guidelines if the
presumptive twenty-seven-month FET is "clearly inappropriate due to the
inmate's lack of satisfactory progress in reducing the likelihood of future
criminal behavior."
We have considered McGlotten's contentions and conclude they are
without sufficient merit to warrant discussion in this opinion, R. 2:11-3(e)(1)(E),
and we affirm substantially for the reasons expressed by the Board in its
thorough decision. We add the following remarks.
The Board's action is consistent with the applicable law, there is
substantial credible evidence in the record to support its findings, and the Board
reached conclusions based on relevant facts. The Board made extensive
findings, which we need not repeat here, demonstrating the basis for its decision
to deny McGlotten's parole. The Board provided multiple reasons for imposing
a sixty-month FET, which is neither arbitrary nor capricious, and McGlotten
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may actually be eligible to be released on parole in October 2021. Additionally,
McGlotten did not argue before the Board that a member on the two-member
panel acted unprofessionally during its hearing, thus we will not consider the
argument because it is neither jurisdictional in nature nor do does it substantially
implicate the public interest. Zaman v. Felton, 219 N.J. 199, 226-27 (2014)
(citation omitted). In sum, on this record, we have no reason to second-guess
those findings or conclusions and thus defer to the Board's expertise in these
matters.
Affirmed.
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