PAUL WILLIAMS VS. NEW JERSEY STATE PAROLE BOARDÂ (NEW JERSEY STATE PAROLE BOARD)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1410-15T2
PAUL WILLIAMS,
Appellant,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondents.
___________________________________
Submitted June 6, 2017 – Decided July 21, 2017
Before Judges Reisner and Sumners.
On appeal from the New Jersey State Parole
Board.
Paul Williams, 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 Paul Williams is serving a life sentence after
being found guilty by a jury of first-degree murder in 1972,
arising from his participation in the robbery of a tavern, during
the course of which an accomplice fatally shot the tavern owner.
He appeals from the final agency decision of the New Jersey State
Parole Board (Board) denying him parole and imposing a thirty-six
month future eligibility term (FET). We affirm.
On June 25, 2015, appellant became eligible for parole for
the ninth time. A hearing officer referred his case to a two-
member Board panel, which denied parole and set a thirty-six month
FET. The panel, relying upon an updated confidential psychological
assessment, determined there was a substantial likelihood that
appellant would commit a new crime if released. Among other
things, the panel cited: (1) serious nature of offense; (2) prior
criminal record; (3) prior probation revoked for commission of new
offense; (4) prior incarceration did not deter criminal behavior;
(5) demonstrated lack of insight into criminal behavior; (6) risk
assessment score of thirty, indicating a medium risk of recidivism.
The panel found that those considerations outweighed the
mitigating factors of appellant's participation in various
institutional programs specific to behavior, being infraction-free
since his last panel appearance, favorable institutional
adjustment, and achievement of medium custody status.
The Board issued a final agency decision on September 23,
2015, affirming the panel's denial of parole and establishment of
the thirty-six month FET. In doing so, the Board rejected
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appellant's contention that the denial of his parole eight previous
times was unreasonable and not supported by the record. It
reasoned
that the Parole Act of 1979 was amended in
1997 and pursuant to those amendments; the
Board is no longer restricted to considering
only new information, at each time of parole
consideration. Most of the information in
your case remains the same, for example, your
prior criminal history and adjustment on
community supervision. However, other
information pertaining to your institutional
adjustment has changed to reflect your recent
institutional developments, such as your
infraction free status since your last panel
review and your program participation. In
addition, pursuant to N.J.A.C. 10A:71-3.11,
the Board panel is required to consider and
base its decision on the aggregate of factors.
Thus, the Board concurred with the panel's determination that "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."
On appeal, appellant argues that, based upon the record, the
Board acted unreasonably and arbitrarily in denying his parole and
imposing a FET. He also contends that the Board violated the Ex
Post Facto Clause of the United States Constitution by reviewing
his entire parole file pursuant to N.J.S.A. 30:4-123.56(c) (1979),
as amended by L. 1997, c. 213, § 2, instead of limiting its review
to new information, which was the standard prior to the 1997
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amendment. Further, appellant argues that the Board improperly
considered "on-the-spot" minor institutional infractions requiring
minor sanctions. See N.J.A.C. 10A:4-7.3(a); N.J.A.C. 10A:4-
7.5(a).
Under our standard of review, we must accord considerable
deference to the Board and its expertise in parole matters. Our
standard of review is whether the Board's decision was arbitrary
and capricious. Acoli v. N.J. State Parole Bd., 224 N.J. 213,
222-23 (2016). Parole Board decisions are "highly 'individualized
discretionary appraisals.'" Trantino v. N.J. State Parole Bd.,
166 N.J. 113, 173 (2001) (quoting Beckworth v. N.J. State Parole
Bd., 62 N.J. 348, 359 (1973)). We will not disturb the Board's
fact-findings if they "could reasonably have been reached on
sufficient credible evidence in the whole record." J.I. v. N.J.
State Parole Bd., 441 N.J. Super. 564, 583 (App. Div.) (quoting
Hare v. N.J. State Parole Bd., 368 N.J. Super. 175, 179 (App.
Div.), certif. denied, 180 N.J. 452 (2004)), certif. granted, 223
N.J. 555 (2015). The burden is on the challenging party to
demonstrate that the Board's actions were arbitrary, capricious
or unreasonable. Bowden v. Bayside State Prison, 268 N.J. Super.
301, 304 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994).
A Board decision to grant or deny parole for crimes committed
before August 1997, turns on whether there is a "substantial
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likelihood" the inmate will commit another crime if released.
N.J.S.A. 30:4-123.53(a) (1979), amended by L. 1997, c. 213, § 1;
N.J.S.A. 30:4-123.56(c) (1979), amended by L. 1997, c. 213, § 2;
Williams v. N.J. State Parole Bd., 336 N.J. Super. 1, 7 (App.
Div.), certif. denied, 165 N.J. 523 (2000); N.J.A.C. 10A:71-
3.10(a). The Board must consider the enumerated factors in
N.J.A.C. 10A:71-3.11(b)(1)-(23), in making its decision. The
Board, however, is not required to consider each and every factor;
rather, it should consider those applicable to each case. McGowan
v. N.J. State Parole Bd., 347 N.J. Super. 544, 561 (App. Div.
2002).
Guided by these standards and considering the record,
including the materials in the confidential appendix, we discern
no basis to disturb the Board's decision. The Board considered
the relevant factors in N.J.A.C. 10A:71-3.11, and adopted the
determinations made by the two-member panel which found that there
was a substantial likelihood that appellant would commit a new
crime if released. We are mindful that appellant has been in
prison for over forty-five years. The Board's decision, however,
is supported by sufficient credible evidence in the record and is
entitled to our deference.
We are also satisfied that the thirty-six month FET imposed
by the Board is consistent with the Board's guidelines. In
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accordance with N.J.A.C. 10A:71-3.21(d), when an inmate serving a
life sentence is denied parole, the Board may increase the
presumptive twenty-seven month FET "due to the inmate's lack of
satisfactory progress in reducing the likelihood of future
criminal behavior[.]" We find nothing arbitrary or capricious
about the thirty-six month FET because it was supported by
sufficient credible evidence in the record.
Turning to appellant's ex post facto argument, our court and
the United States District Court have previously addressed and
rejected this argument. See, e.g., Trantino v. N.J. State Parole
Bd., 331 N.J. Super. 577, 610-11 (App. Div. 2000) (holding the use
of the 1997 amendment to the Parole Act and its removal of the
"new information" limitation did not violate the Ex Post Facto
Clause), aff'd in part, modified in part, and remanded, 166 N.J.
113 (2001); Royster v. Fauver, 775 F.2d 527, 533-35 (3d Cir. 1985)
(holding that the 1979 Parole Act did not violate the prohibition
against Ex Post Facto laws when applied to an offender sentenced
under the Parole Act of 1948).
Finally, there is no merit to the argument that the Board
considered "on-the-spot" infractions in denying parole. In fact,
the Board noted as a mitigating factor that appellant has been
infraction-free since his last parole hearing.
Affirmed.
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