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NOT FOR PUBLICATION WITHOUT THE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-3406-20
CHARLES MILLER,
Appellant,
v.
NEW JERSEY STATE
PAROLE BOARD,
Respondent.
Submitted June 2, 2022 – Decided June 28, 2022
Before Judges Mawla and Alvarez.
On appeal from the New Jersey State Parole Board.
Charles Miller, appellant pro se.
Matthew J. Platkin, Acting Attorney General, attorney
for respondent (Donna Arons, Assistant Attorney
General, of counsel; Suzanne Davies, Deputy Attorney
General, on the brief).
PER CURIAM
Charles Miller, an inmate sentenced to life imprisonment for the 1976
murder of a police officer, appeals his sixth and most recent denial of parole by
the New Jersey State Parole Board. On May 26, 2021, the Board affirmed the
Board panel's earlier decision denying parole and imposing a thirty-six-month
future eligibility term (FET). For the reasons stated by the Board, we affirm.
In its final agency decision, the Board thoroughly detailed and adopted
the panel's analysis of the reasons the FET was imposed. The panel reviewed
the entire record, including: the facts and circumstances of Miller's underlying
offenses; his extensive prior criminal history and repetitive offense record; his
commission of increasingly serious offenses; failed opportunities on probation
and parole; incarcerations that failed to deter Miller from criminality; and over
fifty institutional infractions, the last occurring in 2003. The panel also noted
his lack of an adequate parole plan, "[i]nsufficient problem[] resolution[,]" lack
of insight into criminality, and conduct minimization. The panel also found that
he continued to display "a cavalier attitude towards the parole and criminal
justice process [insufficient] to show an understanding or at minimum
appreciation of society's rules and laws." In all, the panel concluded that the
negative factors established a high risk of recidivism, while acknowledging that
Miller had been infraction-free since the last parole review, participated in many
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behavioral programs, supplied institutional reports reflecting favorable
institutional adjustments, maintained minimum custody status, and regained lost
commutation time.
The Board decision rejected Miller's objection that the Board was
prohibited from considering his entire prior record. The Board explained that
the Parole Act of 1979 was amended in 1997 to allow for such consideration. In
addition, "the Supreme Court of New Jersey ruled in the Trantino[1] case that the
1997 amendment eliminating consideration of 'new information' with respect to
subsequent parole application[s] after denial of parole was a procedural
modification that did not constitute a substantive change . . . ."
Further, Miller chose not to participate in the parole hearing, thus the
panel could not "engage [him] in dialogue[.]" After reviewing the panel
decision, and the relevant statutes and regulations, the Board concluded that by
a preponderance of the credible evidence, there was "a substantial likelihood
that [Miller] would commit a crime if released on parole at this time." The
Board affirmed imposition of a thirty-six-month FET. This appeal followed.
Now on appeal, Miller raises the following points of error:
1
Trantino v. N.J. State Parole Bd., 166 N.J. 113 (2001).
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POINT I
APPELLANT WAS ENTITLED TO RELEASE. HIS
CONTINUED INCARCERATION PREDICATED ON
RETROACTIVE APPLICATION OF STATUTORY
LAW NOT ENACTED AT THE TIME OF HIS
INITIAL ELIGIBILITY FOR PAROLE RELEASE
VIOLATES CONSTITUTIONAL EX POST FACTO
PROHIBITIONS.
A. The Federal Courts.
(1) Supreme Court, Garner v. Jones.[2]
(2) Third Circuit, Mickens-Thomas v.
Vaughn.[3]
B. Our State Courts.
POINT II
THE ACTIONS OF RESPONDENT IN THIS ACTION
CONSTITUTE A PREMEDITATED COURSE OF
ACTION TO VIOLATE CONSTITUTIONAL DUE
PROCESS BY REPETITIVE IMPOSITION OF
FUTURE ELIGIBILITY TERMS WHICH WILL
EXPIRE PRIOR TO A DETERMINATION BY THIS
COURT, CONTRARY TO THIS COURT'S RULING
IN STOUT.[4]
2
Garner v. Jones, 529 U.S. 244 (2000).
3
Mickens-Thomas v. Vaughn, 321 F.3d 374 (3d Cir. 2003).
4
Stout v. N.J. State Parole Bd., Nos. A-0034-14, A-3623-14 (App. Div. Nov.
15, 2016).
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POINT III
RESPONDENT IS ATTEMPTING TO RE-
SENTENCE APPELLANT TO LIFE
IMPRISONMENT ABSENT ELIGIBILITY FOR
PAROLE IN VIOLATION OF HIS
CONSTITUTIONAL RIGHT TO DUE PROCESS, AS
IN PRIOR MATTERS.
POINT IV
CERTIFICATION OF THE GRANTING OF PAROLE
RELEASE FOR PRISONERS BY THE FULL
PAROLE BOARD WHO ARE CONVICTED OF
MURDER IS A MINISTERIAL ACT WHICH CAN
BE ACCOMPLISHED IN ABSENTIA. FOR
PRISONERS CONVICTED PRIOR TO THIS
ENACTMENT IT CONSTITUTES AN EX POST
FACTO VIOLATION.
POINT V
THE FINAL AGENCY DECISION WAS
ERRONEOUS. THE RULING BY OUR SUPREME
COURT IN TRANTINO DID NOT AFFIRM THIS
COURT'S ON EX POST FACTO. THERE EXISTED
NO BURDEN ON APPELLANT TO BE
INTERROGATED, OR TO DEMONSTRATE WHY
HE WAS ENTITLED TO RELEASE.
A. Supreme Court Ruling In Trantino.
B. Appellant's Failure to Engage In Dialogue With
the Board Panel.
C. Non-Articulation of Changes Made To Ensure
An Absence of Criminal Activity and That
Insight Gained.
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POINT VI
THE COURT MUST EXERCISE ORIGINAL
JURISDICTION PURSUANT TO R[ULE] 2:10-5 AS
OUR SUPREME COURT DID IN TRANTINO AND
THIS COURT DID IN KOSMIN.[5] (NOT RAISED
BELOW).
"Appellate review of parole determinations 'focuses upon whether the
factual findings made by the Parole Board could reasonably have been reached
on sufficient credible evidence in the record.'" Perry v. N.J. State Parole Bd.,
459 N.J. Super. 186, 193 (App. Div. 2019) (quoting Trantino, 166 N.J. at 199).
The Board makes even more "individualized discretionary appraisals" than do
other state agencies. Ibid. (quoting Trantino, 166 N.J. at 173). Therefore, Board
decisions may only be reversed if arbitrary and capricious. Ibid. A parole
decision is arbitrary and capricious if "willful and unreasoning . . . without
consideration and in disregard of circumstances." Ibid. (quoting Trantino, 166
N.J. at 201). "The burden of showing the agency's action was arbitrary,
unreasonable or capricious rests upon the appellant." Bowden v. Bayside State
Prison (Dep't of Corr.), 268 N.J. Super. 301, 304 (App. Div. 1993). Board
decisions are "accorded a strong presumption of reasonableness." McGowan v.
5
Kosmin v. N.J. State Parole Bd., 363 N.J. Super. 28 (App. Div. 2003).
A-3406-20
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N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002). Questions of
law are reviewed de novo. See Perry, 459 N.J. Super. at 193-94.
Miller accuses the Board of acting in an arbitrary, unreasonable, or
capricious manner by repetitively denying him parole and imposing thirty-six-
month FETs. He contends the Board plans to keep him "in this status
perpetually" until he dies in prison. Additionally, Miller claims he will be
"unable to obtain a ruling prior to the term[s] expiring." He claims that
subjecting him to nineteen-and-a-half additional months of imprisonment on an
FET while he awaits resolution on appeal "is totally repugnant to minimal due
process." This argument does not accord with the fact we are considering his
appeal before expiration of the FET.
Miller's other points lack sufficient merit to warrant further discussion in
a written opinion. See R. 2:11-3(e)(1)(E).
Affirmed.
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