                                NOT FOR PUBLICATION WITHOUT THE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-0783-18T1

DAVID GARNETT,

          Appellant,

v.

NEW JERSEY STATE
PAROLE BOARD,

     Respondent.
____________________

                    Submitted February 26, 2020 – Decided May 6, 2020

                    Before Judges Koblitz and Whipple.

                    On appeal from the New Jersey State Parole Board.

                    David Garnett, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa H. Raksa, Assistant Attorney
                    General, of counsel; Christopher C. Josephson, Deputy
                    Attorney General, on the brief).

PER CURIAM
      David Garnett, an inmate at Southern State Correctional Facility, appeals

from the June 20, 2018 final agency decision of the State Parole Board (Board)

denying his parole and imposing a fifty-five-month future eligibility term (FET).

Garnett was sentenced to an aggregate term of ten years after pleading guilty

under five separate indictments for eluding, creating a false public alarm, theft

by deception, resisting arrest and retaliation for past official action.

      Garnett became eligible for parole on February 6, 2018. An initial hearing

was held on November 16, 2017 and the hearing officer referred the matter to a

board panel for a hearing. The Two-Member Board Panel denied parole based

on Garnett's extensive prior offense record; his incarceration for multiple

offenses; the fact that his prior opportunities on parole, prior violations of

parole, and prior incarceration did not deter his criminal behavior; his lack of an

adequate parole plan to assist in successful reintegration into the community;

and the commission of the current offenses while on bail as well as the results

of his risk assessment evaluation.

      The Two-Member Board Panel also cited Garnett's insufficient problem

resolution skills as one of the reasons for denial. The Two-Member Board Panel

noted that Garnett demonstrated a lack of insight into his criminal behavior,




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                                         2
minimized his conduct, failed to sufficiently address his substance abuse

problem, and lacked understanding of his behavior.

      In regards to mitigating factors, the panel noted that Garnett was infraction

free; participated in both institutional programs and programs specific to his

behavior; had institutional reports which reflected favorable institutional

adjustment; attempted to enroll and participate in programs but was not

admitted; positively adjusted to the Assessment Center as well as the fact that

he achieved and maintained minimum custody status.             The panel denied

Garnett's parole and referred the matter to a third board panel member for review

and the establishment of an FET because Garnett lacked satisfactory progress in

reducing the likelihood of future criminal behavior.

      The Three-Member Board Panel issued a notice of decision, dated January

3, 2018, denying parole and established a fifty-five-month FET.            Garnett

appealed the Three-Member Board Panel's decisions to the Board arguing the

panel: (1) failed to document that a preponderance of the evidence indicates

that he failed to cooperate in his rehabilitation or that there was a reasonable

expectation that he would violate the conditions of parole if released; (2) failed

to consider material facts; and (3) a panel member participating in the




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                                        3
deliberations or dispositions of the case has a demonstrable personal interest or

has demonstrated bias, which affected the decision.

      On June 20, 2018, the Board affirmed the denial of parole and the

implementation of a fifty-five-month FET, finding no merit in appellant's

challenges. This appeal followed.

      On appeal, Garnett argues the Board's decision was arbitrary and

capricious, because it did not follow its own guidelines for establishing the FET.

He asserts the Board panel did not consider material facts, give weight to any

advancements or achievements that he made since his incarceration, nor did it

give any consideration to the professional reports or the documented support

that was included in his file. He contends the panel's failure to consider all the

pertinent material and information caused a violation of his right to due process

and asserts that extension of his FET created a liberty interest and violated his

fifth and fourteenth amendment rights.

      Our review of final decisions of the Board is limited. Malacow v. N.J.

Dep't of Corr., 457 N.J. Super. 87, 93 (App. Div. 2018). The Board's decisions,

like those of other administrative agencies, will not be reversed unless they are

"arbitrary, capricious or unreasonable or [are] not supported by substantial

credible evidence in the record as a whole." Henry v. Rahway State Prison, 81


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                                         4
N.J. 571, 579-80 (1980). This limited review of parole determinations accords

agency action a presumption of validity and reasonableness. In re Vey, 272 N.J.

Super. 199, 205 (App. Div. 1993). The burden is on the challenging party to

show the Board's actions were unreasonable. Bowden v. Bayside State Prison,

268 N.J. Super. 301, 304-05 (App. Div. 1993).

      Pursuant to N.J.S.A. 30:4-123.53(a), the Board should generally grant

parole requests for release on an inmate's parole date unless it can be shown by

a preponderance of the evidence that there is an indication the inmate failed to

cooperate in his or her rehabilitation or there is a "reasonable expectation that

the inmate will violate conditions of parole." In determining Garnett should not

be released on parole, the Board considered both mitigating and aggravating

factors. The Board noted that Garnett's criminal history was extensive, and his

prior experiences with the probation system did not deter him from other

criminal behavior. The Board also considered Garnett's insufficient problem

resolution skills and lack of insight into his own behavior. The Board considered

various documents which noted Garnett's participation in institutional programs

and noted: he was infraction free; he participated in institutional programs as

well as programs specific to his behavior; institutional reports reflected

favorable institutional adjustment; he made attempts to enroll in programs


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                                       5
despite being denied admission; his positive adjustment to the Assessment

Center; and his minimum custody status was achieved and maintained. The

Board also considered the letter of mitigation submitted by Garnett.

      The Board's decision to impose a fifty-five-month FET pursuant to

N.J.A.C. 10A:71-3.21(c) was not arbitrary, capricious or unreasonable. The

Board considered the aggregate of all pertinent factors including those set forth

in N.J.A.C. 10A:71-3.11(b). The Board may impose a FET in excess of the

standard guidelines in situations where the ordinary 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). The Board

found Garnett had not developed enough insight to understand why he

committed his crimes and how to prevent himself from doing so in the future .

These findings are supported by sufficient, credible evidence in the record.

      Affirmed.




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