JOHN MANDICH 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NOT FOR PUBLICATION WITHOUT THE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-3273-16T2

JOHN MANDICH,

Appellant,

v.

NEW JERSEY STATE
PAROLE BOARD,

Respondent.
_____________________________

Submitted May 1, 2018 – Decided June 8, 2018

Before Judges Fisher and Moynihan.

On appeal from the New Jersey State Parole
Board.

John Mandich, appellant pro se.

Gurbir S. Grewal, Attorney General, attorney
for respondent (Jason W. Rockwell, Assistant
Attorney General, of counsel; Erica R. Heyer,
Deputy Attorney General, on the brief).

PER CURIAM

Appellant John Mandich contends that the New Jersey State

Parole Board's final decision denying his parole request and
setting a 120-month future parole eligibility term (FET) was

arbitrary and capricious. We disagree and affirm.

Appellant became eligible for parole after serving almost all

of a thirty-year period of parole ineligibility attendant to a

life sentence for murder, N.J.S.A. 2C:11-3(a)(1), imposed in 1986.

A two-member Board panel, following a referral from a hearing

officer, denied parole and determined that an FET within the

presumptive schedule1 was possibly inappropriate. The two-member

panel therefore referred the matter to a three-member Board panel

for determination of an FET, which that panel set at 120 months.

The Board affirmed the decisions of both panels.

Appellant reprises the arguments made to the Parole Board

that the panels "over-counted [his] prior criminal conviction and

1
A standard FET of twenty-seven months applies when the Board
denies parole to an inmate serving a sentence for murder. N.J.A.C.
10A:71-3.21(a)(1). The standard FET can be increased or decreased
by nine months, that is, within a range of eighteen to thirty-six
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). But in setting an
FET, the Board is not limited in all cases to that eighteen to
thirty-six months range. A panel may establish an FET outside the
range if the standard 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).

2 A-3273-16T2
probation . . . to deny parole and impose the FET" based on their

findings relating to: (1) the nature of appellant's criminal

record, (2) its increasing seriousness and (3) his prior

opportunity on community supervision. Acknowledging that only

five years elapsed between his prior probation and the murder, he

contends his thirty-year incarceration makes those factors "less

weighty" and that the use of those factors – and the absence of

any consideration of the factors' remoteness — was arbitrary and

capricious. He also argues the three-member panel did not give

"the same depth of consideration" to his prison history that it

gave to the murder, as evidenced by the absence in the panel's

notice of decision of: "mitigating factors, such as appellant's

minimal offense record, his participation in programs specific to

behavior, participation in institutional programs, favorable

institutional reports, attempt made to enroll in programs but was

not admitted and appellant's achievement of attaining minimum

custody status." The three-member panel, he also avers, "failed

to consider or mention the letters of support written by [his]

daughter."

The standard of review applicable to other administrative

agency decisions applies to our review of the Parole Board's

determinations. Trantino v. N.J. State Parole Bd. (Trantino IV),

154 N.J. 19, 24-25 (1998). "We may overturn the . . . Board's

3 A-3273-16T2
decisions only if they are arbitrary and capricious." Trantino

v. N.J. State Parole Bd. (Trantino V), 166 N.J. 113, 201 (2001).

Because the parole eligibility statute creates a presumption that

an inmate should be released on the inmate's eligibility date,

N.J.S.A. 30:4-123.53,2 decisions against release must be

considered arbitrary if they are not supported by a preponderance

of the evidence in the record. Kosmin v. N.J. State Parole Bd.,

363 N.J. Super. 28, 41-42 (App. Div. 2003).

"The decision of a parole board involves 'discretionary

assessment[s] of a multiplicity of imponderables . . . .'" Trantino

V, 166 N.J. at 201 (first alteration in original) (quoting

Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S.

1, 10 (1979)). "To a greater degree than is the case with other

administrative agencies, the Parole Board's decision-making

function involves individualized discretionary appraisals."

Trantino V, 166 N.J. at 201. We will not second-guess the Board's

application of its considerable expertise in sustaining the

panels' determinations. See, e.g., In re Vey, 272 N.J. Super.

199, 205-06 (App. Div. 1993), aff’d, 135 N.J. 306 (1994). The

2
Because appellant's offenses were committed in 1986, the
governing standard, as then set forth in N.J.S.A. 30:4-123.53(a)
(1979), required his release on parole unless it was established
"by a preponderance of the evidence that there is a substantial
likelihood that the inmate will commit a crime under the law of
this State if released on parole at such time."

4 A-3273-16T2
Board's determination that "there is a substantial likelihood an

inmate will commit another crime if released" on parole must be

affirmed on appeal if that "factual finding could reasonably have

been reached on sufficient credible evidence in the whole record."

N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App.

Div. 1998).

Appellant's arguments fail to consider that the Board panels

and the Board are constrained to consider the factors set forth

in N.J.A.C. 10A:71-3.11(b), including those here considered and

found by the panels and the Board3: the facts and circumstances of

the offense;4 nature and pattern of previous convictions (an

aggravated assault for which he received a three-year probationary

sentence); adjustment to previous probation; commission of serious

disciplinary infractions (the three-member panel noted twenty-one

infractions, six of them serious, resulting in the loss of 330

days commutation credit and placement in detention, lock-up and

administrative segregation, with the last occurring in 2006);

mental and emotional health; and other relevant factors including

3
Because the determination to increase the FET beyond the
guidelines-range involves the same factors that must be considered
in deciding whether to grant or deny parole, N.J.A.C. 10A:71-
3.21(d); see N.J.A.C. 10A:71-3.11(b), we combine the panels'
findings.
4
We will not repeat the grisly details of the violent murder; we
note the specific circumstances that are documented in the record.

5 A-3273-16T2
his lack of insight into and minimization of his criminal conduct,

"limited understanding of his inner rage," "jealousy and self[-

]absorption [that] causes him to not yet get how violent was his

potential," and his underestimation of future challenges. Also

considered was a Level of Service Inventory – Revised risk

assessment evaluation (LSI-R) on which appellant scored 19,

indicating a moderate risk of recidivism. The three-member panel

also considered a psychological evaluation that utilized the LSI-

R in preparing the evaluation.5 And contrary to appellant's

contentions, the panels and Board did consider, as also required

by N.J.A.C 10A:71-3.11(b): his minimal offense record;

opportunities on community supervision without violations;

participation in programs specific to behavior and institutional

programs; institutional reports reflecting favorably on his

adjustment; attempts to enroll in programs to which he was not

admitted; achievement and maintenance of minimum custody; and the

restoration of commutation time. The letters sent by appellant's

daughter were included in the file considered by the three-member

panel, as found by the Board.

We are satisfied the Board, as mandated by N.J.A.C. 10A:71-

3.11(a), based its decision "on the aggregate of all pertinent

5
Those documents were provided to us in a confidential appendix.

6 A-3273-16T2
factors." The record, including the three-member panel's

comprehensive eight-page narrative notice of decision detailing

its reasons for meting out a 120-month FET, belies all of

appellant's contentions. We affirm the Board's decision – amply

supported by the record – for the reasons set forth in its final

decision. Although mitigating factors applied and were considered

in appellant's case, it was within the Board's discretionary power

to determine that the considerations in favor of finding that

there is a substantial likelihood appellant would commit another

crime if released on parole outweigh those mitigating

considerations. We do not substitute our judgment for that of the

Board with respect to denial of parole or the setting of an FET.

See Cestari, 224 N.J. Super. at 547. The Board applied the correct

legal standard and considered the relevant factors under N.J.A.C.

10A:71-3.11(b) in deciding to deny parole and to set a 120-month

FET. On the record presented, its decision was not arbitrary or

capricious, see McGowan v. N.J. State Parole Bd., 347 N.J. Super.

544, 563 (App. Div. 2002), and we conclude that the Board did not

abuse its discretion in denying appellant's application for

release on parole.

Affirmed.

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