NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3273-16T2
JOHN MANDICH,
Appellant,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent. _____________________________
Submitted May 1, 2018 – Decided June 8, 2018
Before Judges Fisher and Moynihan.
On appeal from the New Jersey State Parole Board.
John Mandich, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for respondent (Jason W. Rockwell, Assistant Attorney General, of counsel; Erica R. Heyer, Deputy Attorney General, on the brief).
PER CURIAM
Appellant John Mandich contends that the New Jersey State
Parole Board's final decision denying his parole request and setting a 120-month future parole eligibility term (FET) was
arbitrary and capricious. We disagree and affirm.
Appellant became eligible for parole after serving almost all
of a thirty-year period of parole ineligibility attendant to a
life sentence for murder, N.J.S.A. 2C:11-3(a)(1), imposed in 1986.
A two-member Board panel, following a referral from a hearing
officer, denied parole and determined that an FET within the
presumptive schedule1 was possibly inappropriate. The two-member
panel therefore referred the matter to a three-member Board panel
for determination of an FET, which that panel set at 120 months.
The Board affirmed the decisions of both panels.
Appellant reprises the arguments made to the Parole Board
that the panels "over-counted [his] prior criminal conviction and
1 A standard FET of twenty-seven months applies when the Board denies parole to an inmate serving a sentence for murder. N.J.A.C. 10A:71-3.21(a)(1). The standard FET can be increased or decreased by nine months, that is, within a range of eighteen to thirty-six 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). But in setting an FET, the Board is not limited in all cases to that eighteen to thirty-six months range. A panel may establish an FET outside the range if the standard FET "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).
2 A-3273-16T2 probation . . . to deny parole and impose the FET" based on their
findings relating to: (1) the nature of appellant's criminal
record, (2) its increasing seriousness and (3) his prior
opportunity on community supervision. Acknowledging that only
five years elapsed between his prior probation and the murder, he
contends his thirty-year incarceration makes those factors "less
weighty" and that the use of those factors – and the absence of
any consideration of the factors' remoteness — was arbitrary and
capricious. He also argues the three-member panel did not give
"the same depth of consideration" to his prison history that it
gave to the murder, as evidenced by the absence in the panel's
notice of decision of: "mitigating factors, such as appellant's
minimal offense record, his participation in programs specific to
behavior, participation in institutional programs, favorable
institutional reports, attempt made to enroll in programs but was
not admitted and appellant's achievement of attaining minimum
custody status." The three-member panel, he also avers, "failed
to consider or mention the letters of support written by [his]
daughter."
The standard of review applicable to other administrative
agency decisions applies to our review of the Parole Board's
determinations. Trantino v. N.J. State Parole Bd. (Trantino IV),
154 N.J. 19, 24-25 (1998). "We may overturn the . . . Board's
3 A-3273-16T2 decisions only if they are arbitrary and capricious." Trantino
v. N.J. State Parole Bd. (Trantino V), 166 N.J. 113, 201 (2001).
Because the parole eligibility statute creates a presumption that
an inmate should be released on the inmate's eligibility date,
N.J.S.A. 30:4-123.53,2 decisions against release must be
considered arbitrary if they are not supported by a preponderance
of the evidence in the record. Kosmin v. N.J. State Parole Bd.,
363 N.J. Super. 28, 41-42 (App. Div. 2003).
"The decision of a parole board involves 'discretionary
assessment[s] of a multiplicity of imponderables . . . .'" Trantino
V, 166 N.J. at 201 (first alteration in original) (quoting
Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S.
1, 10 (1979)). "To a greater degree than is the case with other
administrative agencies, the Parole Board's decision-making
function involves individualized discretionary appraisals."
Trantino V, 166 N.J. at 201. We will not second-guess the Board's
application of its considerable expertise in sustaining the
panels' determinations. See, e.g., In re Vey, 272 N.J. Super.
199, 205-06 (App. Div. 1993), aff’d, 135 N.J. 306 (1994). The
2 Because appellant's offenses were committed in 1986, the governing standard, as then set forth in N.J.S.A. 30:4-123.53(a) (1979), required his release on parole unless it was established "by a preponderance of the evidence that there is a substantial likelihood that the inmate will commit a crime under the law of this State if released on parole at such time."
4 A-3273-16T2 Board's determination that "there is a substantial likelihood an
inmate will commit another crime if released" on parole must be
affirmed on appeal if that "factual finding could reasonably have
been reached on sufficient credible evidence in the whole record."
N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App.
Div. 1998).
Appellant's arguments fail to consider that the Board panels
and the Board are constrained to consider the factors set forth
in N.J.A.C. 10A:71-3.11(b), including those here considered and
found by the panels and the Board3: the facts and circumstances of
the offense;4 nature and pattern of previous convictions (an
aggravated assault for which he received a three-year probationary
sentence); adjustment to previous probation; commission of serious
disciplinary infractions (the three-member panel noted twenty-one
infractions, six of them serious, resulting in the loss of 330
days commutation credit and placement in detention, lock-up and
administrative segregation, with the last occurring in 2006);
mental and emotional health; and other relevant factors including
3 Because the determination to increase the FET beyond the guidelines-range involves the same factors that must be considered in deciding whether to grant or deny parole, N.J.A.C. 10A:71- 3.21(d); see N.J.A.C. 10A:71-3.11(b), we combine the panels' findings. 4 We will not repeat the grisly details of the violent murder; we note the specific circumstances that are documented in the record.
5 A-3273-16T2 his lack of insight into and minimization of his criminal conduct,
"limited understanding of his inner rage," "jealousy and self[-
]absorption [that] causes him to not yet get how violent was his
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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-3273-16T2
JOHN MANDICH,
Appellant,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent. _____________________________
Submitted May 1, 2018 – Decided June 8, 2018
Before Judges Fisher and Moynihan.
On appeal from the New Jersey State Parole Board.
John Mandich, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for respondent (Jason W. Rockwell, Assistant Attorney General, of counsel; Erica R. Heyer, Deputy Attorney General, on the brief).
PER CURIAM
Appellant John Mandich contends that the New Jersey State
Parole Board's final decision denying his parole request and setting a 120-month future parole eligibility term (FET) was
arbitrary and capricious. We disagree and affirm.
Appellant became eligible for parole after serving almost all
of a thirty-year period of parole ineligibility attendant to a
life sentence for murder, N.J.S.A. 2C:11-3(a)(1), imposed in 1986.
A two-member Board panel, following a referral from a hearing
officer, denied parole and determined that an FET within the
presumptive schedule1 was possibly inappropriate. The two-member
panel therefore referred the matter to a three-member Board panel
for determination of an FET, which that panel set at 120 months.
The Board affirmed the decisions of both panels.
Appellant reprises the arguments made to the Parole Board
that the panels "over-counted [his] prior criminal conviction and
1 A standard FET of twenty-seven months applies when the Board denies parole to an inmate serving a sentence for murder. N.J.A.C. 10A:71-3.21(a)(1). The standard FET can be increased or decreased by nine months, that is, within a range of eighteen to thirty-six 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). But in setting an FET, the Board is not limited in all cases to that eighteen to thirty-six months range. A panel may establish an FET outside the range if the standard FET "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).
2 A-3273-16T2 probation . . . to deny parole and impose the FET" based on their
findings relating to: (1) the nature of appellant's criminal
record, (2) its increasing seriousness and (3) his prior
opportunity on community supervision. Acknowledging that only
five years elapsed between his prior probation and the murder, he
contends his thirty-year incarceration makes those factors "less
weighty" and that the use of those factors – and the absence of
any consideration of the factors' remoteness — was arbitrary and
capricious. He also argues the three-member panel did not give
"the same depth of consideration" to his prison history that it
gave to the murder, as evidenced by the absence in the panel's
notice of decision of: "mitigating factors, such as appellant's
minimal offense record, his participation in programs specific to
behavior, participation in institutional programs, favorable
institutional reports, attempt made to enroll in programs but was
not admitted and appellant's achievement of attaining minimum
custody status." The three-member panel, he also avers, "failed
to consider or mention the letters of support written by [his]
daughter."
The standard of review applicable to other administrative
agency decisions applies to our review of the Parole Board's
determinations. Trantino v. N.J. State Parole Bd. (Trantino IV),
154 N.J. 19, 24-25 (1998). "We may overturn the . . . Board's
3 A-3273-16T2 decisions only if they are arbitrary and capricious." Trantino
v. N.J. State Parole Bd. (Trantino V), 166 N.J. 113, 201 (2001).
Because the parole eligibility statute creates a presumption that
an inmate should be released on the inmate's eligibility date,
N.J.S.A. 30:4-123.53,2 decisions against release must be
considered arbitrary if they are not supported by a preponderance
of the evidence in the record. Kosmin v. N.J. State Parole Bd.,
363 N.J. Super. 28, 41-42 (App. Div. 2003).
"The decision of a parole board involves 'discretionary
assessment[s] of a multiplicity of imponderables . . . .'" Trantino
V, 166 N.J. at 201 (first alteration in original) (quoting
Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S.
1, 10 (1979)). "To a greater degree than is the case with other
administrative agencies, the Parole Board's decision-making
function involves individualized discretionary appraisals."
Trantino V, 166 N.J. at 201. We will not second-guess the Board's
application of its considerable expertise in sustaining the
panels' determinations. See, e.g., In re Vey, 272 N.J. Super.
199, 205-06 (App. Div. 1993), aff’d, 135 N.J. 306 (1994). The
2 Because appellant's offenses were committed in 1986, the governing standard, as then set forth in N.J.S.A. 30:4-123.53(a) (1979), required his release on parole unless it was established "by a preponderance of the evidence that there is a substantial likelihood that the inmate will commit a crime under the law of this State if released on parole at such time."
4 A-3273-16T2 Board's determination that "there is a substantial likelihood an
inmate will commit another crime if released" on parole must be
affirmed on appeal if that "factual finding could reasonably have
been reached on sufficient credible evidence in the whole record."
N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App.
Div. 1998).
Appellant's arguments fail to consider that the Board panels
and the Board are constrained to consider the factors set forth
in N.J.A.C. 10A:71-3.11(b), including those here considered and
found by the panels and the Board3: the facts and circumstances of
the offense;4 nature and pattern of previous convictions (an
aggravated assault for which he received a three-year probationary
sentence); adjustment to previous probation; commission of serious
disciplinary infractions (the three-member panel noted twenty-one
infractions, six of them serious, resulting in the loss of 330
days commutation credit and placement in detention, lock-up and
administrative segregation, with the last occurring in 2006);
mental and emotional health; and other relevant factors including
3 Because the determination to increase the FET beyond the guidelines-range involves the same factors that must be considered in deciding whether to grant or deny parole, N.J.A.C. 10A:71- 3.21(d); see N.J.A.C. 10A:71-3.11(b), we combine the panels' findings. 4 We will not repeat the grisly details of the violent murder; we note the specific circumstances that are documented in the record.
5 A-3273-16T2 his lack of insight into and minimization of his criminal conduct,
"limited understanding of his inner rage," "jealousy and self[-
]absorption [that] causes him to not yet get how violent was his
potential," and his underestimation of future challenges. Also
considered was a Level of Service Inventory – Revised risk
assessment evaluation (LSI-R) on which appellant scored 19,
indicating a moderate risk of recidivism. The three-member panel
also considered a psychological evaluation that utilized the LSI-
R in preparing the evaluation.5 And contrary to appellant's
contentions, the panels and Board did consider, as also required
by N.J.A.C 10A:71-3.11(b): his minimal offense record;
opportunities on community supervision without violations;
participation in programs specific to behavior and institutional
programs; institutional reports reflecting favorably on his
adjustment; attempts to enroll in programs to which he was not
admitted; achievement and maintenance of minimum custody; and the
restoration of commutation time. The letters sent by appellant's
daughter were included in the file considered by the three-member
panel, as found by the Board.
We are satisfied the Board, as mandated by N.J.A.C. 10A:71-
3.11(a), based its decision "on the aggregate of all pertinent
5 Those documents were provided to us in a confidential appendix.
6 A-3273-16T2 factors." The record, including the three-member panel's
comprehensive eight-page narrative notice of decision detailing
its reasons for meting out a 120-month FET, belies all of
appellant's contentions. We affirm the Board's decision – amply
supported by the record – for the reasons set forth in its final
decision. Although mitigating factors applied and were considered
in appellant's case, it was within the Board's discretionary power
to determine that the considerations in favor of finding that
there is a substantial likelihood appellant would commit another
crime if released on parole outweigh those mitigating
considerations. We do not substitute our judgment for that of the
Board with respect to denial of parole or the setting of an FET.
See Cestari, 224 N.J. Super. at 547. The Board applied the correct
legal standard and considered the relevant factors under N.J.A.C.
10A:71-3.11(b) in deciding to deny parole and to set a 120-month
FET. On the record presented, its decision was not arbitrary or
capricious, see McGowan v. N.J. State Parole Bd., 347 N.J. Super.
544, 563 (App. Div. 2002), and we conclude that the Board did not
abuse its discretion in denying appellant's application for
release on parole.
Affirmed.
7 A-3273-16T2