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NOT FOR PUBLICATION WITHOUT THE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-4569-19
JAHBORN GARRETT,
Appellant,
v.
NEW JERSEY STATE
PAROLE BOARD,
Respondent.
_____________________
Submitted November 4, 2021 – Decided February 2, 2022
Before Judges Haas and Mitterhoff.
On appeal from the New Jersey State Parole Board.
Jahborn Garrett, appellant pro se.
Andrew J. Bruck, Acting Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Christopher C. Josephson, Deputy
Attorney General, on the brief).
PER CURIAM
Jahborn Garrett, pro se, appeals from a May 27, 2020 New Jersey State
Parole Board (Board) final agency decision denying him parole and imposing
an eighteen-month future eligibility term (FET).
On February 10, 2014, Garrett pleaded guilty to first-degree armed
robbery, N.J.S.A. 2C:15-1(b), and was subsequently sentenced to a six-year term
of incarceration. Although Garrett was convicted of first-degree robbery, his
offense was treated as a second-degree crime for sentencing purposes. He was
sentenced under the No Early Release Act, N.J.S.A. 2C:43-7.2, which included
a five-year term of mandatory parole supervision (MPS) upon his release from
custody. Upon his release, Garrett violated the terms of MPS and was returned
to custody on April 18, 2019.
On May 8, 2019, the Board revoked his parole and imposed a twelve-
month FET. Garrett's current maximum sentence is four years, four months, and
eleven days which is equivalent to the time remaining on his five-year MPS
term. After returning to custody, he committed three institutional disciplinary
infractions, including two "asterisk" infractions, which the Department of
Corrections considers to be the most serious. See N.J.A.C. 10A:4-4.1. The
asterisk infractions included fighting and disruptive conduct, while the third
infraction was for entering an unauthorized area.
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Garrett next became eligible for parole on April 17, 2020. On December
20, 2019, he received an initial hearing which occurred approximately eight
months into his current sentence. A hearing officer referred the case to a Parole
Board panel for a hearing.
On February 3, 2020, a two-member Board panel denied parole and
imposed an eighteen-month FET. The panel grounded its decision on: the facts
and circumstances of the offense; Garrett's repetitive and extensive prior offense
record; the increasingly serious nature of his criminal offenses; the fact that prior
probation failed to deter criminal behavior; the fact that his current opportunity
on parole was revoked for technical violations; his commission of institutional
disciplinary infractions, with the most recent occurring in December 2019;
insufficient problem resolution and a lack of insight into criminal behavior as
demonstrated by the panel interview and documentation in his case file; and the
results of a risk assessment evaluation which yielded a "moderate" risk of
recidivism. The Board did find mitigating factors which included: Garrett's
participation in institutional programs, an attempt made to enroll and participate
in programs to which he was not admitted, and institutional reports that reflected
favorable institutional adjustment.
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Garrett appealed the panel's decision to the full Board. On May 27, 2020,
the Board affirmed the panel's decision to deny parole and impose an eighteen-
month FET.
On appeal, Garrett argues:
POINT I
THE STATE PAROLE BOARD['S] DECISION TO
DENY APPELLANT['S] APPEAL WAS
ARBITRARY, CAPRICIOUS, UNREASONABLE
AND UNSUPPORTED . . . BY CREDIBLE
EVIDENCE IN THE RECORD.
POINT II
GARRETT WAS WRONGFULLY VIOLATED AND
GIVEN AN [EIGHTEEN]-MONTH FUTURE
ELIGIBILITY TERM FOR A DISCIPLINARY
INFACTION THAT HE ALLEDGE[S] HE WAS A
VICTIM [IN].
POINT III
THE BOARD PANEL FAILED TO PROPERLY
CONSIDER ALL MITIGATING FACTORS.
POINT IV
THE BOARD PANEL FAILED TO CONSIDER
PLACEMENT INTO A PROPER TREATMENT
FACILITY TO ADDRESS SPECIFIC NEEDS.
Our review of a parole board's decision is limited. Hare v. N.J. State
Parole Bd., 368 N.J. Super. 175, 179 (App. Div. 2004). We "must determine
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whether the factual finding could reasonably have been reached on sufficient
credible evidence in the whole record." Ibid. (citing Trantino v. N.J. State Parole
Bd., 166 N.J. 113, 172, modified, 167 N.J. 619 (2001)). We will overturn a
parole board's 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 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 appellant bears
"[t]he burden of showing that an action was arbitrary, unreasonable or
capricious." Ibid.
The Board must consider the factors enumerated 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, 347 N.J. Super. at 561.
We have considered Garrett's contentions 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 by the Board in its cogent
decision. We add the following remarks.
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The Board considered all relevant material factors in Garrett's case before
denying parole. The Board based its finding that Garrett exhibited insufficient
problem resolution, and specifically that he lacks insight into his criminal
behavior, based on questions posed to him at his hearing. The Board considered
Garrett's risk assessment evaluation and score of twenty-two which indicated a
moderate risk of recidivism. The Board weighted the fact that he had recently
gotten into a fight, which resulted in institutional disciplinary measures. The
Board also considered the nature of his underlying criminal offense, his prior
criminal record, and failure of prior opportunities on parole.
The Board considered mitigating circumstances as well, including
Garrett's participation in institutional programs, the reports that reflected his
favorable institutional adjustment, and his attempts to enroll and participate in
programs to which he was not admitted. The Board even amended its initial
report to add Garrett's participation in institutional programs as a mitigating
factor. The Board's action was consistent with the applicable law. We reject
Garrett's contention that the Board's decision was arbitrary or capricious and
find there is substantial credible evidence in the record to support the denial of
parole.
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Likewise, we are satisfied that the eighteen-month FET imposed by the
Board is supported by the record. The presumptive FET for an inmate who is
serving a sentence for armed robbery and is denied parole is twenty-three
months under N.J.A.C. 10A:71-3.21(a)(2). The standard FET "may be increased
or decreased 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:71-3.21(c). Here, the decrease in the FET taken together with the
rest of Board panel's analysis, reflects the panel's careful consideration in this
manner, and is well-supported by the record.
Affirmed.
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