CARLOS COLON VS. NEW JERSEY STATE PAROLE BOARD NEW JERSEY STATE PAROLE BOARD)

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1468-15T3

CARLOS COLON,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent. ___________________________

Submitted May 15, 2017 – Decided May 30, 2017

Before Judges Haas and Geiger.

On appeal from New Jersey State Parole Board.

Carlos Colon, 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).

Appellant Carlos Colon appeals from the August 26, 2015 final

administrative decision of the New Jersey State Parole Board

("Board") denying him parole and imposing a ninety-month Future

Eligibility Term ("FET"). We affirm. On May 10, 1985, appellant pled guilty to first-degree murder,

first-degree robbery, and fourth-degree unlawful possession of a

weapon. On June 14, 1985, the trial court merged the robbery and

weapons possession counts into the murder conviction and sentenced

appellant to life in prison, with a thirty-year period of parole

ineligibility.

In September 2014, appellant became eligible for parole

consideration for the first time. On September 12, 2014, a two-

member panel of the Board denied parole for several reasons. Among

other things, the panel noted appellant's extensive and repetitive

criminal record, his past failures to respond favorably to

community supervision, and the eleven disciplinary infractions he

committed while incarcerated. In addition, the panel found that

appellant exhibited insufficient insight into his criminal

behavior, and failed to express any remorse for the death of his

victim.

A three-member Board panel thereafter recommended a ninety-

month FET. The full Board ratified that decision, finding without

merit appellant's challenges to both the parole denial and the

length of the FET. This appeal followed.

On appeal, appellant contends that the Board's decision is

arbitrary and capricious and should be set aside. He also argues

that the ninety-month FET is excessive. We disagree.

2 A-1468-15T3 We must accord considerable deference to the Board and its

expertise in parole matters. Our standard of review of the Board's

decisions is limited, and "grounded in strong public policy

concerns and practical realities." Trantino v. N.J. State Parole

Bd., 166 N.J. 113, 200 (2001) ("Trantino V"). "The decision of a

parole board involves 'discretionary assessment[s] of a

multiplicity of imponderables[.]'" Id. at 201 (alteration in

original) (quoting Greenholtz v. Inmates of Neb. Penal & Corr.

Complex, 442 U.S. 1, 10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668,

677 (1979)).

"To a greater degree than is the case with other

administrative agencies, the Parole Board's decision-making

function involves individualized discretionary appraisals." Ibid.

(citing Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 358-59

(1973)). Consequently, our courts "may overturn the Parole Board's

decisions only if they are arbitrary and capricious." Ibid. We

will not disturb the Board's factual findings if they "could

reasonably have been reached on sufficient credible evidence in

the whole record." Id. at 172 (quoting Trantino v. N.J. State

Parole Bd., 154 N.J. 19, 24 (1998) ("Trantino IV") (quoting N.J.

State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.),

certif. denied, 111 N.J. 649 (1988))); see also McGowan v. N.J.

3 A-1468-15T3 State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002)

(applying that standard).

Having reviewed the record in light of these well-accepted

standards, including the materials in the confidential appendix,

we conclude that appellant's arguments are without sufficient

merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(D). There is abundant support in the record for a

conclusion that there is a "substantial likelihood that

[appellant] will commit a crime . . . if released on parole" at

this time. N.J.S.A. 30:4-123.53(a) (amended 1997). Therefore,

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

parole.

We likewise are satisfied that the ninety-month FET imposed

by the Board, although lengthy, is neither arbitrary nor

capricious. An inmate serving a sentence for murder is ordinarily

assigned a twenty-seven month FET after a denial of parole.

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 an FET in excess of

administrative guidelines. N.J.A.C. 10A:71-3.21(d). As noted

above, the Board found that appellant has thus far been unable to

identify the causes of his criminal behavior, and has failed to

4 A-1468-15T3 develop adequate and appropriate insight in how to prevent himself

from engaging in future criminal conduct. He also continues to

commit infractions of prison rules while incarcerated. Under the

totality of these circumstances, the Board appropriately imposed

a ninety-month FET.

Finally, appellant argues that because Board members Lloyd

Henderson and James Jefferson served as the two-member panel that

considered his parole application in the first instance, they were

barred from being part of the three-member panel, with Board member

Julio Marenco, that established his ninety-month FET. This

contention lacks merit.

N.J.A.C. 10A:71-1.5(b) states that "[a] Board member shall

not participate in any Board or Board panel disposition of the

member's initial decision[.]" (emphasis added). Contrary to

appellant's contention, the three-member panel did not review the

two-member panel's initial decision to deny appellant's parole

request. Rather, the three-member panel's sole task was to set

the FET. All three Board members thereafter recused themselves

from participating in the full Board's final agency decision.

Thus, no Board member sat in direct review of his own "initial

decision" during the application process and, therefore, the Board

clearly complied with the requirements of N.J.A.C. 10A:71-1.5(b).

Affirmed.

5 A-1468-15T3