NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4030-16T1
ARTHUR RICHARDSON,
Appellant,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent. ________________________________________
Submitted May 30, 2018 – Decided June 18, 2018
Before Judges Carroll and Mawla.
On appeal from the New Jersey State Parole Board.
Arthur Richardson, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Erica R. Heyer, Deputy Attorney General, on the brief).
PER CURIAM
Appellant Arthur Richardson appeals from the April 19, 2017
final agency decision of the New Jersey State Parole Board (Board) denying him parole and imposing a ninety-six-month future
eligibility term (FET). We affirm.
In January 1987, a jury convicted appellant of murder and
unlawful possession of a weapon. On March 27, 1987, appellant was
sentenced to life imprisonment with a thirty-year mandatory
minimum period of parole ineligibility.
Appellant became eligible for parole for the first time on
June 22, 2016. However, a two-member panel of the Board denied
him parole and referred his case to a three-member panel (panel)
to establish an FET. The panel determined a ninety-six-month FET
was appropriate.
In a comprehensive decision, the panel noted: (1) the serious
nature of the murder offense; (2) appellant has a prior criminal
record that is both extensive and repetitive; (3) the nature of
appellant's criminal record was increasingly more serious; (4)
prior opportunities on probation and parole and previous
incarceration failed to deter his criminal conduct; (5) on January
29, 2009, during his incarceration for the subject offenses,
appellant committed a disciplinary infraction resulting in
sanctions; (6) insufficient problem resolution, including
appellant's lack of insight into his criminal behavior, minimizing
his maladaptive behavior, and his inability to "communicate any
understanding or change in his criminal thinking and lack of
2 A-4030-16T1 emotional control;" and (6) his risk assessment evaluation score
of twenty two, which denotes a medium risk of recidivism.
As mitigating factors, the panel noted: (1) appellant's
participation in institutional programs; (2) institutional reports
reflected favorable institutional adjustment; (3) appellant
attempted to enroll and participate in programs but was not
admitted; and (4) appellant had achieved/maintained minimum
custody status.
After considering the applicable factors in N.J.A.C. 10A:71-
3.11(b), the panel determined a substantial likelihood existed
that appellant would commit a new crime if released on parole, and
that a FET of ninety-six months was appropriate. Because
appellant's present offenses were committed prior to August 19,
1997, the panel observed the ninety-six month FET, which commenced
on June 22, 2016, will be reduced by any commutation, work, or
minimum custody credits appellant earns. Accordingly, appellant's
projected parole eligibility date is January 2021.
Appellant filed an appeal with the full Board. On April 19,
2017, the Board upheld the recommendation to deny parole and to
impose a ninety-six-month FET. This appeal ensued.
On appeal, appellant argues, among other things: the Board
acted unreasonably in denying his parole request and imposing a
ninety-six-month FET; because he has a murder conviction, the
3 A-4030-16T1 decision to deny parole or impose an extended FET should have been
made by the full Board, rather than two and three-member panels;
and the Board failed to consider various programs appellant
completed in its parole deliberations.
We have considered these contentions in light of the record
and applicable legal principles and conclude they are without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(D). We affirm substantially for the reasons
expressed in the Board's comprehensive written decision. We add
only the following brief comments.
We must accord considerable deference to the Board and its
expertise in parole matters. 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). "'Parole Board decisions are
highly individualized discretionary appraisals,' and should only
be reversed if found to be arbitrary or capricious." Id. at 179-
80 (citations omitted) (quoting Trantino v. N.J. State Parole Bd.,
166 N.J. 113, 173 (2001) (Trantino VI)). We "must determine
whether the factual finding could reasonably have been reached on
sufficient credible evidence in the whole record." Id. at 179
(citing Trantino VI, 166 N.J. at 172). In making this
determination, we "may not substitute [our] judgment for that of
the agency, and an agency's exercise of its statutorily-delegated
4 A-4030-16T1 responsibilities is accorded a strong presumption of
reasonableness." McGowan v. N.J. State Parole Bd., 347 N.J. Super.
544, 563 (App. Div. 2002) (citation omitted). Accordingly, "[t]he
burden of showing that an action was arbitrary, unreasonable or
capricious rests upon the appellant." Ibid.
Where, as here, the crime for which an inmate is incarcerated
occurred before August 19, 1997, "the Board panel shall determine
whether . . . by a preponderance of the evidence . . . there is a
substantial likelihood that the inmate will commit a crime under
the laws of the State of New Jersey if released on parole."
N.J.A.C. 10A:71-3.10(a). Thus, when an inmate becomes eligible
for parole, there is a "presumption in favor of parole," In re
Trantino, 89 N.J. 347, 356 (1982) (Trantino II), and the burden
is on "the State to prove that the prisoner is a recidivist and
should not be released." Trantino VI, 166 N.J. at 197 (quoting
N.J. State Parole Bd. v. Byrne, 93 N.J. 192, 205 (1983)). This
is a "highly predictive" determination, Thompson v. N.J. State
Parole Bd., 210 N.J. Super. 107, 115 (App. Div. 1986) (quoting
Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)),
which must take into account "the aggregate of all of the factors
which may have any pertinence." Beckworth, 62 N.J. at 360.
N.J.A.C. 10A:71-3.11(b)(1) to (23) contains a non-exhaustive
list of factors that the Board may consider in determining whether
5 A-4030-16T1 an inmate should be released on parole. Among the pertinent
factors are "[s]tatements by the inmate reflecting on the
likelihood that he or she will commit another crime; the failure
to cooperate in his or her own rehabilitation; or the reasonable
expectation that he or she will violate conditions of parole[]"
as well as "any other factors deemed relevant[.]" N.J.A.C. 10A:71-
3.11(b)(17). "[T]he Board [must] focus its attention squarely on
the likelihood of recidivism." McGowan, 347 N.J. Super. at 565.
An inmate serving a minimum term in excess of fourteen years
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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-4030-16T1
ARTHUR RICHARDSON,
Appellant,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent. ________________________________________
Submitted May 30, 2018 – Decided June 18, 2018
Before Judges Carroll and Mawla.
On appeal from the New Jersey State Parole Board.
Arthur Richardson, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Erica R. Heyer, Deputy Attorney General, on the brief).
PER CURIAM
Appellant Arthur Richardson appeals from the April 19, 2017
final agency decision of the New Jersey State Parole Board (Board) denying him parole and imposing a ninety-six-month future
eligibility term (FET). We affirm.
In January 1987, a jury convicted appellant of murder and
unlawful possession of a weapon. On March 27, 1987, appellant was
sentenced to life imprisonment with a thirty-year mandatory
minimum period of parole ineligibility.
Appellant became eligible for parole for the first time on
June 22, 2016. However, a two-member panel of the Board denied
him parole and referred his case to a three-member panel (panel)
to establish an FET. The panel determined a ninety-six-month FET
was appropriate.
In a comprehensive decision, the panel noted: (1) the serious
nature of the murder offense; (2) appellant has a prior criminal
record that is both extensive and repetitive; (3) the nature of
appellant's criminal record was increasingly more serious; (4)
prior opportunities on probation and parole and previous
incarceration failed to deter his criminal conduct; (5) on January
29, 2009, during his incarceration for the subject offenses,
appellant committed a disciplinary infraction resulting in
sanctions; (6) insufficient problem resolution, including
appellant's lack of insight into his criminal behavior, minimizing
his maladaptive behavior, and his inability to "communicate any
understanding or change in his criminal thinking and lack of
2 A-4030-16T1 emotional control;" and (6) his risk assessment evaluation score
of twenty two, which denotes a medium risk of recidivism.
As mitigating factors, the panel noted: (1) appellant's
participation in institutional programs; (2) institutional reports
reflected favorable institutional adjustment; (3) appellant
attempted to enroll and participate in programs but was not
admitted; and (4) appellant had achieved/maintained minimum
custody status.
After considering the applicable factors in N.J.A.C. 10A:71-
3.11(b), the panel determined a substantial likelihood existed
that appellant would commit a new crime if released on parole, and
that a FET of ninety-six months was appropriate. Because
appellant's present offenses were committed prior to August 19,
1997, the panel observed the ninety-six month FET, which commenced
on June 22, 2016, will be reduced by any commutation, work, or
minimum custody credits appellant earns. Accordingly, appellant's
projected parole eligibility date is January 2021.
Appellant filed an appeal with the full Board. On April 19,
2017, the Board upheld the recommendation to deny parole and to
impose a ninety-six-month FET. This appeal ensued.
On appeal, appellant argues, among other things: the Board
acted unreasonably in denying his parole request and imposing a
ninety-six-month FET; because he has a murder conviction, the
3 A-4030-16T1 decision to deny parole or impose an extended FET should have been
made by the full Board, rather than two and three-member panels;
and the Board failed to consider various programs appellant
completed in its parole deliberations.
We have considered these contentions in light of the record
and applicable legal principles and conclude they are without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(D). We affirm substantially for the reasons
expressed in the Board's comprehensive written decision. We add
only the following brief comments.
We must accord considerable deference to the Board and its
expertise in parole matters. 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). "'Parole Board decisions are
highly individualized discretionary appraisals,' and should only
be reversed if found to be arbitrary or capricious." Id. at 179-
80 (citations omitted) (quoting Trantino v. N.J. State Parole Bd.,
166 N.J. 113, 173 (2001) (Trantino VI)). We "must determine
whether the factual finding could reasonably have been reached on
sufficient credible evidence in the whole record." Id. at 179
(citing Trantino VI, 166 N.J. at 172). In making this
determination, we "may not substitute [our] judgment for that of
the agency, and an agency's exercise of its statutorily-delegated
4 A-4030-16T1 responsibilities is accorded a strong presumption of
reasonableness." McGowan v. N.J. State Parole Bd., 347 N.J. Super.
544, 563 (App. Div. 2002) (citation omitted). Accordingly, "[t]he
burden of showing that an action was arbitrary, unreasonable or
capricious rests upon the appellant." Ibid.
Where, as here, the crime for which an inmate is incarcerated
occurred before August 19, 1997, "the Board panel shall determine
whether . . . by a preponderance of the evidence . . . there is a
substantial likelihood that the inmate will commit a crime under
the laws of the State of New Jersey if released on parole."
N.J.A.C. 10A:71-3.10(a). Thus, when an inmate becomes eligible
for parole, there is a "presumption in favor of parole," In re
Trantino, 89 N.J. 347, 356 (1982) (Trantino II), and the burden
is on "the State to prove that the prisoner is a recidivist and
should not be released." Trantino VI, 166 N.J. at 197 (quoting
N.J. State Parole Bd. v. Byrne, 93 N.J. 192, 205 (1983)). This
is a "highly predictive" determination, Thompson v. N.J. State
Parole Bd., 210 N.J. Super. 107, 115 (App. Div. 1986) (quoting
Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)),
which must take into account "the aggregate of all of the factors
which may have any pertinence." Beckworth, 62 N.J. at 360.
N.J.A.C. 10A:71-3.11(b)(1) to (23) contains a non-exhaustive
list of factors that the Board may consider in determining whether
5 A-4030-16T1 an inmate should be released on parole. Among the pertinent
factors are "[s]tatements by the inmate reflecting on the
likelihood that he or she will commit another crime; the failure
to cooperate in his or her own rehabilitation; or the reasonable
expectation that he or she will violate conditions of parole[]"
as well as "any other factors deemed relevant[.]" N.J.A.C. 10A:71-
3.11(b)(17). "[T]he Board [must] focus its attention squarely on
the likelihood of recidivism." McGowan, 347 N.J. Super. at 565.
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, 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[,]" the Board may impose a greater FET. N.J.A.C.
10A:71-3.21(d).
Here, we discern no basis to disturb the Board's decision.
The Board considered the relevant factors in N.J.A.C. 10A:71-3.11.
Its decision is supported by sufficient credible evidence in the
record and is entitled to our deference. Contrary to appellant's
contention, there is no evidence the panel or the Board failed to
consider his completed programs or other appropriate mitigating
factors in their parole deliberations.
6 A-4030-16T1 As noted, because appellant's offense was committed in 1986,
pursuant to N.J.A.C. 10A:71-3.10(a), the proper standard is that
an inmate shall be released on parole unless, "by a preponderance
of the evidence . . . there is a substantial likelihood that the
inmate will commit a crime under the laws of the State of New
Jersey if released on parole." The Board correctly applied that
standard here.
Finally, appellant's contention that his case should have
been heard by the full Board rather than a two or three member
panel because only the full Board has the authority to grant parole
is without merit. As the Board explained in its April 19, 2017
decision, N.J.A.C. 10A:71-3.18(c) does not permit a Board panel
to certify release in the case of an offender serving a term of
imprisonment for murder. Rather, if the panel determines release
is appropriate, the matter is automatically referred to the full
Board for a hearing. Ibid. Here, as the Board correctly noted,
the two-member panel did not recommend appellant's release.
Rather, it determined parole was not appropriate and consequently
it referred the matter to the three-member panel to impose an
extended FET.
In sum, we are satisfied the decision to deny parole and
impose a ninety-six-month FET was neither arbitrary, capricious
nor unreasonable. See McGowan, 347 N.J. Super. at 565 (affirming
7 A-4030-16T1 the imposition of a thirty-year FET based on appellant's high
likelihood of recidivism).
Affirmed.
8 A-4030-16T1