CARLOS COLON 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NOT FOR PUBLICATION WITHOUT THE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-1468-15T3
CARLOS COLON,
Appellant,
v.
NEW JERSEY STATE
PAROLE BOARD,
Respondent.
___________________________
Submitted May 15, 2017 – Decided May 30, 2017
Before Judges Haas and Geiger.
On appeal from New Jersey State Parole Board.
Carlos Colon, appellant pro se.
Christopher S. Porrino, Attorney General,
attorney for respondent (Lisa A. Puglisi,
Assistant Attorney General, of counsel;
Gregory R. Bueno, Deputy Attorney General, on
the brief).
PER CURIAM
Appellant Carlos Colon appeals from the August 26, 2015 final
administrative decision of the New Jersey State Parole Board
("Board") denying him parole and imposing a ninety-month Future
Eligibility Term ("FET"). We affirm.
On May 10, 1985, appellant pled guilty to first-degree murder,
first-degree robbery, and fourth-degree unlawful possession of a
weapon. On June 14, 1985, the trial court merged the robbery and
weapons possession counts into the murder conviction and sentenced
appellant to life in prison, with a thirty-year period of parole
ineligibility.
In September 2014, appellant became eligible for parole
consideration for the first time. On September 12, 2014, a two-
member panel of the Board denied parole for several reasons. Among
other things, the panel noted appellant's extensive and repetitive
criminal record, his past failures to respond favorably to
community supervision, and the eleven disciplinary infractions he
committed while incarcerated. In addition, the panel found that
appellant exhibited insufficient insight into his criminal
behavior, and failed to express any remorse for the death of his
victim.
A three-member Board panel thereafter recommended a ninety-
month FET. The full Board ratified that decision, finding without
merit appellant's challenges to both the parole denial and the
length of the FET. This appeal followed.
On appeal, appellant contends that the Board's decision is
arbitrary and capricious and should be set aside. He also argues
that the ninety-month FET is excessive. We disagree.
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We must accord considerable deference to the Board and its
expertise in parole matters. Our standard of review of the Board's
decisions is limited, and "grounded in strong public policy
concerns and practical realities." Trantino v. N.J. State Parole
Bd., 166 N.J. 113, 200 (2001) ("Trantino V"). "The decision of a
parole board involves 'discretionary assessment[s] of a
multiplicity of imponderables[.]'" Id. at 201 (alteration in
original) (quoting Greenholtz v. Inmates of Neb. Penal & Corr.
Complex, 442 U.S. 1, 10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668,
677 (1979)).
"To a greater degree than is the case with other
administrative agencies, the Parole Board's decision-making
function involves individualized discretionary appraisals." Ibid.
(citing Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 358-59
(1973)). Consequently, our courts "may overturn the Parole Board's
decisions only if they are arbitrary and capricious." Ibid. We
will not disturb the Board's factual findings if they "could
reasonably have been reached on sufficient credible evidence in
the whole record." Id. at 172 (quoting Trantino v. N.J. State
Parole Bd., 154 N.J. 19, 24 (1998) ("Trantino IV") (quoting N.J.
State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.),
certif. denied, 111 N.J. 649 (1988))); see also McGowan v. N.J.
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State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002)
(applying that standard).
Having reviewed the record in light of these well-accepted
standards, including the materials in the confidential appendix,
we conclude that appellant's arguments are without sufficient
merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(D). There is abundant support in the record for a
conclusion that there is a "substantial likelihood that
[appellant] will commit a crime . . . if released on parole" at
this time. N.J.S.A. 30:4-123.53(a) (amended 1997). Therefore,
we discern no basis for disturbing the Board's decision to deny
parole.
We likewise are satisfied that the ninety-month FET imposed
by the Board, although lengthy, is neither arbitrary nor
capricious. An inmate serving a sentence for murder is ordinarily
assigned a twenty-seven month FET after a denial of parole.
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 of
satisfactory progress in reducing the likelihood of future
criminal behavior," the Board may impose an FET in excess of
administrative guidelines. N.J.A.C. 10A:71-3.21(d). As noted
above, the Board found that appellant has thus far been unable to
identify the causes of his criminal behavior, and has failed to
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develop adequate and appropriate insight in how to prevent himself
from engaging in future criminal conduct. He also continues to
commit infractions of prison rules while incarcerated. Under the
totality of these circumstances, the Board appropriately imposed
a ninety-month FET.
Finally, appellant argues that because Board members Lloyd
Henderson and James Jefferson served as the two-member panel that
considered his parole application in the first instance, they were
barred from being part of the three-member panel, with Board member
Julio Marenco, that established his ninety-month FET. This
contention lacks merit.
N.J.A.C. 10A:71-1.5(b) states that "[a] Board member shall
not participate in any Board or Board panel disposition of the
member's initial decision[.]" (emphasis added). Contrary to
appellant's contention, the three-member panel did not review the
two-member panel's initial decision to deny appellant's parole
request. Rather, the three-member panel's sole task was to set
the FET. All three Board members thereafter recused themselves
from participating in the full Board's final agency decision.
Thus, no Board member sat in direct review of his own "initial
decision" during the application process and, therefore, the Board
clearly complied with the requirements of N.J.A.C. 10A:71-1.5(b).
Affirmed.
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