The opinion
NOT FOR PUBLICATION WITHOUT THE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-3471-22
DERRICK ROUNDTREE,
Appellant,
v.
NEW JERSEY STATE
PAROLE BOARD,
Respondent.
______________________
Submitted October 23, 2024 – Decided November 8, 2024
Before Judges Mayer and DeAlmeida.
On appeal from the New Jersey State Parole Board.
Derrick Roundtree, appellant pro se.
Matthew Platkin, Attorney General, attorney for
respondent (Janet Greenberg Cohen, Assistant Attorney
General, of counsel; Dorothy M. Rodriguez, Deputy
Attorney General, on the brief).
PER CURIAM
Appellant Derrick Roundtree appeals from the January 25, 2023 final
agency decision of the New Jersey State Parole Board (Board) denying him
parole and establishing a 144-month future eligibility term (FET). We affirm.
I.
In 1996, Roundtree approached a man who was leaning into his car in East
Orange. He tapped the victim on the shoulder, asked how much the car was
worth and then said, "rise the fuck out." The victim observed Roundtree with
his hands inside his waistband with a black gun in his hand. The victim escaped
as Roundtree drove off in the victim's car.
A short time later, police discovered Roundtree in the car. He fled on
foot, but was apprehended hiding in a cabinet in a basement of a nearby home.
A witness saw Roundtree carrying a handgun as he fled. The handgun was later
found in the home where Roundtree had been hiding.
A jury convicted Roundtree of first-degree carjacking, N.J.S.A. 2C:15-2,
third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and second-
degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a).
The trial court sentenced Roundtree to an aggregate fifty-year term of
imprisonment, with an eighteen-year period of parole ineligibility.
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On February 2, 2022, Roundtree became eligible for parole for the second
time. At that point, he had served more than twenty-five years in prison.
On February 4, 2022, a two-member Board panel conducted a hearing on
Roundtree's parole application. The panel considered Roundtree's extensive
criminal history. As a juvenile, he was adjudicated delinquent eleven times for
offenses that if committed by an adult would be aggravated assault, simple
assault, terroristic threats, burglary, escape, robbery, receiving stolen property,
possession of a weapon for an unlawful purpose, and unlawful possession of a
weapon. Roundtree served two terms of juvenile incarceration. He also was
sentenced to three terms of probation and violated probation twice by
committing new offenses.
As an adult, Roundtree was convicted of assault, escape, robbery, theft,
and possession of a controlled dangerous substance prior to the carjacking. He
served two prior terms of incarceration, two prior periods on parole, and one
prior term of probation.
During his incarceration, Roundtree accumulated forty-six disciplinary
infractions between April 1997 and May 2021. Twenty-two of those infractions
were "asterisk" offenses, the most serious disciplinary charges in prison.
N.J.A.C. 10A:4-4.1(a). Since his last parole hearing in October 2013, Roundtree
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accumulated sixteen disciplinary infractions, of which ten were asterisk
offenses, including: attempted assault, two incidents of threatening another with
bodily harm, two incidents of fighting with another person, three incidents of
conduct which disrupts, and two incidents of refusing to submit to a search. At
the time of the hearing, Roundtree's most recent disciplinary adjudication was
for fighting with another person. The sanctions imposed for Roundtree's
disciplinary infractions included detention, administrative segregation, and the
loss of 3,075 days of commutation credits.
The panel questioned Roundtree about his present crimes, criminal
thinking and conduct related to those crimes, his lifestyle and social and personal
choices that led to his extensive and repetitive criminal record, his significant
and serious prison disciplinary history, and his participation while incarcerated
in programs that may have provided insight into his criminal thinking and
conduct. The panel's objective when posing those questions was to determine
whether Roundtree had "developed interpersonal skills, along with the ability to
use proper judgment and exercise control in stressful situations."
The panel determined Roundtree still struggled with his criminal thinking
and conduct, and minimized the severity of his actions. The panel found that
Roundtree still exhibited criminal conduct and non-compliant behavioral
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patterns, despite twenty-six years of incarceration, his older age, and his
completion of behavioral and therapeutic programs. Roundtree was, according
to the panel, unable to articulate the motivations and triggers that led him to
engage in criminal conduct. Instead, he provided excuses and false narratives,
and redirected blame for his actions.
The panel noted Roundtree's prison sentence would have expired before
the date of the hearing had he not lost approximately eight and a half years of
commutation credits as sanctions for his extensive disciplinary infractions. In
response, Roundtree stated he had "made a mistake" and was ready to go home,
but understood his infractions "make[] you look . . . bad in front of" the Board.
The panel questioned Roundtree with respect to his refusal to submit to
searches in 2019. He failed to provide meaningful insight into these infractions.
The disciplinary record indicates that when directed to submit to a search prior
to being transported to a medical appointment, Roundtree stated, "[t]hat's gay.
I'm not doing that." When questioned about that remark at the parole hearing,
Roundtree disputed the accuracy of the disciplinary record. He took a similar
approach when questioned about other disciplinary infractions, stating about the
disciplinary records, "[i]f that's what they say, man there's nothing I can change
to make them say it (sic)."
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The panel noted Roundtree was infraction free for a twenty-month period
between 2016 and 2017 and completed rehabilitative and cognitive programs in
prison, including the "Cage Your Rage" program. However, the panel noted
Roundtree committed disciplinary infractions after completing the programs.
The panel also discussed Roundtree's removal from a substance abuse
treatment program. When asked why he was removed from the program,
Roundtree provided explanations inconsistent with prison records. Roundtree
stated he was discharged from the program either for having bleach and wax in
his cell or for refusing an order to turn down his radio. Prison records, however,
established that Roundtree was discharged from the program for refusing to obey
a staff member's order to lower his voice while singing and instead raising his
voice even louder. The panel found this conduct highlighted Roundtree's
tendency to "antagonize others." Roundtree agreed with that observation and
stated he was "practicing" not reacting to others in that fashion. Roundtree
admitted if the panel denied his release on parole he might be charged with
another disciplinary infraction because he is "a human being."
The panel also considered institutional reports indicating a favorable
institutional adjustment, Roundtree's attempts to enroll in programs to which he
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was not admitted, and the restoration of commutation time during infraction-
free periods.
On February 4, 2022, the two-member panel denied Roundtree release on
parole and referred the matter to a three-member panel to establish an FET
outside of the administrative guidelines. The two-member panel based its
decision on: (1) the facts and circumstances of Roundtree's criminal offenses;
(2) his extensive and repetitive criminal record; (3) the increasingly serious
nature of his criminal offenses; (4) his incarceration on multiple offenses; (5)
his failure to refrain from criminal activity despite prior periods of probation
and incarceration; (6) his numerous, persistent, and serious institutional
infractions while incarcerated; (7) his commission of disciplinary infractions
after his last parole hearing; and (8) his insufficient problem solving, including
a lack of insight into his criminal behavior and minimization of his conduct. The
two-member panel also relied on confidential information, which included a
comprehensive mental health evaluation conducted specifically to determine
whether Roundtree was fit for release on parole, see N.J.A.C. 10A:71-2.2(c), as
well as a risk assessment evaluation indicating a high risk of recidivism.
After Roundtree submitted a letter of mitigation, the two-member panel
issued an amended decision. It noted: (1) on December 9, 1985, Roundtree was
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sentenced to probation for a term of two years; (2) on February 21, 1987,
Roundtree was sentenced to probation for a term of one year, which he violated;
(3) on June 26, 1987, Roundtree committed burglary while on probation, and
was sentenced to another one-year term of probation for that offense; and (4) on
March 25, 1988, Roundtree was sentenced to an indeterminate term for multiple
offenses committed while on probation. The panel's substantive decision did
not change.
On May 18, 2022, a three-member Board panel established a 144-month
FET. The panel explained its reasoning in a comprehensive and detailed eleven-
page decision. The panel's reasons for imposition of the FET included
Roundtree's: (1) lack of understanding of the underlying dynamics of his
personality defects that led him to engage in criminal thinking and conduct; (2)
inadequate progress in the rehabilitation process; (3) continued commission of
serious and extensive institutional infractions; (4) lack of understanding of the
motivations and triggers that result in his use of poor judgment and criminal
behavior; and (5) failure to take accountability for his poor judgment and
criminal conduct.
On January 25, 2023, the Board issued a final agency decision affirming
the denial of parole and the imposition of a 144-month FET. The Board adopted
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the findings of the two-member and three-member panels and found that there
was a substantial likelihood that Roundtree would commit another crime if
released on parole. The Board noted that Roundtree's criminal behavior was
"deeply rooted," as evidenced by his extensive criminal record and continuing
institutional infractions. The Board also found that, although Roundtree may
have made some progress, his efforts at rehabilitation were insufficient. The
Board noted Roundtree had a serious and extensive substance abuse history
beginning when he was seventeen and committed the carjacking while under the
influence of cocaine.
This appeal followed. Defendant raises the following argument
THE FINAL ADMINISTRATIVE DECISION OF THE
NEW JERSEY STATE PAROLE BOARD DENYING
PAROLE WAS NOT SUPPORTED BY SUFFICIENT,
CREDIBLE EVIDENCE IN THE RECORD AND
AMOUNTED TO A DENIAL OF APPELLANT'S
RIGHT TO DUE PROCESS[.] THEREFORE, THE
FET SHOULD BE VACATED AND A NEW PAROLE
HEARING SHOULD BE ORDERED.
II.
We accord considerable deference to the Board, and our review of its decision
is limited. Hare v. N.J. State Parole Bd., 368 N.J. Super. 175, 179 (App. Div. 2004).
We will overturn a Board decision only if it is arbitrary and capricious. Perry
v. N.J. State Parole Bd., 459 N.J. Super. 186, 193 (App. Div. 2019). An
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appellate court must not substitute its judgment for that of the agency, and an
agency's decision is accorded a strong presumption of reasonableness.
McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002).
The burden of showing that an action was arbitrary, unreasonable, or capricious
rests upon the appellant. Barone v. Dep't of Human Servs., 210 N.J. Super. 276,
285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).
For offenses committed before August 18, 1997, "the Parole Board may
deny parole release if it appears from a preponderance of the evidence that 'there
is a substantial likelihood that the inmate will commit a crime under the laws of
this State if released on parole at such time.'" Williams v. N.J. State Parole Bd.,
336 N.J. Super. 1, 7 (App. Div. 2000) (quoting L. 1979, c. 441, § 9). When
reaching a decision under this standard, the Board must consider the aggregate
of all pertinent factors, including those set forth in N.J.A.C. 10A:71 -3.11(b).
In addition, an inmate serving a sentence for carjacking is ordinarily
assigned a twenty-seven-month FET after a denial of parole. See N.J.A.C.
10A:71-3.21(a)(1). The Board may increase or decrease the standard FET "by
up to nine months when, in the opinion of the Board panel, the severity of the
crime for which the inmate was denied parole and the prior criminal record or
other characteristics of the inmate warrant such adjustment." N.J.A.C. 10A:71-
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3.21(c). However, a panel may establish an FET outside these guidelines if the
presumptive FET 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 making that determination, the panel shall consider
the same non-exhaustive factors enumerated in N.J.A.C. 10A:71-3.11(b) that are
considered when determining suitability for parole.
Significantly, the 144-month FET commences on Roundtree's parole
eligibility date and, because he committed his crimes prior to August 19, 1997 ,
his FET can be reduced by commutation, work, and minimum custody credits.
Based on the application of Roundtree's credits at the time the Board filed i ts
brief, Roundtree's parole eligibility date is August 29, 2030. This date will be
further reduced by the application of any work and minimum custody credits
Roundtree earns in the future, resulting in a possible parole eligibility date of
August 31, 2029. Thus, Roundtree's actual FET will be substantially less than
144 months.
After carefully considering the record in light of the applicable legal
principles, we affirm the Board's well-reasoned final agency decision, which is
supported by sufficient credible evidence. R. 2:11-3(e)(1)(D). We add only the
following brief comments.
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We disagree with Roundtree's argument that the Board's decision is based
primarily on his juvenile record. While the Board considered Roundtree's
extensive history of juvenile delinquency, the record demonstrates the Board
also relied on numerous other factors, including Roundtree's extensive adult
criminal history, lengthy and continuing prison disciplinary record, lack of
insight into the motivations and triggers leading to his criminal behavior, and a
risk assessment evaluation indicating a high risk for recidivism.
Nor do we see support in the record for Roundtree's argument that the
three-member panel and the Board failed adequately to explain the basis for their
imposition of a 144-month FET. The decisions of those entities provide detailed
explanations for their conclusions that an FET outside of the guidelines was
warranted.
To the extent we have not addressed other arguments raised by Roundtree,
we conclude they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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