JOHN KYLES 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NOT FOR PUBLICATION WITHOUT THE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-5370-16T1
JOHN KYLES,
Appellant,
v.
NEW JERSEY STATE PAROLE
BOARD,
Respondent.
________________________________
Submitted July 23, 2018 – Decided October 29, 2018
Before Judges Whipple and Suter.
On appeal from the New Jersey State Parole Board.
John Kyles, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa Dutton Schaffer, Assistant
Attorney General, of counsel; Christopher C.
Josephson, Deputy Attorney General, on the brief).
PER CURIAM
John Kyles (appellant) appeals the April 19, 2017 final agency decision
of the New Jersey State Parole Board (Board) that denied his parole and set an
eighty-four month future parole eligibility term (FET). We affirm.
We recount only such facts as are necessary for our decision. In May
1995, appellant stabbed his nephew in the head, was arrested and indicted.
Appellant was convicted by a jury of third-degree aggravated assault with a
deadly weapon, N.J.S.A. 2C:12-1(b)(2); second-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(1); first-degree attempted murder, N.J.S.A. 2C:5-1, 2C:11-
3; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
4(d); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and
fourth-degree certain persons not to have weapons, N.J.S.A. 2C:39-7. He was
sentenced to an extended term of fifty-years of imprisonment, subject to
seventeen years of parole ineligibility. Appellant became eligible for parole for
the third time in May 2016.
A two-member panel of the Board denied appellant's request for parole on
April 8, 2016, finding "a substantial likelihood exists that [he] would commit a
new crime if released on parole at this time." The panel considered the
underlying offense (attempted murder) was serious, appellant had an extensive
juvenile and criminal record consisting of thirty-one adult convictions, some of
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which involved assault and theft, he had been paroled five times in the past and
had committed two parole violations. Appellant incurred thirty-two infractions
while incarcerated, with the most recent three occurring within the period under
review. One of these was an "asterisk" or serious offense for fighting. He had
fourteen other asterisk offenses in his record.
The two-member panel considered that appellant lacked insufficient
problem resolution, lacked insight into his criminal behavior, minimized his
conduct, and failed to sufficiently address his substance abuse problem. It also
considered an objective risk assessment evaluation that indicated a high risk of
recidivism, and that appellant's mental health issues "further complicate
matters." Mitigating factors were considered including his participation in
institutional programs. The two-member panel referred the case to a three-
member panel for review and to establish an FET.
The three-member panel of the Board denied appellant's request for parole
on July 6, 2016, also finding "a substantial likelihood exists that [appellant]
would commit a new crime if released on parole at this time." In its seven-page
written decision denying parole, the panel explained that appellant lacked
insight into his criminal behavior. He continued to blame his victim who, he
said, "came at [him] with an attitude." Appellant minimized the crime as "just
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an altercation," explaining he stabbed the victim in the head because he was
drinking. Appellant explained he had not remained infraction free while in
prison because of the "wild environment in here . . . people come onto you
aggressive and you gotta (sic) defend yourself." He told the three-member panel
he had changed, but he explained his recent infraction for fighting by saying
"'you gotta (sic) face the man every day' and 'there's a lot of gang activity here.'"
The three-member panel found "the answers [appellant] provided to them, in
addition to [his] institutional conduct since [his] last parole hearing were not
representative of an individual who possesses insight into their criminality and
anti-social thinking." The panel imposed a ninety-six month FET, but later
modified it to eighty-four months, finding that appellant did not understand the
root causes of his criminal actions, did not acknowledge the severity of his anti -
social decision making and committed institutional infractions. Appellant
appealed the denial and FET to the full Board.
The Board concurred with the two-and three-member panels. On April
19, 2017, it denied parole, finding "a preponderance of the evidence indicates
that there is a substantial likelihood that [appellant] would commit a crime if
released on parole at this time." The Board agreed an FET under N.J.A.C.
10A:71-3.21 (a), (b) and (c) was "clearly inappropriate due to [appellant's] lack
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of satisfactory progress in reducing the likelihood of future criminal behavior "
and affirmed the eighty-four month FET. See N.J.A.C. 10A:71-3.21(d). The
Board found appellant's entire record had been reviewed comprehensively,
including his "documented mental health issues, alcohol abuse history and
circumstances of [his] institutional infractions." The Board considered his past
opportunities for release. The Board agreed appellant lacked satisfactory
progress in reducing his criminal behavior, he did not understand the reasons for
his criminal action and the eighty-four month FET was appropriate.
Appellant appeals arguing:
THE RECORD EVIDENCE IN THIS CASE,
INCLUDING KYLE'S DOCUMENTED HISTORY OF
MENTAL HEALTH ISSUES AND UTTER LACK OF
A HOLISTIC REENTRY PLAN, REQUIRES THIS
COURT FULL BOARD TO RESCIND THE
[EIGHTY-FOUR] MONTH FET IN ITS ENTIRETY,
OR ALTERNATIVELY, MODIFY THE FET TO A
MORE REASONABLE TERM.
The scope of our review is very limited. In re Stallworth, 208 N.J. 182,
194 (2011) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)).
"[T]he Parole Board is the 'agency charged with the responsibility of deciding
whether an inmate satisfies the criteria for parole release under the Parole Act
of 1979.'" Acoli v. N.J. State Parole Bd., 224 N.J. 213, 222 (2016) (citations
omitted). A Board's decision involves "discretionary assessment[s] of a
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multiplicity of imponderables . . . ." Ibid. (alteration in original) (citing
Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 142 U.S. 1, 10 (1979)).
Unless the Board's decision is found to be "arbitrary, capricious, or
unreasonable, or . . . not supported by substantial credible evidence in the record
as a whole," it shall not be disturbed. In re Stallworth, 2018 N.J. at 194; see
Acoli, 224 N.J. at 222-23. "The burden of showing that an [agency's] action was
arbitrary, unreasonable or capricious rests upon the appellant." McGowan v.
N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002).
Here, the Board's final agency decision was not arbitrary, capricious or
unreasonable. The Board comprehensively considered appellant's entire record,
including the seriousness of his offenses, and his numerous prior convictions as
an adult, which included assaultive behavior and theft-related crimes. The
Board considered each of appellant's prior opportunities for parole or release,
and noted "each opportunity [was] followed by additional alcohol use and
additional criminal behavior." His thirty-two disciplinary infractions during his
incarceration included asterisk or serious infractions, and three of them were
committed after his last parole hearing. It also considered appellant's answers
to questions posed to him by the panel at the hearing as well as mitigating
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factors. We agree the Board's decision was substantially supported by this
record and it considered all relevant factors.
We also agree the Board was not arbitrary, capricious or unreasonable in
ordering an eighty-four month FET. The record showed ample support for the
Board's conclusion that the standard FET was "clearly inappropriate due to
[appellant's] lack of satisfactory progress in reducing the likelihood of future
criminal behavior" and that a longer FET of eighty-four months was appropriate.
Appellant argues the Board placed significant weight on his three recent
disciplinary infractions, but failed to consider the "compelling circumstances
mitigat[ing] his conduct" for each of these infractions when it determined the
FET. He contends the Board did not consider his mental health or alcohol abuse
history. However, the record supports neither argument. "[B]oth [appellant]
and the Board panel discussed in detail all the circumstances surrounding the
'fighting' infracting that [appellant] incurred approximately a year prior to the
hearing," including appellant's arguments about mitigation. Our review of the
record also shows the Board considered and addressed his mental health and
alcohol abuse history.
Affirmed.
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