FRANK BOOKER VS. NEW JERSEY STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 15, 2018
• Docket: A-3816-16T2
• Status: Unpublished

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3816-16T2

FRANK BOOKER,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent. _____________________________

Submitted May 21, 2018 – Decided June 15, 2018

Before Judges Ostrer and Firko.

On appeal from the New Jersey State Parole Board.

Frank Booker, appellant pro se.

Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Erica R. Heyer, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Frank Booker appeals from the March 29, 2017 final

agency decision of the New Jersey State Parole Board (Board)

denying him parole and imposing a 144-month future eligibility

term (FET). We affirm. On January 27, 1987, a jury convicted appellant of murder and

aggravated arson. On April 6, 1987, appellant was sentenced to

life imprisonment with a thirty-year period of parole

ineligibility. He was also sentenced to five consecutive years

for arson. While incarcerated, appellant was indicted for

possession of a controlled dangerous substance (CDS). On October

22, 2001, he pled guilty to this charge and was sentenced to an

additional four-year concurrent term of incarceration.

Thereafter, appellant pled guilty on August 22, 2014, to conspiracy

to manufacture, distribute and disperse a CDS. He was sentenced

to a three-year concurrent term of incarceration.

Appellant became eligible for parole on January 6, 2016.

However, a two-member panel of the Board denied him parole on

January 19, 2016, and referred his case to a three-member panel

(panel) to establish a FET outside of the administrative

guidelines. The panel determined a 144-month FET was appropriate.

In an comprehensive decision, the panel noted the following

aggravating factors: (1) serious nature of the offenses; (2) his

extensive and repetitive prior criminal record; (3) his present

incarceration for multi-crime convictions; (4) his disciplinary

record during his current incarceration consisting of nine

disciplinary infractions, some of which were drug related and

several of which were offenses resulting in loss of commutation

2 A-3816-16T2 credits and confinement in administrative segregation; (5)

insufficient problem resolution, specifically, appellant's lack

of insight into his criminal behavior, minimization of his conduct,

and limited understanding of his inner rage; (6) his lack of an

adequate parole plan; (7) his risk evaluation score of 19,

indicating a high risk of recidivism; (8) his criminal record

becoming more serious; and (9) prior opportunities on community

supervision failed to deter his criminal behavior.

As mitigation, the panel considered appellant's participation

in institutional programs, including programs specific to

behavior; average to above average institutional reports; attempts

made to enroll in programs despite being denied admission; the

achievement and maintenance of minimum custody status; and letters

of support. In addition, the panel considered information

classified as confidential pursuant to N.J.A.C. 10A:71-2.2(c).

After considering the applicable factors in N.J.A.C. 10A:71-

3.11(b), the panel determined that appellant remained a

substantial threat to public safety, essentially for the reasons

enumerated above, warranting the setting of a FET that differed

from the presumptive term. The panel further found that, pursuant

to N.J.A.C. 10A:71-3.21(d), a 144-month FET was appropriate given

appellant's lack of rehabilitative progress, his lack of remorse

for his actions, and his justification for his criminal mindset.

3 A-3816-16T2 Parole supervision was not deemed appropriate. The 144-month FET

results in a projected parole eligibility date of April 22, 2022.

Appellant appealed the panel decision to the Board on August

29, 2016. On March 29, 2017, the Board upheld the recommendation

to deny parole and to impose a 144-month FET. This appeal ensued.

Appellant presents the following arguments for our consideration:

POINT ONE:

APPELLANT ARGUES THAT THE [BOARD] HAS IGNORED AND UNDERVALUED SUBSTANTIAL EVIDENCE AND RELIED ON THE SAME REPETITIVE, REDUNDANT, AND REPEATED JUSTIFICATIONS TO DENY PAROLE AND IMPOSE EXCESSIVE (FET) THAT IT HAS PREVIOUSLY EMPLOYED UNTO INMATES SERVING LIFE TERMS FOR MURDER.

POINT TWO:

APPELLANT CONTENDS THAT THE [BOARD] ERRONEOUSLY REACHED ITS DECISION TO DENY PAROLE BASED ON A PRECONCEIVED NOTION OF A SUBSTANTIAL LIKELIHOOD THAT HE WOULD COMMIT A NEW CRIME IF RELEASED ON PAROLE.

POINT THREE:

THE [BOARD] MISTAKENLY IMPOSED A[N] ONE- HUNDRED AND FOURTY-FOUR (144) MONTHS FUTURE ELIGIBILITY TERM (FET).

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

4 A-3816-16T2 expressed in the Parole 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. Therefore, 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).

We "must determine whether the factual finding could

reasonably have been reached on sufficient credible evidence in

the whole record." Id. at 179 (citations omitted). In making

this determination, we "may not substitute [our] judgment for that

of the agency, and an agency's exercise of its statutorily-

delegated responsibilities is accorded a strong presumption of

reasonableness." McGowan v. N.J. State Parole Bd., 347 N.J. Super.

544, 563 (App. Div. 2002) (citations omitted). Accordingly, "[t]he

burden of showing that an action was arbitrary, unreasonable or

capricious rests upon the appellant." Ibid.

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

5 A-3816-16T2 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. We are satisfied that

the denial of parole and the imposition of a 144-month FET was

neither arbitrary, capricious nor unreasonable. See McGowan, 347

N.J. Super. at 547 (affirming the imposition of a thirty-year FET

based on appellant's high likelihood of recidivism).

Affirmed.

6 A-3816-16T2