Horace Cowan v. New Jersey State Parole Board ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-1131-20
HORACE COWAN,
Petitioner-Appellant,
v.
NEW JERSEY STATE
PAROLE BOARD,
Respondent-Respondent.
_________________________
Submitted December 12, 2023 – Decided January 25, 2024
Before Judges Whipple and Enright.
On appeal from the New Jersey State Parole Board.
Horace Cowan, appellant pro se.
Matthew J. Platkin, Attorney General, attorney for
respondent (Janet Greenberg Cohen, Assistant Attorney
General, of counsel; Christopher C. Josephson, Deputy
Attorney General, on the brief).
PER CURIAM
Horace Cowan, an inmate at East Jersey State Prison, appeals from the
November 18, 2020 final agency decision (FAD) denying him parole and
imposing a 200-month future eligibility term (FET).
On February 18, 1990, Cowan shot an individual and fled the scene. He
was arrested and charged with murder, possession of a weapon for an unlawful
purpose, possession of a sawed-off shotgun and hindering apprehension or
prosecution. In 1991, while awaiting trial at Monmouth County Jail for the 1990
shooting, Cowan, assisted by two other inmates, hit a corrections officer, tied
him up and proceeded to escape the jail through a window.
For the 1990 shooting, Cowan was convicted of aggravated manslaughter,
possession of a weapon for an unlawful purpose and possession of a sawed-off
shotgun. He was sentenced to an aggregate life term, with a mandatory
minimum of twenty-five years.
As to the county jail incident, Cowan pled guilty to conspiracy to commit
aggravated assault, criminal restraint, and escape. He was sentenced to an
aggregate term of ten years with a mandatory minimum of five years,
consecutive to the manslaughter sentence. In total, Cowan is serving a custodial
sentence of life imprisonment with a mandatory minimum of thirty years for
aggravated manslaughter, possession of a weapon for an unlawful purpose,
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possession of a sawed-off shotgun, conspiracy to commit aggravated assault,
criminal restraint, and escape.
During his incarceration, Cowan has committed twenty-one institutional
disciplinary infractions and lost 725 days of commutation credits due to his
infractions. His last disciplinary infraction occurred on August 22, 2018, for
refusing to accept a work/housing assignment.
On February 19, 2020, Cowan became eligible for parole. The Parole
Board (Board) held an initial hearing on November 8, 2019, and referred the
matter to a Board panel. On January 2, 2020, the Two Member panel denied
parole due to: facts and circumstances of the offense; his extensive prior offense
and incarceration record; his offenses during probation; the lack of deterrence
of criminal behavior by prior incarcerations; his institutional disciplinary
infraction; lack of proper problem resolution; and lastly, his risk of recidivism.
The Two Member Board Panel found the following mitigating factors:
opportunities on community supervision committed without violation;
participation in programs specific to behavior; favorable institutional
adjustment; and attempt to enroll and participate in programs.
The Two Member panel's January 2, 2020 determination to deny parole
was then referred to a Three Member Board Panel for the establishment of an
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FET. On May 6, 2020, the Three Member panel established a 200-month FET.
The panel explained its reasoning in a ten-page decision, relying on much of the
same factors discussed and found by the Two Member panel. Cowan appealed
to the full Board.
The full Board issued its FAD on November 18, 2020, affirming the 200 -
month FET and denial of parole, finding no merit to Cowan's challenges. This
appeal followed.
Our review of final decisions of the Board is limited. Malacow v. N.J.
Dep't of Corr., 457 N.J. Super. 87, 93 (App. Div. 2018). The Board's decisions,
like those of other administrative agencies, will not be reversed unless they are
"arbitrary, capricious or unreasonable or [are] not supported by substantial
credible evidence in the record as a whole." Henry v. Rahway State Prison, 81
N.J. 571, 579 (1980). This limited review of parole determinations accords
agency action a presumption of validity and reasonableness. In re Vey, 272 N.J.
Super. 199, 205 (App. Div. 1993). The burden is on the challenging party to
show the Board's actions were unreasonable. Bowden v. Bayside State Prison,
268 N.J. Super. 301, 304-05 (App. Div. 1993).
Pursuant to N.J.S.A. 30:4-123.53(a), the Board should generally grant
parole requests for release on an inmate's parole date unless it can be shown by
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a preponderance of the evidence that there is an indication the inmate failed to
cooperate in his or her rehabilitation or there is a "reasonable expectation that
the inmate will violate conditions of parole." In determining Cowan should not
be released on parole, the Board considered both mitigating and aggravating
factors. The Board noted Cowan's criminal history was extensive, and his prior
experiences with the probation system did not deter him from other criminal
behavior. The Board also considered Cowan's insufficient problem resolution
skills and lack of insight into his own behavior.
As such, the Board considered all the factors of Cowan's criminal history
and twenty-one infractions while incarcerated. Therefore, there was sufficient
evidence to support the reasons the Board gave to deny parole. Thus, the Board,
in finding that the record demonstrated a potential for recidivism, was well
within its discretion to deny Cowan parole.
Cowan argues the imposition of a 200-month FET is arbitrary. The
standard FET is twenty-seven months, but pursuant to N.J.A.C. 10A:71-3.21(c),
can be increased or decreased up to nine months if other characteristics of the
inmate warrant such adjustment. However, an FET can be exceeded if it 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).
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The review of an FET also focuses on the likelihood of recidivism. McGowan
v. N.J. State Parole Bd., 347 N.J. Super. 544, 565 (App. Div. 2002).
The imposition of the 200-month FET was not arbitrary, capricious, or
unreasonable because the decision is supported by sufficient credible evidence
on the record. R. 2:11-3(e)(1)(D). The Board in its detailed ten-page decision
outlined all the reasons and considerations leading to the 200-month FET, noting
Cowan lacked insight into his criminal behavior and committed twenty-one
infractions, eight of which were serious in nature. The most recent infractions
occurred in 2018, for disruption, fighting, and rejecting work assignments.
The Board found Cowan needed to "develop a better understanding to the
dynamics of [his] personality defects that impelled [him] to criminal behavior"
and that there "were multiple factors that impelled [him] to criminal cond uct"
which he had not yet appreciated. The Board further found Cowan needed to
better assess and understand his triggers to be able to rectify his behavior and
enhance his interactions with others.
Furthermore, with a focus on the potential for recidivism, the Board found
the 200-month FET was "necessary in order to address the issues detailed" in its
decision since Cowan had not made adequate progress in his rehabilitative
process.
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The Board also considered mitigating factors such as Cowan's
involvement in programming for anger management and other counseling, but
determined Cowan would benefit from further programming given his history
of infractions. The Board did highlight that the parole eligibility could be
reduced by commutation credits, making his current eligibility parole date
September 2031.
In sum, the Board's decision to impose a 200-month FET was not
arbitrary, capricious or unreasonable. The Board considered the aggregate of
all pertinent factors including those set forth in N.J.A.C. 10A:71-3.11(b), and
its findings are supported by sufficient, credible evidence in the record.
Affirmed.
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