JOSE SERRANO 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NOT FOR PUBLICATION WITHOUT THE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-0191-18T1

JOSE SERRANO,

Appellant,

v.

NEW JERSEY STATE

PAROLE BOARD,

Respondent.

______________________

Submitted September 23, 2019 – Decided January 14, 2020

Before Judges Vernoia and Susswein.

On appeal from the New Jersey State Parole Board.

Jose Serrano, appellant pro se.

Gurbir S. Grewal, Attorney General, attorney for

respondent (Donna Arons, Assistant Attorney General,

of counsel; Christopher C. Josephson, Deputy Attorney

General, on the brief).

PER CURIAM

Petitioner, Jose Serrano, is a State Prison inmate serving a life sentence

imposed on his 1983 convictions for murder and aggravated assault. He appeals

from a final agency decision of the New Jersey State Parole Board denying his

application for parole and imposing a ninety-six-month future eligibility term

(FET).1 We have considered petitioner's arguments in light of the record and

applicable legal standards and affirm the Parole Board’s final agency decision.

I.

Petitioner has been incarcerated since 1982. He became eligible for parole

on January 29, 2018, after serving the mandatory term of parole ineligibility

imposed at sentencing. His application for parole was first heard by a two-

member Board panel. That panel denied parole and referred the matter to a

three-member panel to fix an FET outside of the administrative guidelines,

which provide for a standard FET of twenty-seven months. See N.J.A.C.

10A:71-3.21(a)(1). On April 11, 2018, the three-member panel established a

ninety-six-month FET. The panel issued an eight-page opinion explaining the

reasons for its decision. Petitioner pursued an administrative appeal to the full

Board. After considering the entire record, the full Board agreed that there is a

substantial likelihood petitioner would commit another crime if released on

1

Petitioner’s new projected parole eligibility date is in June 2022.

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parole. Upon that finding, the full Board affirmed the parole denial and the

ninety-six-month FET.

Petitioner, appearing before us pro se, presents the following contentions

for our consideration:

POINT I

THE DECISION OF THE PAROLE BOARD WAS

ARBITRARY AND CAPRICIOUS, AND NOT

SUPPORTED BY CREDIBLE EVIDENCE.

POINT II

THE PAROLE BOARD DECISION WAS

ARBITRARY AND IRRATIONAL, THE BOARD

ALSO VIOLATED N.J.S.A. [] 30:4-123.56(A).

A. PARTICULAR REASONS FOR

ESTABLISHING A FUTURE PAROLE

ELIGIBILITY DATE OUTSIDE OF THE

ADMINISTRATIVE GUIDELINES:

FACTS AND CIRCUMSTANCES OF

OFFENSE.

B. THE PAROLE BOARD FOUND

INSUFFICIENT PROBLEM

RESOLUTION, AND A LACK OF

INSIGHT INTO CRIMINAL BEHAVIOR

AS A REASON TO QUESTION

APPELLANT'S ABILITY TO DEAL

WITH HIS PROBLEM.

II.

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The standard of review in this appeal is highly deferential to the Parole

Board’s decision-making authority. Our review is limited to evaluating whether

the Board acted arbitrarily or abused its discretion. See In re Vay, 272 N.J.

Super. 199, 205–06 (App. Div. 1993). Parole decisions are "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)).

Those decisions, moreover, are inherently subjective, and ultimately must be

made by those with experience and expertise in this field. See Puchalski v. N.J.

State Parole Bd., 104 N.J. Super. 294, 300 (App. Div. 1969) ("Such predictions

as to future behavior are necessarily quite subjective and leave the Board with a

broad discretion in the grant or denial of parole." (citing Mastriani v. N.J. Parole

Bd., 95 N.J. Super. 351, 355–57 (App. Div. 1967), overruled on other grounds

by Thompson v. N.J. State Parole Bd., 210 N.J. Super. 107, 122 (App. Div.

1986))).

Petitioner committed his crimes in 1982. The statute governing parole in

effect at the time of his offense establishes a presumption of parole that is

overcome only if the Board finds "by a preponderance of the evidence . . . 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." N.J.S.A. 30:4-123.53(a) (1982).

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In making its determination, the Board must consider all pertinent factors,

including those set forth in N.J.A.C. 10A:71-3.11(b).

III.

The record shows that the Board considered all relevant aggravating and

mitigating circumstances. With respect to mitigating factors, the board found

that: (1) petitioner has a minimal offense record; (2) petitioner completed

activities under community supervision without any violations; (3) petitioner

has been infraction-free since his last parole hearing; (4) he participated in

programs specific to his behavior; (5) he participated in institutional programs;

(6) his institutional reports reflect favorable institutional adjustment; (7) he

achieved and maintained minimum custody status; and (8) his commutation time

was restored.

The Board found the following aggravating factors: (1) the facts and

circumstances of the offense; (2) the nature of the criminal record, which

became increasingly more serious; 2 (3) petitioner was committed to

incarceration for multiple offenses; (4) he committed new offenses on probation,

but his probationary status was not revoked; (5) prior opportunities for probation

2

Petitioner has no prior adult criminal record, but he had a juvenile offense

record prior to the murder.

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failed to deter his criminal behavior; (6) he committed numerous and persistent

institutional disciplinary infractions serious in nature and resulting in loss of

commutation time and confinement in administrative segregation; 3 and (7)

insufficient problem resolution.

The Board found the last aggravating factor especially significant. The

Board concluded that petitioner lacks insight into his violent criminal behavior,

as demonstrated by a pre-parole report and the results of an objective risk

assessment evaluation. The Board found with regard to his insufficient problem

resolution that although petitioner was involved in programs while serving his

sentence, he gained little insight from those rehabilitative efforts. The Board

explained, "[w]hile [petitioner] claims remorse, he demonstrates little

understanding of his behavior, only stating how he sees now that it was wrong.

He gives no indication that he would act any differently if he was rejected in the

future and he does not appear to have fully addressed his anger."

The three-member panel was especially thorough in documenting the

bases for concluding that petitioner had not sufficiently resolved the problems

that gave rise to his violence. The panel found that petitioner:

3

The Board recognized that petitioner’s last institutional infraction occurred in

March 1997.

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[p]resent[ed] as not understanding the specific triggers

and motivations to [his] violent reactionary thinking.

At the current hearing, [petitioner] offered only general

and un-insightful [sic] comments regarding the murder

of the victim including that [he] acted in “fear” and that

[he was] not “thinking clearly.” The Board panel

[found] that [his] presentation was representative of

someone who has yet to understand the root causes as

to why they chose to use extreme violence to resolve

conflict.

The panel further found:

[petitioner] present[ed] as not having appropriate

awareness as to what motivated [his] negative behavior.

[Petitioner] offered to the Board panel that [he was]

emotional[ly] troubled due to [his] girlfriend ending

[their] relationship. Further, [he] claimed that all of

[his] actions leading up to the murder had good

intentions and that though misguided, were an attempt

on [his] part to win her back. [Petitioner’s] actions

involved threats to her, her family and suicidal ideation.

The series of choices, decisions and actions on [his]

part were over an extended period of time and were

steadfast. Lost on [him were] the specifics as to why

the emotional and stressful factors led [him] to behave

in an extreme anti-social manner. [Petitioner has] yet

to conduct an introspection into the violent personality

defect[] that impelled [him] to commit murder.

IV.

Petitioner contends that the Parole Board gave too much weight to the

aggravating factors and not enough weight to the mitigating factors. The

detailed reasons given by the Board in support of its decision show that it

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considered all pertinent facts and circumstances, both aggravating and

mitigating, and did not abuse its discretion in concluding that the aggravating

factors qualitatively outweighed the mitigating factors. As we have already

noted, parole decisions are inherently subjective, and we are required to respect

the Parole Board's experience and expertise. Puchalski, 104 N.J. Super. at 300.

Petitioner also contends that his prior criminal history and institutional

infractions are too remote in time to be relevant. We disagree. The regulation

governing the exercise of the Parole Board’s discretion permits the Board to

consider these circumstances. N.J.A.C. 10A:71-3.11(b) (listing twenty-three

factors the Board may consider, including the "[f]acts and circumstances of the

offense," the "[a]ggravating and mitigating factors surrounding the offense,"

"[p]articipation in institutional programs," and "[s]tatements by the inmate

reflecting on the likelihood that he or she will commit another crime"). We do

not believe that the Board placed inappropriate emphasis on these

circumstances. Nor do we believe the Board viewed them out of context or

without due regard to the elapsed time. The Board recognized that petitioner

had no adult criminal history. It also recognized that he had gone more than

twenty years without an institutional infraction, finding as a mitigating factor

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that he has made a favorable institutional adjustment and has had his lost

commutation time restored.

We also reject petitioner’s contention that the Board inappropriately

considered the severity of his crimes as an independent factor in denying parole

and establishing a ninety-six-month FET. Contrary to petitioner’s

characterization, the Board properly considered the severity of the violent

crimes in the context of his lack of insight into the root causes of his violent

anti-social behavior. We note in this regard that we previously have affirmed

denial of parole in cases where the Board cited insufficient problem resolution

and lack of insight as an aggravating factor. See, e.g., McGowan v. New Jersey

State Parole Bd., 347 N.J. Super. 544, 558–59, 565 (App. Div. 2002) (affirming

the Board's denial after the Board found "appellant's lack of insight into what

caused him to commit this offense was 'extremely disconcerting'"). We do not

believe that the Board in this instance improperly considered the severity of

petitioner's violent crimes. Nor did the Board give inappropriate weight to the

insufficient problem resolution circumstance in evaluating and balancing the

pertinent aggravating and mitigating factors.

The same circumstances that led the Board to deny parole also support its

decision to impose a ninety-six-month FET. Pursuant to N.J.A.C. 10A:71-

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3.21(a)(1), the standard FET would have been twenty-seven months. The

regulations provide, however, that the Board may impose an FET outside the

standard guidelines if it determines that the standard 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 this

instance, the Board adequately explained the basis for its decision to go outside

the standard FET guidelines and impose a ninety-six-month FET, relying

heavily on petitioner’s continuing failure to gain an understanding of the

“specific triggers and motivations to [his] violent reactionary thinking.” The

full Board did not abuse its broad discretion when it embraced the assessment

of the three-member panel that petitioner requires this additional time in prison

to conduct an introspection into the violent personality issues that impelled him

to commit murder.

To the extent we have not already addressed them, any other arguments

raised by petitioner do not have sufficient merit to warrant discussion in this

written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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