DION BATTLE VS. NEW JERSEY STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-5254-16T3
DION BATTLE,
Appellant,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent.
_____________________________________
Submitted October 3, 2018 - Decided October 11, 2018
Before Judges Ostrer and Mayer.
On appeal from the New Jersey State Parole Board.
Dion Battle, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa Dutton Schaffer, Assistant
Attorney General, of counsel; Gregory R. Bueno,
Deputy Attorney General, on the brief).
PER CURIAM
Appellant Dion Battle appeals from a May 31, 2017 final agency decision
of the New Jersey State Parole Board (Board). Battle alleges the Board failed
to consider all relevant evidence when it denied his parole and imposed a
sixteen-month future eligibility term (FET). We disagree and affirm.
On May 29, 2009, Battle and another individual robbed a deli located in
Trenton, New Jersey. Battle was indicted on charges of robbery, unlawful
possession of a weapon, and possession of a weapon for unlawful purpose. He
eventually pleaded guilty to the first degree robbery charge, N.J.S.A. 2C:15-1,
and was sentenced to a six-year prison term with an eighty-five percent parole
ineligibility subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. In
addition, the sentencing court imposed a five-year term of parole supervision
upon Battle's release from prison.
Battle was denied parole for the first time on August 8, 2015, resulting in
a sixteen-month FET. He became eligible for parole a second time on January
29, 2017.
In September 2016, Battle's case was referred to a two-member Board
panel for a hearing. On December 6, 2016, the Board panel again denied Battle's
parole and imposed a sixteen-month FET. The Board panel denied parole for
the following reasons: extensive record of prior offenses; record of repetitive
offenses; failure to deter criminal behavior despite juvenile community
supervision; technical violations during prior community supervision; prior
A-5254-16T3
2
incarcerations failed to deter criminal behavior; multiple institutional
infractions; additional institutional infractions subsequent to the first parole
denial; and insufficient problem resolution. The panel concluded that Battle
"continues to act in a way consistent with his criminal thinking in a way that
puts all around him in danger." Additionally, the panel found Battle lacked an
adequate parole plan and noted Battle's risk assessment score indicated a
medium risk of recidivism.
The Board panel also considered various mitigating factors in its parole
determination. The panel noted Battle participated in behavioral and
institutional programs, which reported a favorable institutional adjustment.
Battle also demonstrated a positive adjustment to TC program/Assessment
Center/RCRP and achieved minimum custody status. Despite these mitigating
factors, the Board panel rejected battle's request for parole.
Battle filed an administrative appeal, and the matter was reviewed by the
full Board on May 31, 2017. After considering the administrative record, the
full Board affirmed the panel's decision, denying parole and establishing a
sixteen-month FET.
On appeal, Battle argues:
THE [BOARD] FINDINGS AND CONCLUSIONS TO
DENY APPELLANT RELEASE ON PAROLE AND
A-5254-16T3
3
IMPOSE AN EXCESSIVE (FET) UPON HIM WAS
CONTRARY TO THE MATERIAL FACTS.
Under our standard of review, we accord considerable deference to the
Board and its expertise in parole matters. Trantino v. N.J. State Parole Bd., 154
N.J. 19, 25 (1998) (Trantino IV) (quoting Beckworth v. N.J. State Parole Bd.,
62 N.J. 348, 359 (1973)). "The decision of a parole board involves 'discretionary
assessment[s] of a multiplicity of imponderables . . . .'" Trantino v. N.J. State
Parole Bd., 166 N.J. 113, 201 (2001) (Trantino V) (alteration in original)
(quoting Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 10
(1979)). The Board's decision regarding parole will not be disturbed unless
"arbitrary, capricious, or unreasonable, or [] not supported by substantial
credible evidence in the record as a whole." In re Stallworth, 208 N.J. 182, 194
(2011) (alteration in original) (citation omitted). With respect to the Board's
factual findings, we do not disturb them if they "could reasonably have been
reached on sufficient credible evidence in the whole record." Hare v. N.J. State
Parole Bd., 368 N.J. Super. 175, 179 (App. Div. 2004) (citing Trantino V, 166
N.J. at 201).
In reviewing Battle's application for parole, the Board considered the
following: his extensive and repetitive prior criminal record; that prior
opportunities on probation and parole failed to deter his criminal behavior; that
A-5254-16T3
4
prior opportunities on probation and parole were revoked for technical
violations, including use of CDS; his institutional infractions; that prior
incarcerations did not deter his criminal behavior; and the lack of an adequate
parole plan for reintegration into the community. Additionally, the Board found
Battle exhibited insufficient problem resolution, particularly substance abuse
issues, and that his continued behavior "puts all around him in danger." The
Board also took into account Battle's risk assessment evaluation. The Board
noted the same mitigating factors as the Board panel. Based on the foregoing,
the Board concluded, "a preponderance of the evidence indicates there is a
reasonable expectation that [Battle] will violate conditions of parole if released
on parole."
Applying our well-established standard of review and considering the
record, we affirm the Board's decision. The Board considered the relevant
factors in accordance with N.J.A.C. 10A:71-3.11 in determining that Battle is
substantially likely to commit another crime if released at this time.1 We shall
not second-guess the Board's conclusion that the negative factors outweighed
the positive, justifying denial of parole. We also are satisfied that the sixteen -
1
Although we cannot disclose the contents of the confidential parole mental
health evaluation, we note it supports the Board's decision.
A-5254-16T3
5
month FET was not arbitrary, capricious, nor unreasonable. See McGowan v.
N.J. State Parole Bd., 347 N.J. Super. 544, 565 (App. Div. 2002). The Board's
determination is supported by sufficient credible evidence and is entitled to
deference.
Affirmed.
A-5254-16T3
6