WAYNE COLE VS. NEW JERSEY STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD)

NOT FOR PUBLICATION WITHOUT THE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-2010-14T4
WAYNE COLE,
Appellant,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent.
______________________________________
Submitted December 21, 2016 – Decided May 9, 2017
Before Judges Simonelli and Gooden Brown.
On appeal from the New Jersey State Parole
Board.
Wayne Cole, appellant pro se.
Christopher S. Porrino, Attorney General,
attorney for respondent (Lisa A. Puglisi,
Assistant Attorney General, of counsel;
Christopher C. Josephson, Deputy Attorney
General, on the brief).
PER CURIAM
Appellant Wayne Cole, an inmate at Northern State Prison,
appeals from the August 27, 2014 final agency decision of the
State Parole Board (Board), which affirmed the decision of a three-
member Board Panel (Panel) to deny parole and impose a 168-month
future eligibility term (FET). For the reasons that follow, we
affirm.
Cole was charged in a seventy-count indictment with attempted
murder (eleven counts), kidnapping (three counts), aggravated
assault (forty-seven counts), endangering the welfare of a child
(two counts), weapons offenses (four counts), armed burglary (two
counts), and criminal mischief (one count). The charges stemmed
from Cole holding his paramour and her two young children hostage
in a motel room at gunpoint. Cole fired at several police officers
who responded to the domestic dispute during a lengthy stand-off
that finally ended with Cole surrendering. Following a jury trial,
Cole was convicted of sixty-three of the seventy counts and, after
appropriate mergers, was sentenced on twenty-four counts to an
aggregate term of 123 years' imprisonment with fifty-two and one-
half years of parole ineligibility pursuant to the No Early Release
Act, N.J.S.A. 2C:43-7.2.
On appeal, we reversed Cole's convictions and remanded for a
new trial. On March 1, 2000, Cole pled guilty to one count of
first-degree kidnapping, N.J.S.A. 2C:13-1(a); one count of second-
degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a);
and five counts of first-degree attempted murder, N.J.S.A. 2C:5-1
and N.J.S.A. 2C:11-3. On March 29, 2000, Cole was sentenced to
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an aggregate term of forty years' imprisonment with a twenty-year
period of parole ineligibility.
Cole became eligible for parole on December 23, 2013. A
hearing officer conducted an initial hearing on July 3, 2013, and
referred the matter to a Panel. After conducting an interview and
considering documentation in the case file as well as confidential
materials and a professional report, on August 23, 2013, a two-
member Panel denied Cole parole. To support the denial, the Panel
cited prosecutorial objection; Cole's prior criminal record;1 the
failure of a prior incarceration to deter his criminal behavior;
and Cole's commission of numerous, persistent, and serious
institutional infractions, which were consistent with his prior
criminal record and resulted in the loss of commutation time,
confinement in detention and administrative segregation.2
In addition, the Panel relied on Cole's insufficient problem
resolution skills, evidenced by a lack of insight into his criminal
behavior, his denial of his crimes, his minimization of his
1 Cole was previously convicted for shoplifting and possession of
a controlled dangerous substance. On the drug charge, he received
a one-year prison sentence.
2 As of August 23, 2013, Cole had committed thirty-one
institutional infractions, the most recent occurring on February
28, 2013. At least eleven infractions were asterisk offenses.
Asterisk offenses "are considered the most serious and result in
the most severe sanctions[.]" N.J.A.C. 10A:4-4.1(a).
3 A-2010-14T4
conduct, and his failure to sufficiently address a substance abuse
problem despite blaming his crimes on alcohol. The Panel also
noted that Cole lacked remorse and has taken "no responsibility
for his assaultive behavior[,] which has continued in prison[.]"
In mitigation, the Panel considered Cole's participation in
institutional programs, his average to above-average institutional
reports, his attempts to enroll and participate in programs,
although not admitted, and the restoration of commutation time.
Nonetheless, the Panel denied parole finding "a substantial
likelihood" that Cole would commit a new crime if released on
parole and referred the matter to a three-member Panel for the
establishment of a FET in excess of the regulatory guidelines.
In a January 14, 2014 written decision, the three-member
Panel affirmed the denial of parole and imposed a 168-month FET
pursuant to N.J.A.C. 10A:71-3.21(d).3 After considering the
factors enumerated in N.J.A.C. 10A:71-3.11,4 the Board determined
3 N.J.A.C. 10A:71-3.21(d) authorizes a three-member Panel to
"establish a future parole eligibility date which differs from
that required by the provisions of (a) or (b) and (c) . . . if the
future parole eligibility date which would be established pursuant
to such subsections is clearly inappropriate due to the inmate's
lack of satisfactory progress in reducing the likelihood of future
criminal behavior."
4 N.J.A.C. 10A:71-3.11(a) provides that "[p]arole decisions shall
be based on the aggregate of all pertinent factors . . . ."
Subsection (b) provides that "[t]he hearing officer, Board panel
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"that the factors supporting the denial of parole, collectively,
[were] of such a serious nature as to warrant the setting of a
[FET] which differs from the presumptive term[,]" and any term
less than a 168-month FET "would be wholly inconsistent with the
conclusion that, after nineteen . . . years of incarceration,
[Cole] ha[d] not shown the requisite amount of rehabilitative
progress in reducing the likelihood of future criminal activity."
Cole appealed both the two-member and the three-member Panel
decisions to the full Board. In an August 27, 2014 final written
decision, the Board affirmed the denial of parole and the
imposition of a 168-month FET term. The Board concurred with the
two-member Panel's determination that "a preponderance of
evidence" indicated "that there [was] a substantial likelihood
that [Cole] would commit a crime if released on parole at this
time." The Board also concurred with the determination of the
three-member Panel to establish a 168-month FET.
In addressing Cole's assertion that the Panels considered an
incomplete record, which omitted his participation in several
programs, the Board noted that the Panels amended their respective
decisions to include his participation in those programs as a
or Board shall consider [the twenty-three enumerated factors] and,
in addition, may consider any other factors deemed relevant" at a
parole hearing.
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mitigating factor. However, the Board also noted the inclusion
of Cole's Risk Assessment Evaluation Score of thirty-seven, which
was indicative of a high risk for recidivism, and pointed out that
notwithstanding these amendments, the Panel decisions remained
unchanged.
The Board confirmed that, given Cole's sentence date, the
appropriate parole release standard was "whether the preponderance
of evidence indicate[d] a substantial likelihood that [Cole] would
commit a new crime if released on parole" and rejected Cole's
contention that the Panels applied an incorrect standard. The
Board also rejected Cole's argument that the Panels based their
decisions solely "on the negative aspects in the record[.]"
Rather, the Board concluded that the Panels considered "the entire
record governed by the factors set forth in . . . N.J.A.C. 10A:71-
3.11."
In addition, the Board found that the Panels properly
considered Cole's "commission of serious disciplinary infractions"
as permitted under N.J.A.C. 10A:71-3.11(b)(2), and Cole's
"adjustment to incarceration to determine [his] suitability for
parole[,]" as permitted under N.J.A.C. 10A:71-3.11(b)(4).
Similarly, Cole's statements "reflecting on the substantial
likelihood that he will commit another crime[,]" were properly
considered by the Panels pursuant to N.J.A.C. 10A:71-3.11(b)(17).
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In addition, the Board determined that the Panels' consideration
of information classified as confidential pursuant to N.J.A.C.
10A:71-2.2(c) was appropriate, and the Board was in agreement with
both the Panels' utilization of the information and its
classification as confidential.
In rejecting Cole's contentions that his acknowledgement of
responsibility for his wrongdoing and his rehabilitative efforts
were disregarded, the Board noted that "program participation is
one factor of many . . . and is not the only indicator of
rehabilitation." Further, the Board found that Cole's "program
participation [did] not negate the fact that [Cole] still lack[ed]
insight into [his] criminal behavior, den[ied his] crime and
minimize[d his] conduct." The Board explained:
[A]lthough it appears that you have made some
progress, your criminal behavior is deeply
rooted as evidenced by your many institutional
infractions. This contradicts your assertion
of sufficient rehabilitation. Further, . . .
you have a serious and extensive substance
abuse problem and . . . you admit to being
"very very intoxicated" at the time of the
present offense. The Board notes that while
acknowledging the serious consequences of your
criminal activity and substance abuse is a
step towards rehabilitation, it represents
only an initial effort at rehabilitation.
Further, the Board finds . . . that you are
either unable or unwilling to sufficiently
address your addiction/extreme conduct with
substantive counseling. Additionally, your
continued accrual of institutional
infractions makes obtaining the counseling you
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need even more difficult. The Board further
finds that your admission of guilt may help
you to develop insight into the causes of your
criminal behavior, but does not equate to a
change in your behavior. The Board finds
that . . . [y]ou have a prolonged and distinct
history of violence which cannot be merely
qualified and excused. You have failed to
explore and address the root causes of your
violent and maladaptive conduct through
institutional programming or by some other
method which could yield progress in this key
area. Therefore, in assessing your case, the
Board concurs with the determination of the
Board panel that, based on the aggregate of
all relevant factors, there is a substantial
likelihood that you will commit another crime
if released on parole at this time.
. . . .
Finally, the Board finds that other than
your own interpretation of information that
is already part of the record[,] you have not
identified any material facts the Board panel
failed to consider or any written Board policy
or procedure to which the Board panel's
decision is contrary.
Cole filed this appeal, presenting the following contentions
for our consideration:
POINT ONE
THE PAROLE BOARD DETERMINATION SHOULD BE
OVERTURNED BECAUSE THE RECORD DOES NOT SUPPORT
A FINDING THAT IF RELEASED, THE APPELLANT
WOULD COMMIT ANOTHER CRIME.
POINT TWO
THE FET IMPOSED IS EXCESSIVE AND SHOULD BE
REDUCED.
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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)(E). We affirm substantially for the reasons
expressed in the Board's comprehensive written decision. We add
only the following brief comments.
Our review of the Board's decisions is limited. Hare v. N.J.
State Parole Bd., 368 N.J. Super. 175, 179 (App. Div.), certif.
denied, 180 N.J. 452 (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 and internal quotation marks omitted). As directed by
our Supreme Court, our task is to determine
(1)whether the agency's action violates
express or implied legislative policy, i.e.,
did the agency follow the law; (2) whether the
record contains substantial evidence to
support the findings on which the agency based
its action; and (3) whether in applying the
legislative policies to the facts, the agency
clearly erred in reaching a conclusion that
could not reasonably have been made on a
showing of the relevant factors.
[Trantino v. N.J. State Parole Bd., 166 N.J.
113, 172 (2001).]
Thus, where the Board has applied the correct legal standard,
our role is limited to determining whether the decision was
arbitrary, capricious or unreasonable. McGowan v. N.J. State
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Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002). We "must
determine whether the factual finding could reasonably have been
reached on sufficient credible evidence in the whole record."
Hare, supra, 368 N.J. Super. at 179. 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,
supra, 347 N.J. Super. at 563 (citation omitted). Accordingly,
"[t]he burden of showing that an action was arbitrary, unreasonable
or capricious rests upon the appellant." Ibid.
Under N.J.A.C. 10A:71-3.21(a)(1), upon a determination to
deny parole to a prison inmate, the standard future parole
eligibility date upon which the inmate shall be primarily eligible
for parole shall be twenty-seven additional months for "a prison
inmate serving a sentence for . . . kidnapping or serving any
minimum-maximum or specific sentence in excess of [fourteen]
years[.]" However, the Board may exceed the FET guidelines if the
standard term 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). In determining that
the presumptive FET terms are "clearly inappropriate, the three-
member panel shall consider the factors enumerated in N.J.A.C.
10A:71-3.11." Ibid.
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Here, we discern no basis to disturb the Board's decision.
The Board considered all relevant factors under N.J.A.C. 10A:71-
3.11, and its decision is supported by sufficient credible evidence
in the record and is entitled to our deference. Likewise, we are
satisfied that the imposition of a 168-month FET, although lengthy,
was neither arbitrary, capricious nor unreasonable. See McGowan
v. N.J. State Parole Bd., 347 N.J. Super. 544, 565 (App. Div.
2002) (affirming the imposition of a thirty-year FET based on
appellant's high likelihood of recidivism).
Affirmed.
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