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NOT FOR PUBLICATION WITHOUT THE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.

5 A-2010-14T4

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).

6 A-2010-14T4

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

9 A-2010-14T4

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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