JAHBORN GARRETT 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NOT FOR PUBLICATION WITHOUT THE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-4569-19

JAHBORN GARRETT,

           Appellant,

v.

NEW JERSEY STATE
PAROLE BOARD,

     Respondent.
_____________________

                    Submitted November 4, 2021 – Decided February 2, 2022

                    Before Judges Haas and Mitterhoff.

                    On appeal from the New Jersey State Parole Board.

                    Jahborn Garrett, appellant pro se.

                    Andrew J. Bruck, Acting Attorney General, attorney for
                    respondent (Jane C. Schuster, Assistant Attorney
                    General, of counsel; Christopher C. Josephson, Deputy
                    Attorney General, on the brief).

PER CURIAM
      Jahborn Garrett, pro se, appeals from a May 27, 2020 New Jersey State

Parole Board (Board) final agency decision denying him parole and imposing

an eighteen-month future eligibility term (FET).

      On February 10, 2014, Garrett pleaded guilty to first-degree armed

robbery,  N.J.S.A. 2C:15-1(b), and was subsequently sentenced to a six-year term

of incarceration. Although Garrett was convicted of first-degree robbery, his

offense was treated as a second-degree crime for sentencing purposes. He was

sentenced under the No Early Release Act,  N.J.S.A. 2C:43-7.2, which included

a five-year term of mandatory parole supervision (MPS) upon his release from

custody. Upon his release, Garrett violated the terms of MPS and was returned

to custody on April 18, 2019.

      On May 8, 2019, the Board revoked his parole and imposed a twelve-

month FET. Garrett's current maximum sentence is four years, four months, and

eleven days which is equivalent to the time remaining on his five-year MPS

term. After returning to custody, he committed three institutional disciplinary

infractions, including two "asterisk" infractions, which the Department of

Corrections considers to be the most serious. See N.J.A.C. 10A:4-4.1. The

asterisk infractions included fighting and disruptive conduct, while the third

infraction was for entering an unauthorized area.



                                       2                                 A-4569-19
      Garrett next became eligible for parole on April 17, 2020. On December

20, 2019, he received an initial hearing which occurred approximately eight

months into his current sentence. A hearing officer referred the case to a Parole

Board panel for a hearing.

      On February 3, 2020, a two-member Board panel denied parole and

imposed an eighteen-month FET. The panel grounded its decision on: the facts

and circumstances of the offense; Garrett's repetitive and extensive prior offense

record; the increasingly serious nature of his criminal offenses; the fact that prior

probation failed to deter criminal behavior; the fact that his current opportunity

on parole was revoked for technical violations; his commission of institutional

disciplinary infractions, with the most recent occurring in December 2019;

insufficient problem resolution and a lack of insight into criminal behavior as

demonstrated by the panel interview and documentation in his case file; and the

results of a risk assessment evaluation which yielded a "moderate" risk of

recidivism. The Board did find mitigating factors which included: Garrett's

participation in institutional programs, an attempt made to enroll and participate

in programs to which he was not admitted, and institutional reports that reflected

favorable institutional adjustment.




                                         3                                    A-4569-19
      Garrett appealed the panel's decision to the full Board. On May 27, 2020,

the Board affirmed the panel's decision to deny parole and impose an eighteen-

month FET.

      On appeal, Garrett argues:

             POINT I

             THE STATE PAROLE BOARD['S] DECISION TO
             DENY    APPELLANT['S]   APPEAL    WAS
             ARBITRARY, CAPRICIOUS, UNREASONABLE
             AND UNSUPPORTED . . . BY CREDIBLE
             EVIDENCE IN THE RECORD.

             POINT II

             GARRETT WAS WRONGFULLY VIOLATED AND
             GIVEN    AN  [EIGHTEEN]-MONTH  FUTURE
             ELIGIBILITY TERM FOR A DISCIPLINARY
             INFACTION THAT HE ALLEDGE[S] HE WAS A
             VICTIM [IN].

             POINT III

             THE BOARD PANEL FAILED TO PROPERLY
             CONSIDER ALL MITIGATING FACTORS.

             POINT IV

             THE BOARD PANEL FAILED TO CONSIDER
             PLACEMENT INTO A PROPER TREATMENT
             FACILITY TO ADDRESS SPECIFIC NEEDS.

      Our review of a parole board's decision is limited. Hare v. N.J. State

Parole Bd.,  368 N.J. Super. 175, 179 (App. Div. 2004). We "must determine

                                      4                                  A-4569-19
whether the factual finding could reasonably have been reached on sufficient

credible evidence in the whole record." Ibid. (citing Trantino v. N.J. State Parole

Bd.,  166 N.J. 113, 172, modified,  167 N.J. 619 (2001)). We will overturn a

parole board's decision only if it is arbitrary and capricious. Perry v. N.J. State

Parole Bd.,  459 N.J. Super. 186, 193 (App. Div. 2019). An appellate court must

not substitute its judgment for that of the agency, and an agency's decision is

accorded a strong presumption of reasonableness. McGowan v. N.J. State

Parole Bd.,  347 N.J. Super. 544, 563 (App. Div. 2002). The appellant bears

"[t]he burden of showing that an action was arbitrary, unreasonable or

capricious." Ibid.

      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,  347 N.J. Super. at 561.

      We have considered Garrett's contentions and conclude they are without

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

We affirm, substantially for the reasons expressed by the Board in its cogent

decision. We add the following remarks.




                                        5                                    A-4569-19
      The Board considered all relevant material factors in Garrett's case before

denying parole. The Board based its finding that Garrett exhibited insufficient

problem resolution, and specifically that he lacks insight into his criminal

behavior, based on questions posed to him at his hearing. The Board considered

Garrett's risk assessment evaluation and score of twenty-two which indicated a

moderate risk of recidivism. The Board weighted the fact that he had recently

gotten into a fight, which resulted in institutional disciplinary measures. The

Board also considered the nature of his underlying criminal offense, his prior

criminal record, and failure of prior opportunities on parole.

      The Board considered mitigating circumstances as well, including

Garrett's participation in institutional programs, the reports that reflected his

favorable institutional adjustment, and his attempts to enroll and participate in

programs to which he was not admitted. The Board even amended its initial

report to add Garrett's participation in institutional programs as a mitigating

factor. The Board's action was consistent with the applicable law. We reject

Garrett's contention that the Board's decision was arbitrary or capricious and

find there is substantial credible evidence in the record to support the denial of

parole.




                                        6                                   A-4569-19
      Likewise, we are satisfied that the eighteen-month FET imposed by the

Board is supported by the record. The presumptive FET for an inmate who is

serving a sentence for armed robbery and is denied parole is twenty-three

months under N.J.A.C. 10A:71-3.21(a)(2). The standard FET "may be increased

or decreased by up to nine months when, in the opinion of the Board panel, the

severity of the crime for which the inmate was denied parole and the prior

criminal record or other characteristics of the inmate warrant such adjustment."

N.J.A.C. 10A:71-3.21(c). Here, the decrease in the FET taken together with the

rest of Board panel's analysis, reflects the panel's careful consideration in this

manner, and is well-supported by the record.

      Affirmed.




                                        7                                   A-4569-19