NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2485-15T3
ANTONIO SANCHEZ,
Appellant,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent.
___________________________________
Submitted September 12, 2017 – Decided October 19, 2017
Before Judges Leone and Mawla.
On appeal from the New Jersey State Parole Board.
Antonio Sanchez, appellant pro se.
Christopher S. Porrino, Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Gregory R. Bueno, Deputy Attorney General, on the brief).
PER CURIAM
Appellant Antonio Sanchez challenges the March 25, 2015 final
administrative decision of respondent, the New Jersey State Parole Board (Board), denying parole and establishing a 120-month future
eligibility term (FET). We affirm.
I.
On April 4, 1984, Sanchez, then on probation, murdered the
victim Enrico Castillo. Sanchez and co-defendant Luis Columbie
came to the doorway of the victim's apartment armed with a shotgun.
They demanded the victim repay a $10 debt. When the victim said
he did not have the money, Sanchez killed the victim by shooting
him in the head and chest with the shotgun.
After the incident, Sanchez and Columbie fled the scene and
were preparing to flee Newark in a car, but officers arrested
them. The officers recovered from the car a sawed-off shotgun and
a sawed-off rifle, both loaded.
A jury found Sanchez guilty of first-degree murder, second-
degree possession of a weapon for an unlawful purpose, and two
counts of third-degree possession of a prohibited weapon. The
trial court sentenced defendant on February 28, 1985, to life in
prison with a thirty-year mandatory minimum. We affirmed his
conviction. State v. Sanchez, 224 N.J. Super. 231 (App. Div.),
certif. denied, 111 N.J. 653 (1988).
During his time at Southwoods State Prison, Sanchez acquired
an "abysmal institutional record" of eighty-four infractions.
Thirty-nine were serious, including two armed assaults, thirteen
2 A-2485-15T3 unarmed assaults, three weapon possession offenses, two fighting
offenses, and four threat offenses.
Sanchez became eligible for parole in the summer of 2014. On
March 19, 2014, Sanchez received an initial hearing in front of a
hearing officer, who referred the matter to a panel for a hearing
pursuant to N.J.A.C. 10A:71-3.15(b).
A two-member panel interviewed Sanchez, who stated as
follows. Earlier on the day of the murder, he was socializing
with the victim, who was gambling and drinking alcohol excessively.
The victim borrowed $10 from Sanchez, and then asked for more
money. When Sanchez refused, the victim pulled a knife and stabbed
Columbie. Sanchez left, got a shotgun, returned, and shot the
victim.
On April 4, 2014, the two-member panel, composed of Thomas
Haaf and Lloyd Henderson, denied Sanchez parole and referred his
case to a three-member panel for the separate determination of a
FET outside of administrative guidelines.
The two-member panel gave the following reasons for denying
parole: Sanchez had a prior criminal record; his criminal record
became "increasingly more serious"; he committed his murder
offense while on probation; he had a poor institutional adjustment;
he displayed insufficient problem resolution; he lacked an
adequate parole plan; and his risk evaluation assessment score
3 A-2485-15T3 indicated that he posed a "medium" risk to recidivate. In
particular, based on its interview of Sanchez, the panel found he
"lacked insight into his criminal behavior," "minimized his
conduct," and needed to address criminal thinking and to improve
his decision making.
Because the two-member panel concluded that the presumptive
FET was not appropriate, a three-member panel had the sole task
of determining Sanchez's FET outside of the administrative
guidelines as required by N.J.A.C. 10A:71-3.21(d)(1). This three-
member panel was comprised of Haaf, Henderson, and Yolette Ross.
On September 10, 2014, in the Notice of Decision, the three-member
panel imposed a 120-month FET for the same reasons the two-member
panel denied parole.
On November 13, 2014, the three-member panel issued a notice
of decision detailing its reasons for establishing a 120-month
FET. Specifically, after a "comprehensive review of the entire
record" the three-member panel found it "clear that [Sanchez]
continue[s] to remain a substantial threat to public safety."
Thus, "any term less than a one hundred and twenty (120) month
future eligibility term would be wholly inconsistent with the
conclusion that [Sanchez] ha[s] not shown the requisite amount of
rehabilitative progress in reducing the likelihood of future
criminal activity."
4 A-2485-15T3 Sanchez appealed the three-member panel's decision on the
Board. Haaf, Henderson, and Ross recused themselves from
participating in the Board's final agency decision. On March 25,
2015, the full Board affirmed the decisions to deny Sanchez parole
and to impose the 120-month FET generally for the reasons
articulated by the two-member and three-member panels
respectively.
Sanchez appeals, raising the following arguments:
POINT I – APPELLANT HAS ALREADY SERVED THE PUNITIVE PORTION OF HIS SENTENCE AND THERE IS NOTHING IN THE RECORD[] TO SUGGEST THAT A SUBSTANTIAL [sic] LIKELIHOOD EXISTS THAT APPELLANT WILL COMMIT A NEW CRIME IF RELEASED ON PAROLE AT THIS TIME, ESPECIALLY WHEN APPELLANT HAS NO ADULT AND/OR JUVENILE RECORD, THEREFORE, THE DECISION OF THE N.J. STATE PAROLE BOARD TO DENY HIM PAROLE MUST BE REVERSED.
POINT II – APPELLANT CONTENDS THAT FOR THE N.J. STATE PAROLE BOARD TO ESTABLISH A 120 MONTH FET IS CLEARLY INAPPROPRIATE AND MUST BE REVERSED TO IMPOSE AN APPROPRIATE TERM IN CONFORMITY WITH THE LAW.
II.
"[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, cert.
denied, U.S. , 137 S. Ct. 85, 196 L. Ed. 2d 37 (2016). The
5 A-2485-15T3 Board's discretionary powers are broad. Trantino v. N.J. State
Parole Bd., 166 N.J. 113, 173 (2001). We will disturb the Board's
decisions only if "arbitrary, capricious or unreasonable, or [if]
not 'supported by substantial credible evidence in the record as
a whole.'" Id. at 191-92 (emphasis omitted); see also Acoli,
supra, 224 N.J. at 222-23.
Our "limited scope of review is grounded in strong public
policy concerns and practical realities." Trantino, supra, 166
N.J. at 200. "[T]he Parole Board makes 'highly predictive and
individualized discretionary appraisals,'" which "must
realistically be recognized to be inherently imprecise, as they
are based on 'discretionary assessment[s] of a multiplicity of
imponderables.'" Acoli, supra, 224 N.J. at 222 (alteration in
original) (citations omitted). We must hew to our standard of
review.
III.
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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-2485-15T3
ANTONIO SANCHEZ,
Appellant,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent.
___________________________________
Submitted September 12, 2017 – Decided October 19, 2017
Before Judges Leone and Mawla.
On appeal from the New Jersey State Parole Board.
Antonio Sanchez, appellant pro se.
Christopher S. Porrino, Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Gregory R. Bueno, Deputy Attorney General, on the brief).
PER CURIAM
Appellant Antonio Sanchez challenges the March 25, 2015 final
administrative decision of respondent, the New Jersey State Parole Board (Board), denying parole and establishing a 120-month future
eligibility term (FET). We affirm.
I.
On April 4, 1984, Sanchez, then on probation, murdered the
victim Enrico Castillo. Sanchez and co-defendant Luis Columbie
came to the doorway of the victim's apartment armed with a shotgun.
They demanded the victim repay a $10 debt. When the victim said
he did not have the money, Sanchez killed the victim by shooting
him in the head and chest with the shotgun.
After the incident, Sanchez and Columbie fled the scene and
were preparing to flee Newark in a car, but officers arrested
them. The officers recovered from the car a sawed-off shotgun and
a sawed-off rifle, both loaded.
A jury found Sanchez guilty of first-degree murder, second-
degree possession of a weapon for an unlawful purpose, and two
counts of third-degree possession of a prohibited weapon. The
trial court sentenced defendant on February 28, 1985, to life in
prison with a thirty-year mandatory minimum. We affirmed his
conviction. State v. Sanchez, 224 N.J. Super. 231 (App. Div.),
certif. denied, 111 N.J. 653 (1988).
During his time at Southwoods State Prison, Sanchez acquired
an "abysmal institutional record" of eighty-four infractions.
Thirty-nine were serious, including two armed assaults, thirteen
2 A-2485-15T3 unarmed assaults, three weapon possession offenses, two fighting
offenses, and four threat offenses.
Sanchez became eligible for parole in the summer of 2014. On
March 19, 2014, Sanchez received an initial hearing in front of a
hearing officer, who referred the matter to a panel for a hearing
pursuant to N.J.A.C. 10A:71-3.15(b).
A two-member panel interviewed Sanchez, who stated as
follows. Earlier on the day of the murder, he was socializing
with the victim, who was gambling and drinking alcohol excessively.
The victim borrowed $10 from Sanchez, and then asked for more
money. When Sanchez refused, the victim pulled a knife and stabbed
Columbie. Sanchez left, got a shotgun, returned, and shot the
victim.
On April 4, 2014, the two-member panel, composed of Thomas
Haaf and Lloyd Henderson, denied Sanchez parole and referred his
case to a three-member panel for the separate determination of a
FET outside of administrative guidelines.
The two-member panel gave the following reasons for denying
parole: Sanchez had a prior criminal record; his criminal record
became "increasingly more serious"; he committed his murder
offense while on probation; he had a poor institutional adjustment;
he displayed insufficient problem resolution; he lacked an
adequate parole plan; and his risk evaluation assessment score
3 A-2485-15T3 indicated that he posed a "medium" risk to recidivate. In
particular, based on its interview of Sanchez, the panel found he
"lacked insight into his criminal behavior," "minimized his
conduct," and needed to address criminal thinking and to improve
his decision making.
Because the two-member panel concluded that the presumptive
FET was not appropriate, a three-member panel had the sole task
of determining Sanchez's FET outside of the administrative
guidelines as required by N.J.A.C. 10A:71-3.21(d)(1). This three-
member panel was comprised of Haaf, Henderson, and Yolette Ross.
On September 10, 2014, in the Notice of Decision, the three-member
panel imposed a 120-month FET for the same reasons the two-member
panel denied parole.
On November 13, 2014, the three-member panel issued a notice
of decision detailing its reasons for establishing a 120-month
FET. Specifically, after a "comprehensive review of the entire
record" the three-member panel found it "clear that [Sanchez]
continue[s] to remain a substantial threat to public safety."
Thus, "any term less than a one hundred and twenty (120) month
future eligibility term would be wholly inconsistent with the
conclusion that [Sanchez] ha[s] not shown the requisite amount of
rehabilitative progress in reducing the likelihood of future
criminal activity."
4 A-2485-15T3 Sanchez appealed the three-member panel's decision on the
Board. Haaf, Henderson, and Ross recused themselves from
participating in the Board's final agency decision. On March 25,
2015, the full Board affirmed the decisions to deny Sanchez parole
and to impose the 120-month FET generally for the reasons
articulated by the two-member and three-member panels
respectively.
Sanchez appeals, raising the following arguments:
POINT I – APPELLANT HAS ALREADY SERVED THE PUNITIVE PORTION OF HIS SENTENCE AND THERE IS NOTHING IN THE RECORD[] TO SUGGEST THAT A SUBSTANTIAL [sic] LIKELIHOOD EXISTS THAT APPELLANT WILL COMMIT A NEW CRIME IF RELEASED ON PAROLE AT THIS TIME, ESPECIALLY WHEN APPELLANT HAS NO ADULT AND/OR JUVENILE RECORD, THEREFORE, THE DECISION OF THE N.J. STATE PAROLE BOARD TO DENY HIM PAROLE MUST BE REVERSED.
POINT II – APPELLANT CONTENDS THAT FOR THE N.J. STATE PAROLE BOARD TO ESTABLISH A 120 MONTH FET IS CLEARLY INAPPROPRIATE AND MUST BE REVERSED TO IMPOSE AN APPROPRIATE TERM IN CONFORMITY WITH THE LAW.
II.
"[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, cert.
denied, U.S. , 137 S. Ct. 85, 196 L. Ed. 2d 37 (2016). The
5 A-2485-15T3 Board's discretionary powers are broad. Trantino v. N.J. State
Parole Bd., 166 N.J. 113, 173 (2001). We will disturb the Board's
decisions only if "arbitrary, capricious or unreasonable, or [if]
not 'supported by substantial credible evidence in the record as
a whole.'" Id. at 191-92 (emphasis omitted); see also Acoli,
supra, 224 N.J. at 222-23.
Our "limited scope of review is grounded in strong public
policy concerns and practical realities." Trantino, supra, 166
N.J. at 200. "[T]he Parole Board makes 'highly predictive and
individualized discretionary appraisals,'" which "must
realistically be recognized to be inherently imprecise, as they
are based on 'discretionary assessment[s] of a multiplicity of
imponderables.'" Acoli, supra, 224 N.J. at 222 (alteration in
original) (citations omitted). We must hew to our standard of
review.
III.
Applying that standard, we affirm the Board's decision to
deny parole. Prior to 1997, an inmate had to be released on parole
unless there was "a substantial likelihood that the inmate will
commit a crime under the law of this State if released on parole
at such time." N.J.S.A. 30:4-123.53(a) (amended 1997). That is
the standard applicable to defendant, whose crime was committed
6 A-2485-15T3 in 1984. Trantino v. N.J. State Parole Bd., 331 N.J. Super. 577,
605 (App. Div. 2000), aff'd as modified, 166 N.J. 113, 126 (2001).1
The Board properly found that "a preponderance of evidence
indicates there is a substantial likelihood that [Sanchez] would
commit a crime if released on parole at this time." Because of
the "essentially factual nature" of the Board's determination that
an inmate is substantially likely to reoffend, "a reviewing court
is [only] obligated to '"determine whether [that] factual finding
could reasonably have been reached on sufficient credible evidence
in the whole record."'" Trantino, supra, 166 N.J. at 172 (citation
omitted). Further, our jurisprudence dictates "[w]e are . . .
required to accord deference to the findings of the administrative
agency that are substantially influenced by its opportunity to
hear and see the witness[] and to have the 'feel of the case,' an
opportunity which a reviewing court cannot enjoy." Trantino,
supra, 166 N.J. at 200 (citation omitted).
The Board adopted the two-member panel's findings based on
N.J.A.C. 10A:71-3.11(b), which "contain[s] a non-exhaustive list
of multiple factors the Board may consider in determining whether
1 In 1997, that statute was amended to allow the board to deny parole when the preponderance of the evidence indicates "there is a reasonable expectation that the inmate will violate conditions of parole . . . if released on parole at that time." N.J.S.A. 30:4-123.53(a).
7 A-2485-15T3 an inmate should be released on parole." Hare v. N.J. State Parole
Bd., 368 N.J. Super. 175, 180 (App. Div.), certif. denied, 180
N.J. 452 (2004).
Neither the two-member panel nor the Board focused solely on
the nature of Sanchez's offense. They also considered
"[s]tatements by the inmate reflecting on the likelihood that he
. . . will commit another crime" if released on parole. N.J.A.C.
10A:71-3.11(b)(17).
During the two-member panel's discussion with Sanchez, he
repeatedly claimed the murder was a reaction to the victim
allegedly stabbing Columbie earlier. The panel viewed these
responses as Sanchez "turn[ing] a blind eye to the fact that an
extended period of time transpired between the stabbing . . . and
[Sanchez] retrieving the shotgun[,] returning to the scene and
firing it at the victim's head/chest." The panel directly asked
if the victim's inability to repay $10 was a justifiable reason
to fire the weapon, and Sanchez "sidestepped the issue and
reiterated that the victim had a knife and was hostile."
As the Board noted, the two-member panel properly determined
Sanchez exhibited insufficient problem resolution because he
lacked insight into his crime. The panel found Sanchez simply
treated "his criminal acts as justified – although he had left
[the victim's house] and came back. Views his behavior as a result
8 A-2485-15T3 of bad people – not himself. Same with his prison behavior – a
result of other inmates' actions – not his decisions." Further,
the panel noted "the record supports that [Sanchez] do[es] not
understand the violent reactionary and thought process [he]
employed when [he] killed the victim in such an extreme manner."
The Board noted the panel found sufficient evidence that Sanchez
was unable to acknowledge the extent of his actions involved in
the murder and repeatedly chose to "place the blame for [his]
actions firmly on the shoulders of the victim."
The two-member panel and the Board found during Sanchez's
three-decade incarceration, he similarly did not take
responsibility for his multitude of often serious prison
infractions, which included armed assaults, unarmed assaults,
weapons possession, threats, bodily harm, and fighting. See
N.J.A.C. 10A:71-3.11(b)(1); N.J.A.C. 10A:71-3.11(b)(2).2 The
Board adopted the panel's view that Sanchez "accepted zero
responsibility" and stated other inmates and staff members
"instigat[ed] conflicts with him." The board noted, "[t]here was
not one point during [his] hearing wherein [he] accepted the blame
or responsibility" for any of his actions, in or out of the prison
2 As the three-member panel noted, Sanchez's infractions "have components of violent, threatening, and confrontational behavior which [he] employed in the murder offense."
9 A-2485-15T3 setting. Additionally, the Board noted that Sanchez has not
sufficiently addressed a substance abuse problem.
Another factor leading to the Board's denial of Sanchez's
parole request was the inadequacy of his parole plan. See N.J.A.C.
10A:71-3.11(b)(14). Sanchez originally stated that he "had no
place to live" and sought a "placement." He also suggested that
he would live with family in another state. The panel found his
parole plan inadequate because as an inactive member of society
for the past three decades, he would require a "stable and
supportive living arrangement along with a productive and viable
employment opportunity." In its professional expertise, the Board
found neither plan would accomplish this feat. The Board did not
hold Sanchez's alleged difficulties with English against him.
The Board also considered mitigating factors, including
Sanchez's lack of infractions since 2009, and his participation
in behavior-specific programs, such as therapeutic and job skill
programs. Sanchez argued that his involvement in Islamic studies,
courses on HVAC, pre-GED, culinary arts, building trades, and
woodworking, and his perfect attendance at the "Cage Your Rage"
anger management program showed there was no substantial
likelihood he would commit a crime if released on parole. The
Board found these mitigating factors did not overcome the
10 A-2485-15T3 substantial evidence that appellant was likely to engage in future
criminal behavior.
Sanchez mistakenly claims he was not given an in-depth
psychological evaluation. In fact, he was given such an evaluation
on December 29, 2013, which has been included in the Board's
confidential appendix. The evaluation was properly relied on by
the two-member and three-member panels and the Board. See
Trantino, supra, 166 N.J. at 170.
We are convinced that it was neither arbitrary nor capricious
for the Board to deny Sanchez parole.
IV.
We likewise are satisfied that the 120-month FET imposed by
the Board is neither arbitrary nor capricious. Sanchez contends
the Board erred by accepting the three-member panel's departure
from the twenty-seven-month presumptive FET for murder and other
crimes with sentences in excess of fourteen years. N.J.A.C.
10A:71-3.21(a)(1). However, the three-member panel may set a FET
differing from N.J.A.C. 10A:71-3.21(a)-(c) "if the future parole
eligibility date which would be established pursuant to such
subsections 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).
11 A-2485-15T3 The Board must focus its attention squarely on the likelihood
of recidivism when reviewing the FET determination. See McGowan
v. N.J. State Parole Bd., 347 N.J. Super. 544, 565 (App. Div.
2002) (finding the imposition of a thirty-year FET within the
Board's discretion). The Board acknowledged the likelihood of
recidivism and Sanchez's lack of insight into his crime were
"critical question[s] in [Sanchez's] case."
Sanchez's inability to take responsibility for his deadly
actions and his numerous institutional infractions were considered
by the Board. The Board noted some of Sanchez's infractions "have
components of violent, threatening and confrontational behavior
which [he] employed in the murder offense." Sanchez's lack of
understanding about taking the victim's life also suggested to the
Board that the counseling and programs he attended "had not
assisted [him] in gaining any insight into [his] behavioral
issues." Thus, the Board's decision to uphold the 120-month FET
due to Sanchez's lack of satisfactory progress in reducing his
likelihood of future criminal behavior was not arbitrary,
capricious, or unreasonable.
Defendant incorrectly claims that he had no adult or juvenile
record. Although the two-member panel listed Sanchez's prior
crimes as armed robbery and aggravated assault, the three-member
panel correctly noted that he had been convicted only of receiving
12 A-2485-15T3 stolen property and escape. Moreover, the decisions of both panels
were amended to indicate his prior criminal record was "minimal"
and this was a mitigating factor. Most importantly, the Board
recognized both panels had amended their decisions. The Board's
determination focused on Sanchez's lack of insight into the murder,
and not his minimal criminal record. Thus, the two-member panel's
initial error was corrected by the panels and the Board, and
provides no basis for overturning the Board's conclusions to deny
parole and impose a 120-month FET.
Finally, Sanchez claims the Board violated N.J.A.C. 10A:71-
1.5(b). He argues that because Board members Haaf and Henderson
served as the two-member panel that initially considered his parole
application, they were barred from being part of the three-member
panel, with Board member Ross, that established his 120-month FET.
Sanchez misreads the regulation. In pertinent part, N.J.A.C.
10A:71-1.5(b) states: "A Board member shall not participate in any
Board or Board panel disposition of the member's initial
decision[.]" Ibid. (emphasis added). Under the plain language
of the statute, the board member is merely prohibited from acting
as an appellate reviewer of his or her own decision.
Here, the two-member panel and the three-member panel were
responsible for two different determinations, respectively,
13 A-2485-15T3 whether to parole Sanchez and how long his FET should be. The
three-member panel was not an appellate reviewer of the two-member
panel's denial of his parole request. Rather, the three-member
panel exclusively set the length of the FET.
It was the Board which reviewed the two-member panel's
decision to deny parole. All three members recused themselves
from participating in the Board's final agency decision.
Therefore, no board member reviewed his or her own "initial
decision" during this process, making the Board in compliance with
N.J.S.A. 10A:71-1.5(b).
Affirmed.
14 A-2485-15T3