ANTONIO SANCHEZ 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NOT FOR PUBLICATION WITHOUT THE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-2485-15T3

ANTONIO SANCHEZ,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

___________________________________

Submitted September 12, 2017 – Decided October 19, 2017

Before Judges Leone and Mawla.

On appeal from the New Jersey State Parole
Board.

Antonio Sanchez, appellant pro se.

Christopher S. Porrino, Attorney General,
attorney for respondent (Lisa A. Puglisi,
Assistant Attorney General, of counsel;
Gregory R. Bueno, Deputy Attorney General, on
the brief).

PER CURIAM

Appellant Antonio Sanchez challenges the March 25, 2015 final

administrative decision of respondent, the New Jersey State Parole
Board (Board), denying parole and establishing a 120-month future

eligibility term (FET). We affirm.

I.

On April 4, 1984, Sanchez, then on probation, murdered the

victim Enrico Castillo. Sanchez and co-defendant Luis Columbie

came to the doorway of the victim's apartment armed with a shotgun.

They demanded the victim repay a $10 debt. When the victim said

he did not have the money, Sanchez killed the victim by shooting

him in the head and chest with the shotgun.

After the incident, Sanchez and Columbie fled the scene and

were preparing to flee Newark in a car, but officers arrested

them. The officers recovered from the car a sawed-off shotgun and

a sawed-off rifle, both loaded.

A jury found Sanchez guilty of first-degree murder, second-

degree possession of a weapon for an unlawful purpose, and two

counts of third-degree possession of a prohibited weapon. The

trial court sentenced defendant on February 28, 1985, to life in

prison with a thirty-year mandatory minimum. We affirmed his

conviction. State v. Sanchez, 224 N.J. Super. 231 (App. Div.),

certif. denied, 111 N.J. 653 (1988).

During his time at Southwoods State Prison, Sanchez acquired

an "abysmal institutional record" of eighty-four infractions.

Thirty-nine were serious, including two armed assaults, thirteen

2 A-2485-15T3
unarmed assaults, three weapon possession offenses, two fighting

offenses, and four threat offenses.

Sanchez became eligible for parole in the summer of 2014. On

March 19, 2014, Sanchez received an initial hearing in front of a

hearing officer, who referred the matter to a panel for a hearing

pursuant to N.J.A.C. 10A:71-3.15(b).

A two-member panel interviewed Sanchez, who stated as

follows. Earlier on the day of the murder, he was socializing

with the victim, who was gambling and drinking alcohol excessively.

The victim borrowed $10 from Sanchez, and then asked for more

money. When Sanchez refused, the victim pulled a knife and stabbed

Columbie. Sanchez left, got a shotgun, returned, and shot the

victim.

On April 4, 2014, the two-member panel, composed of Thomas

Haaf and Lloyd Henderson, denied Sanchez parole and referred his

case to a three-member panel for the separate determination of a

FET outside of administrative guidelines.

The two-member panel gave the following reasons for denying

parole: Sanchez had a prior criminal record; his criminal record

became "increasingly more serious"; he committed his murder

offense while on probation; he had a poor institutional adjustment;

he displayed insufficient problem resolution; he lacked an

adequate parole plan; and his risk evaluation assessment score

3 A-2485-15T3
indicated that he posed a "medium" risk to recidivate. In

particular, based on its interview of Sanchez, the panel found he

"lacked insight into his criminal behavior," "minimized his

conduct," and needed to address criminal thinking and to improve

his decision making.

Because the two-member panel concluded that the presumptive

FET was not appropriate, a three-member panel had the sole task

of determining Sanchez's FET outside of the administrative

guidelines as required by N.J.A.C. 10A:71-3.21(d)(1). This three-

member panel was comprised of Haaf, Henderson, and Yolette Ross.

On September 10, 2014, in the Notice of Decision, the three-member

panel imposed a 120-month FET for the same reasons the two-member

panel denied parole.

On November 13, 2014, the three-member panel issued a notice

of decision detailing its reasons for establishing a 120-month

FET. Specifically, after a "comprehensive review of the entire

record" the three-member panel found it "clear that [Sanchez]

continue[s] to remain a substantial threat to public safety."

Thus, "any term less than a one hundred and twenty (120) month

future eligibility term would be wholly inconsistent with the

conclusion that [Sanchez] ha[s] not shown the requisite amount of

rehabilitative progress in reducing the likelihood of future

criminal activity."

4 A-2485-15T3
 Sanchez appealed the three-member panel's decision on the

Board. Haaf, Henderson, and Ross recused themselves from

participating in the Board's final agency decision. On March 25,

2015, the full Board affirmed the decisions to deny Sanchez parole

and to impose the 120-month FET generally for the reasons

articulated by the two-member and three-member panels

respectively.

Sanchez appeals, raising the following arguments:

POINT I – APPELLANT HAS ALREADY SERVED THE
PUNITIVE PORTION OF HIS SENTENCE AND THERE IS
NOTHING IN THE RECORD[] TO SUGGEST THAT A
SUBSTANTIAL [sic] LIKELIHOOD EXISTS THAT
APPELLANT WILL COMMIT A NEW CRIME IF RELEASED
ON PAROLE AT THIS TIME, ESPECIALLY WHEN
APPELLANT HAS NO ADULT AND/OR JUVENILE RECORD,
THEREFORE, THE DECISION OF THE N.J. STATE
PAROLE BOARD TO DENY HIM PAROLE MUST BE
REVERSED.

POINT II – APPELLANT CONTENDS THAT FOR THE
N.J. STATE PAROLE BOARD TO ESTABLISH A 120
MONTH FET IS CLEARLY INAPPROPRIATE AND MUST
BE REVERSED TO IMPOSE AN APPROPRIATE TERM IN
CONFORMITY WITH THE LAW.

II.

"[T]he Parole Board is the 'agency charged with the

responsibility of deciding whether an inmate satisfies the

criteria for parole release under the Parole Act of 1979.'" Acoli

v. N.J. State Parole Bd., 224 N.J. 213, 222, cert.

denied, U.S. , 137 S. Ct. 85, 196 L. Ed. 2d 37 (2016). The

5 A-2485-15T3
Board's discretionary powers are broad. Trantino v. N.J. State

Parole Bd., 166 N.J. 113, 173 (2001). We will disturb the Board's

decisions only if "arbitrary, capricious or unreasonable, or [if]

not 'supported by substantial credible evidence in the record as

a whole.'" Id. at 191-92 (emphasis omitted); see also Acoli,

supra, 224 N.J. at 222-23.

Our "limited scope of review is grounded in strong public

policy concerns and practical realities." Trantino, supra, 166

N.J. at 200. "[T]he Parole Board makes 'highly predictive and

individualized discretionary appraisals,'" which "must

realistically be recognized to be inherently imprecise, as they

are based on 'discretionary assessment[s] of a multiplicity of

imponderables.'" Acoli, supra, 224 N.J. at 222 (alteration in

original) (citations omitted). We must hew to our standard of

review.

III.

Applying that standard, we affirm the Board's decision to

deny parole. Prior to 1997, an inmate had to be released on parole

unless there was "a substantial likelihood that the inmate will

commit a crime under the law of this State if released on parole

at such time." N.J.S.A. 30:4-123.53(a) (amended 1997). That is

the standard applicable to defendant, whose crime was committed

6 A-2485-15T3
in 1984. Trantino v. N.J. State Parole Bd., 331 N.J. Super. 577,

605 (App. Div. 2000), aff'd as modified, 166 N.J. 113, 126 (2001).1

The Board properly found that "a preponderance of evidence

indicates there is a substantial likelihood that [Sanchez] would

commit a crime if released on parole at this time." Because of

the "essentially factual nature" of the Board's determination that

an inmate is substantially likely to reoffend, "a reviewing court

is [only] obligated to '"determine whether [that] factual finding

could reasonably have been reached on sufficient credible evidence

in the whole record."'" Trantino, supra, 166 N.J. at 172 (citation

omitted). Further, our jurisprudence dictates "[w]e are . . .

required to accord deference to the findings of the administrative

agency that are substantially influenced by its opportunity to

hear and see the witness[] and to have the 'feel of the case,' an

opportunity which a reviewing court cannot enjoy." Trantino,

supra, 166 N.J. at 200 (citation omitted).

The Board adopted the two-member panel's findings based on

N.J.A.C. 10A:71-3.11(b), which "contain[s] a non-exhaustive list

of multiple factors the Board may consider in determining whether

1
In 1997, that statute was amended to allow the board to deny
parole when the preponderance of the evidence indicates "there is
a reasonable expectation that the inmate will violate conditions
of parole . . . if released on parole at that time." N.J.S.A.
30:4-123.53(a).

7 A-2485-15T3
an inmate should be released on parole." Hare v. N.J. State Parole

Bd., 368 N.J. Super. 175, 180 (App. Div.), certif. denied, 180

N.J. 452 (2004).

Neither the two-member panel nor the Board focused solely on

the nature of Sanchez's offense. They also considered

"[s]tatements by the inmate reflecting on the likelihood that he

. . . will commit another crime" if released on parole. N.J.A.C.

10A:71-3.11(b)(17).

During the two-member panel's discussion with Sanchez, he

repeatedly claimed the murder was a reaction to the victim

allegedly stabbing Columbie earlier. The panel viewed these

responses as Sanchez "turn[ing] a blind eye to the fact that an

extended period of time transpired between the stabbing . . . and

[Sanchez] retrieving the shotgun[,] returning to the scene and

firing it at the victim's head/chest." The panel directly asked

if the victim's inability to repay $10 was a justifiable reason

to fire the weapon, and Sanchez "sidestepped the issue and

reiterated that the victim had a knife and was hostile."

As the Board noted, the two-member panel properly determined

Sanchez exhibited insufficient problem resolution because he

lacked insight into his crime. The panel found Sanchez simply

treated "his criminal acts as justified – although he had left

[the victim's house] and came back. Views his behavior as a result

8 A-2485-15T3
of bad people – not himself. Same with his prison behavior – a

result of other inmates' actions – not his decisions." Further,

the panel noted "the record supports that [Sanchez] do[es] not

understand the violent reactionary and thought process [he]

employed when [he] killed the victim in such an extreme manner."

The Board noted the panel found sufficient evidence that Sanchez

was unable to acknowledge the extent of his actions involved in

the murder and repeatedly chose to "place the blame for [his]

actions firmly on the shoulders of the victim."

The two-member panel and the Board found during Sanchez's

three-decade incarceration, he similarly did not take

responsibility for his multitude of often serious prison

infractions, which included armed assaults, unarmed assaults,

weapons possession, threats, bodily harm, and fighting. See

N.J.A.C. 10A:71-3.11(b)(1); N.J.A.C. 10A:71-3.11(b)(2).2 The

Board adopted the panel's view that Sanchez "accepted zero

responsibility" and stated other inmates and staff members

"instigat[ed] conflicts with him." The board noted, "[t]here was

not one point during [his] hearing wherein [he] accepted the blame

or responsibility" for any of his actions, in or out of the prison

2
As the three-member panel noted, Sanchez's infractions "have
components of violent, threatening, and confrontational behavior
which [he] employed in the murder offense."

9 A-2485-15T3
setting. Additionally, the Board noted that Sanchez has not

sufficiently addressed a substance abuse problem.

Another factor leading to the Board's denial of Sanchez's

parole request was the inadequacy of his parole plan. See N.J.A.C.

10A:71-3.11(b)(14). Sanchez originally stated that he "had no

place to live" and sought a "placement." He also suggested that

he would live with family in another state. The panel found his

parole plan inadequate because as an inactive member of society

for the past three decades, he would require a "stable and

supportive living arrangement along with a productive and viable

employment opportunity." In its professional expertise, the Board

found neither plan would accomplish this feat. The Board did not

hold Sanchez's alleged difficulties with English against him.

The Board also considered mitigating factors, including

Sanchez's lack of infractions since 2009, and his participation

in behavior-specific programs, such as therapeutic and job skill

programs. Sanchez argued that his involvement in Islamic studies,

courses on HVAC, pre-GED, culinary arts, building trades, and

woodworking, and his perfect attendance at the "Cage Your Rage"

anger management program showed there was no substantial

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

Board found these mitigating factors did not overcome the

10 A-2485-15T3
substantial evidence that appellant was likely to engage in future

criminal behavior.

Sanchez mistakenly claims he was not given an in-depth

psychological evaluation. In fact, he was given such an evaluation

on December 29, 2013, which has been included in the Board's

confidential appendix. The evaluation was properly relied on by

the two-member and three-member panels and the Board. See

Trantino, supra, 166 N.J. at 170.

We are convinced that it was neither arbitrary nor capricious

for the Board to deny Sanchez parole.

IV.

We likewise are satisfied that the 120-month FET imposed by

the Board is neither arbitrary nor capricious. Sanchez contends

the Board erred by accepting the three-member panel's departure

from the twenty-seven-month presumptive FET for murder and other

crimes with sentences in excess of fourteen years. N.J.A.C.

10A:71-3.21(a)(1). However, the three-member panel may set a FET

differing from N.J.A.C. 10A:71-3.21(a)-(c) "if the future parole

eligibility date which would be established pursuant to such

subsections 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).

11 A-2485-15T3
 The Board must focus its attention squarely on the likelihood

of recidivism when reviewing the FET determination. See McGowan

v. N.J. State Parole Bd., 347 N.J. Super. 544, 565 (App. Div.

2002) (finding the imposition of a thirty-year FET within the

Board's discretion). The Board acknowledged the likelihood of

recidivism and Sanchez's lack of insight into his crime were

"critical question[s] in [Sanchez's] case."

Sanchez's inability to take responsibility for his deadly

actions and his numerous institutional infractions were considered

by the Board. The Board noted some of Sanchez's infractions "have

components of violent, threatening and confrontational behavior

which [he] employed in the murder offense." Sanchez's lack of

understanding about taking the victim's life also suggested to the

Board that the counseling and programs he attended "had not

assisted [him] in gaining any insight into [his] behavioral

issues." Thus, the Board's decision to uphold the 120-month FET

due to Sanchez's lack of satisfactory progress in reducing his

likelihood of future criminal behavior was not arbitrary,

capricious, or unreasonable.

Defendant incorrectly claims that he had no adult or juvenile

record. Although the two-member panel listed Sanchez's prior

crimes as armed robbery and aggravated assault, the three-member

panel correctly noted that he had been convicted only of receiving

12 A-2485-15T3
stolen property and escape. Moreover, the decisions of both panels

were amended to indicate his prior criminal record was "minimal"

and this was a mitigating factor. Most importantly, the Board

recognized both panels had amended their decisions. The Board's

determination focused on Sanchez's lack of insight into the murder,

and not his minimal criminal record. Thus, the two-member panel's

initial error was corrected by the panels and the Board, and

provides no basis for overturning the Board's conclusions to deny

parole and impose a 120-month FET.

V.

Finally, Sanchez claims the Board violated N.J.A.C. 10A:71-

1.5(b). He argues that because Board members Haaf and Henderson

served as the two-member panel that initially considered his parole

application, they were barred from being part of the three-member

panel, with Board member Ross, that established his 120-month FET.

Sanchez misreads the regulation. In pertinent part, N.J.A.C.

10A:71-1.5(b) states: "A Board member shall not participate in any

Board or Board panel disposition of the member's initial

decision[.]" Ibid. (emphasis added). Under the plain language

of the statute, the board member is merely prohibited from acting

as an appellate reviewer of his or her own decision.

Here, the two-member panel and the three-member panel were

responsible for two different determinations, respectively,

13 A-2485-15T3
whether to parole Sanchez and how long his FET should be. The

three-member panel was not an appellate reviewer of the two-member

panel's denial of his parole request. Rather, the three-member

panel exclusively set the length of the FET.

It was the Board which reviewed the two-member panel's

decision to deny parole. All three members recused themselves

from participating in the Board's final agency decision.

Therefore, no board member reviewed his or her own "initial

decision" during this process, making the Board in compliance with

N.J.S.A. 10A:71-1.5(b).

Affirmed.

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