Stephen Fairhurst v. 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NOT FOR PUBLICATION WITHOUT THE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-1461-22

STEPHEN FAIRHURST,

Appellant,

v.

NEW JERSEY STATE PAROLE

BOARD,

Respondent.

___________________________

Submitted April 16, 2024 – Decided May 1, 2024

Before Judges Rose and Perez Friscia.

On appeal from the New Jersey State Parole Board.

Stephen Fairhurst, appellant pro se.

Matthew J. Platkin, Attorney General, attorney for

respondent (Sookie Bae-Park, Assistant Attorney

General, of counsel; Dorothy M. Rodriguez, Deputy

Attorney General, on the brief).

PER CURIAM

Stephen Fairhurst, self-represented, appeals from an October 26, 2022

New Jersey State Parole Board (Board) decision denying his parole and

establishing a ninety-month future eligibility term (FET). We affirm.

I.

In 1992, Fairhurst fatally strangled a man he had joined in a hotel room in

Atlantic City. In October 1992, after a jury trial, defendant was convicted of

first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree aggravated

manslaughter, N.J.S.A. 2C:11-4(c); first-degree robbery, N.J.S.A. 2C:15-1; and

third-degree credit card theft, N.J.S.A. 2C:21-6(d). Following merger, the trial

judge sentenced Fairhurst to life imprisonment with a thirty-year period of

parole ineligibility for felony murder and to a consecutive four-year sentence

for credit card theft. Fairhurst was twenty-two years old when he committed the

offenses.

While incarcerated, Fairhurst committed twenty-seven institutional

infractions, which resulted in various sanctions. The infractions included

thirteen "asterisk" prohibited acts.1 His most recent disciplinary infraction

1

"An inmate who commits one or more . . . prohibited acts shall be subject to

disciplinary action and a sanction. . . . Prohibited acts preceded by an asterisk

(*) are considered the most serious and result in the most severe sanctions. "

N.J.A.C. 10A:4-4.1(a).

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occurred in December 2016. Fairhurst completed educational work including:

"Thinking for a Change"; "Cage Your Rage"; Narcotics Anonymous and

Alcoholics Anonymous meetings; a computer science course; a general

educational development test; and a "[b]achelor's degree in [p]sychology."

In 2021, Fairhurst became eligible for parole and received an initial

hearing on September 24. A hearing officer referred the matter to a two-member

panel for review.

On November 8, 2021, the two-member panel denied parole after a

hearing, determining Fairhurst "continue[d] to demonstrate criminal thinking

and behavior" and "a likelihood . . . exist[ed] that [he] w[ould] commit another

crime." The panel found the following aggravating factors: (1) the "[f]acts and

circumstances of" the murder offense; (2) an extensive prior offense record; (3)

a repetitive offense record; (4) "[p]rior offense record noted"; (5) "[n]ature of

criminal record increasingly more serious"; (6) "[c]ommitted to incarceration

for multiple offenses"; (7) "[p]rior incarceration(s) did not deter [his] criminal

behavior"; (8) commission of "numerous," "persistent," and "serious in nature"

institutional infractions, resulting in "loss of commutation time[,] confinement

in detention[,] . . . [or] [a]dministrative [s]egregation," with the last infraction

occurring on December 17, 2016; (9) the confidential "[r]isk assessment

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evaluation"; and (10) "[i]nsufficient problem(s) resolution." The panel also

found mitigating factors: (1) "[p]articipation in program(s) specific to

behavior"; (2) "[p]articipation in institutional program(s)"; (3) "[i]nstitutional

reports reflect favorable institutional adjustment"; (4) "[a]ttempt made to enroll

and participate in program(s) but was not admitted"; (5) "[m]inimum custody

status achieved/maintained"; and (6) "[c]ommutation time restored." After

considering his interview, the case file documentation, and the confidential

evaluation, the panel denied parole. The panel referred Fairhurst's case to a

three-member panel for the establishment of a FET.

On January 19, 2022, after reviewing the record and the letters of

mitigation submitted on Fairhurst's behalf, the three-member panel established

a ninety-month FET. In its ten-page decision, the panel largely adopted the two-

member panel's findings. The panel extended the FET from the presumptive

term because Fairhurst: lacked "substantive insight into [his] criminal

thinking"; "made only marginal progress in the rehabilitative process to ensure

criminal behavior and decision-making d[id] not occur again in the future";

committed twenty-seven infractions which resulted in sanctions including

"placement in detention, [a]dministrative [s]egregation, and the loss of 2,280

days commutation credits."

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After Fairhurst appealed, the Board reviewed the record and considered

his arguments, finding sufficient support for the denial of parole and the ninety-

month FET. Specifically adopting the panels' findings, the Board found: the

twenty-seven institutional infractions were a "serious concern"; Fairhurst

demonstrated a "lack of satisfactory progress in reducing future criminal

behavior" based on a review of the record; the risk assessment evaluation

indicated "a moderate risk of recidivism"; and there existed a substantial

likelihood he would commit a crime if released on parole. The Board noted his

rehabilitation efforts but determined they did not outweigh the factors militating

against parole, including his infraction history. Further, the Board concluded

the extended FET was appropriate because Fairhurst demonstrated "only

superficial and generic reasons" for his drug use, and a "superficial

understanding of [his] criminal thinking" after committing the numerous

infractions.

On appeal, Fairhurst raises the following points:

POINT I

THE PAROLE BOARD IMPROPERLY EQUATED

OFFENSES THAT WOULD NOT BE CONSIDERED

CRIMES UNDER THE LAWS OF THE STATE OF

NEW JERSEY AS EVIDENCE OF CRIMINALITY.

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POINT II

THE STATE PAROLE BOARD'[S] FAILURE TO

ADDRESS CRITICAL ISSUES, OR TO ANALYZE

THE EVIDENCE IN LIGHT OF THOSE ISSUES,

RENDERS THE [BOARD]'S DECISION

ARBITRARY, CAPRICIOUS AND

UNREASONABLE.

POINT III

THE DECISION TO DENY . . . FAIRHURST

PAROLE AND ESTABLISH A [FET] OUTSIDE OF

THE ADMINISTRATIVE GUIDELINES BASED

UPON DISCIPLINARY ADJUDICATIONS IS IN

CONTRAVENTION TO THE UNITED STATES

CONSTITUTION'S [FIFTH] AMENDMENT

PROTECTION AGAINST DOUBLE JEOPARDY.

II.

We conduct a limited and deferential review of a Parole Board's decision.

See Hare v. N.J. State Parole Bd., 368 N.J. Super. 175, 179-80 (App. Div. 2004).

"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 v. N.J. State Parole

Bd., 166 N.J. 113, 199 (2001)).

The Parole Board, however, does not exercise "unlimited or absolute"

discretionary power. Acoli v. N.J. State Parole Bd., 250 N.J. 431, 455 (2022).

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Accordingly, "[w]e will reverse a decision of the Board only if the offender

shows that the decision was arbitrary or unreasonable, lacked credible support

in the record, or violated legislative policies." K.G. v. N.J. State Parole Bd.,

458 N.J. Super. 1, 30 (App. Div. 2019). The appellant carries "[t]he burden of

showing the agency's action was arbitrary, unreasonable[,] or capricious."

Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993).

Board decisions are "accorded a strong presumption of reasonableness."

McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002).

However, we review questions of law de novo. See Perry, 459 N.J. Super. at

193-94.

Under the Parole Act of 1979, which governs Fairhurst's parole because

his offenses were committed in 1991, the Board "must determine by a

preponderance of the evidence whether there is a substantial likelihood the

inmate will commit another crime if released." Hare, 368 N.J. Super. at 180;

N.J.S.A. 30:4-123.53 (1979); see also Acoli, 250 N.J. at 456 & n.12. A

substantial likelihood "requires a finding that is more than a mere probability

and considerably less than a certainty." Acoli, 250 N.J. at 456.

"[T]he grant or denial of parole must 'be based on the aggregate of all

pertinent factors.'" Id. at 457 (quoting N.J.A.C. 10A:71-3.11(a)); see also

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Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 360 (1973) ("Common sense

dictates that [the Board's] prediction as to future conduct . . . be grounded on

due consideration of the aggregate of all of the factors which may have any

pertinence."). "That regulation sets forth a list of twenty-four factors that the

Parole Board 'shall consider,' in addition to other factors it may deem relevant,

in making a parole decision." Acoli, 250 N.J. at 457 (quoting N.J.A.C. 10A:71-

3.11(b)). As the Supreme Court in Acoli explained:

Some of those factors include: facts and

circumstances related to the underlying crime; offenses

and disciplinary infractions committed while

incarcerated; participation in institutional programs and

academic or vocational education programs;

documentation reflecting personal goals, personal

strengths or motivation for law-abiding behavior;

mental and emotional health; parole plans; availability

of community resources or support services; statements

by the inmate reflecting on the likelihood that he will

commit another crime; the failure to rehabilitate;

history of employment and education; and statement or

testimony of any victim.

[Id. at 441 (emphasis added) (citing N.J.A.C. 10A:71-

3.11(b)).]

III.

We address together Fairhurst's contentions, raised in points I and II, that

reversal of his denial of parole or alternatively a reduction of his FET is

warranted. Fairhurst argues the Board wrongly "equated institutional

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disciplinary adjudications with criminality" and failed to address "critical

issues" by not explaining "why disciplinary adjudications are . . . equivalent to

criminal convictions." As Fairhurst conceded, he committed numerous

"disciplinary infractions" consisting of at least twenty-seven institutional

adjudications, including thirteen asterisk and fourteen non-asterisk prohibited

acts. He asserts most infractions stemmed from his long history of substance

abuse. Because his infractions were nonindictable offenses and the Board found

he "continues to demonstrate criminal thinking and behavior," Fairhurst argues

the Board wrongly analyzed his offenses as criminal conduct without

explanation.

The Board correctly acknowledged that, under N.J.A.C. 10A:71-2.10, it

was statutorily authorized to consider "the final decision[s] of the Department's

officials responsible for adjudication of institutional infractions to be res

judicata." It is recognized that under N.J.S.A. 30:4-123.53(a), the Board

generally grants parole requests for release on an inmate's parole date unless

there is a "reasonable expectation that the inmate will violate conditions of

parole," which is demonstrated by "a preponderance of the evidence." The

Board is charged with "mak[ing] 'highly predictive and individualized

discretionary appraisals.'" Acoli v. N.J. State Parole Bd., 224 N.J. 213, 222

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(2016) (quoting Beckworth, 62 N.J. at 359). Thus, we discern no error in the

Board's consideration of the twenty-seven committed infractions.

In determining whether Fairhurst was eligible for parole, the Board

considered the relevant factors under N.J.A.C. 10A:71-3.11(b)(1) to (24). The

Board found "the recording of [Fairhurst's parole] hearing reflect[ed] that [he]

indicated . . . that none of [his] institutional infractions involve[d] violence," but

noted that the twenty-seven institutional infractions were "of serious concern as

a majority of the asterisk infractions [we]re drug-related." Further, the Board

determined that after thirty years of incarceration, Fairhurst did not have insight

into the "personality defects that influence[d] [his] drug use . . . result[ing] in

criminal behavior" and he provided only "superficial and generic reasons for

[his] drug use." The Board concluded by a preponderance of the evidence that

there was "a substantial likelihood that [Fairhurst] would commit [another]

crime if released." Fairhurst's contention that he is entitled to a new hearing

because the Board failed to address critical issues is unsupported. We are

satisfied the Board's findings for denying parole are amply supported by

sufficient credible evidence in the record.

Fairhurst argues for the first time on appeal that the Board's consideration

of his numerous infractions under N.J.A.C. 10A:71-3.11(b)(1) to (2) constituted

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double jeopardy and is fundamentally unfair because he had already been

sanctioned for committing the institutional offenses. We generally decline to

consider issues not presented below when an opportunity for such a presentation

is available unless the questions raised on appeal concern jurisdiction or matters

of great public interest. State v. Robinson, 200 N.J. 1, 20 (2009) (quoting Nieder

v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Nevertheless, for the sake

of completeness, we review Fairhurst's argument.

"The Double Jeopardy Clause of the Fifth Amendment of the United

States Constitution, made applicable to the States by the Fourteenth

Amendment, protects against the reprosecution of a person for the same offense

after an acquittal or conviction, and against multiple criminal punishments for

the same offense." State v. Black, 153 N.J. 438, 443 (1998) (citing Brown v.

Ohio, 432 U.S. 161, 165 (1977)), abrogated on other grounds by State v.

Hernandez, 208 N.J. 24 (2011). The Fifth Amendment's Double Jeopardy

Clause "provides that no person shall 'be subject for the same offense to be twice

put in jeopardy of life or limb.'" State v. Miles, 229 N.J. 83, 92 (2017) (quoting

U.S. Const. amend. V). Similarly, under the New Jersey Constitution, "No

person shall, after acquittal, be tried for the same offense." N.J. Const. art. I, ¶

11; see Miles, 229 N.J. at 92 ("This Court has consistently interpreted the State

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Constitution's double-jeopardy protection as coextensive with the guarantee of

the federal Constitution."). "The Double Jeopardy Clause's prohibition against

multiple punishments clearly protects against a second criminal penalty being

imposed in a second criminal prosecution for the same offense. It is not

generally implicated by penalties imposed in civil and administrative

proceedings." Black, 153 N.J. at 443.

We have elucidated that a "criminal prosecution is a judicial proceeding

that vindicates the community's interests in punishing criminal conduct." Russo

v. N.J. Dep't of Corr., 324 N.J. Super. 576, 583 (App. Div. 1999). "In contrast,

the prison disciplinary process determines whether an inmate has violated the

conditions of his incarceration and it is designed to advance the remedial goal

of maintaining institutional order and security." Ibid.

Fairhurst's adjudicated institutional infractions were distinct from

criminal prosecution. In reviewing his parole and FET, the Board's

consideration of his infractions was statutorily permitted by N.J.A.C. 10A:71-

2.10(a). Thus, consideration of the twenty-seven infractions was neither a

violation of the double jeopardy clause nor fundamentally unfair. See State v.

Melvin, 248 N.J. 321, 348 (2021) (noting that the doctrine of fundamental

fairness is sparingly applied "to protect citizens generally against unjust and

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arbitrary governmental action" (quoting State v. Saavedra, 222 N.J. 39, 67

(2015))). We further observe the Board considered the aggregate of all pertinent

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

In summary, we conclude the Board's decision to deny parole and impose

a lengthier FET pursuant to N.J.A.C. 10A:71-3.21(d) was not arbitrary,

capricious, or unreasonable, and "[wa]s supported by sufficient credible

evidence on the record as a whole." R. 2:11-3(e)(1)(D). To the extent not

addressed, Fairhurst's remaining arguments lack sufficient merit to warrant

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

Affirmed.

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