August 22, 2007
WILLIAM THOMAS, APPELLANT,
NEW JERSEY STATE PAROLE BOARD, DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 14, 2007
Before Judges S.L. Reisner and Lyons.
Appellant, William Thomas (Thomas), a New Jersey State prisoner, appeals from the February 24, 2006 final administrative decision of respondent, New Jersey State Parole Board (Board), denying him parole and establishing a future eligibility term (FET) of eighty-four months. The relevant facts and procedural history are as follows.
On May 6, 1980, Thomas committed a double homicide. His victims were a seventeen-year-old male and a fifteen-year-old female. They were killed by blunt force trauma with a tire iron. Following the murder, Thomas and his accomplice fled the scene and went to Maine and then Arizona. In July 1980, Thomas enlisted in the United States Army and was subsequently transferred to duty in Germany. He was arrested on July 28, 1981 and then extradited to the United States. On February 1, 1982, he pled non vult to two counts of murder. On February 19, 1982, he was sentenced to two concurrent life sentences.
On July 7, 1995, Thomas was denied parole at his initial parole hearing and was given an FET of 120 months. Thomas was again denied parole on June 21, 2001 and given an FET of eighty-four months. Both of these decisions were affirmed by the Board. On July 18, 2005, an Adult Panel of the Board denied Thomas parole and referred his case to a three member panel for the establishment of an FET. On September 21, 2005, the three member panel established an eighty-four month FET. On February 24, 2006, the Board affirmed the Adult Panel's July 18, 2005 decision to deny parole and refer the case to the three member panel for the establishment of an FET and the three member panel's September 21, 2005 decision to establish an eighty-four month FET. This appeal ensued.
On appeal, Thomas presents the following arguments for our consideration:
POINT I: APPELLANT HAS BEEN DENIED PAROLE, IN HIS 3rd ATTEMPT FOR PAROLE, WITHOUT ANY INTERVENING FACTORS, AND BEYOND THE ADMINISTRATIVE GUIDELINES, WITHOUT CLEARLY DEMONSTRATING A LIKELIHOOD TO COMMIT ANOTHER CRIME, IS ARBITRARY, CAPRICIOUS, AND [VIOLATIVE] OF APPELLANT'S "DUE PROCESS" AND EX POST FACTO RIGHTS.
POINT II: THE DEPARTMENT OF CORRECTIONS AND PAROLE BOARD'S FAILURE TO ALLOW THE APPELLANT TO RECEIVE FULL MINIMUM, AND EVENTUALLY HALFWAY HOUSE STATUS, HAS EFFECTIVELY DENIED APPELLANT THE ABILITY TO SEEK HIS FULL REHABILITATIVE POTENTIAL. THEREBY DENYING THE APPELLANT PAROLE.
POINT III: THE BOARDS RELIANCE ON THE UNCONTROVERTED CONFIDENTIAL PROFESSIONAL REPORTS; FAILURE TO ALLOW APPELLANT TO CONFRONT HIS ACCUSER; AND FAILURE TO PROVIDE APPELLANT WITH THE MEANS OF COUNTERING [THEIR] OPINIONS, AND ALLEGATIONS, VIOLATES APPELLANT'S 6th AMENDMENT RIGHT TO CONFRONT ANY ACCUSER, AND 14th AMENDMENT RIGHT TO "DUE PROCESS".
POINT IV: APPELLANT PROCEEDING AT A CRITICAL STAGE WITHOUT COUNSEL IS A VIOLATION OF HIS 6th AMENDMENT RIGHT TO COUNSEL, AND 14th AMENDMENT RIGHT TO "DUE PROCESS" OF LAW. POINT V: RESPONDENTS DENIED APPELLANT HIS 14th AMENDMENT RIGHT TO "DUE PROCESS" AS EXAMPLED THROUGH APPRENDI, AND IT[S] PROGENY, BY INTRODUCING ALLEGATIONS OUTSIDE OF ANY FACTS ASCERTAINED FROM THE RECORD BEFORE THE GRAND JURY, AND SUBSEQUENT SENTENCING COURT.
POINT VI: APPELLANT DENIES THE SUBSTANTIVE REASONS THAT THE PAROLE BOARD HAS DENIED PAROLE AS PROVIDED BY THE RECORD SUBMITTED BY THE RESPONDENT.
We consider these arguments by addressing Thomas' points seriatim.
Thomas argues in his first point that the Board violated his due process and his ex post facto rights by improperly utilizing the standard for parole set forth in N.J.S.A. 30:4-123.56c. Appellant argues that N.J.S.A. 30:4-123.56c, as it existed prior to its amendment in 1997, should be the applicable standard. N.J.S.A. 30:4-123.56c, prior to the 1997 amendment, provided:
[a]n inmate shall be released on parole on the new parole eligibility date unless new information filed pursuant to a procedure identical to that set forth in section 10 indicates by a preponderance of the evidence that there is a substantial likelihood that the inmate will commit a crime under the laws of this State if released on parole at such time . . . . [1997 N.J. Sess. Law Serv. 213 (West).]
In 1997, this statute was amended and now reads:
[a]n inmate shall be released on parole on the new parole eligibility date unless information filed pursuant to a procedure identical to that set forth in section 10 of P.L.1979, c. 441 (C.30:4-123.54) indicates by a preponderance of the evidence that the inmate has failed to cooperate in his or her own rehabilitation or that there is a reasonable expectation that the inmate will violate conditions of parole imposed pursuant to Section 15 of P.L.1979, c. 441 (C.30:4-123.59) if released on parole at that time . . . . [N.J.S.A. 30:4-123.56c.]
The 1997 amendment was enacted "to change the standard by which the parole board determines whether an inmate should be paroled, [and to] allow the Board to weigh all relevant information in an inmate's record when considering that inmate's parole eligibility at second and subsequent hearings . . ." See Assembly Law & Public Safety Committee, Statement to Assembly Bill No. 21 (March 3, 1997); 1997 N.J. Sess. Law Serv. 213 (West). The statute, as amended, provides the Board with more discretion since it changes the test from a substantial likelihood that the inmate will commit a crime to a broader test, which includes whether an inmate has failed to cooperate in his or her own rehabilitation, or there is a reasonable expectation that the inmate will violate conditions of parole. Since we have concluded that the 1997 amendment does not apply to inmates sentenced before 1997, like Thomas, the standard which applies in this case is the pre-1997 standard. See Trantino v. New Jersey State Parole Bd., 331 N.J. Super. 577, 605 (App. Div. 2000), modified in part, aff'd in part, 166 N.J. 113 (2001). In fact, in its February 24, 2006 letter that the Board sent to Thomas advising him of its decision, the Board indicates that it utilized the pre-1997 standard. The argument which Thomas advances is not only the issue of the narrower pre-1997 standard but another aspect of the 1997 amendments.
The 1997 amendments also broadened the information which the Board may utilize in reviewing whether there is a substantial likelihood that the inmate will commit a crime upon release. The pre-1997 amendment required an inmate to be released on the new parole eligibility date unless "new information" was found that there is a substantial likelihood that if released the inmate will commit a crime. See 1997 N.J. Sess. Law Serv. 213 (West). The 1997 amendments struck the word "new" so that, "at the second and subsequent parole hearings, the parole board would not be required to base its decision strictly on information developed since the previous denial of parole, but could consider information provided at earlier parole hearings." Assembly Law & Public Safety Committee, Statement to Assembly Bill No. 21 (March 3, 1997).
In Trantino, we explained and ruled that the 1997 amendments to N.J.S.A. 30:4-123.56c "did not violate the ex post facto clause since this change [from "new information" to "information"] in the law is a procedural modification that does not constitute a substantive change in the parole release criteria." 331 N.J. Super. at 610 (citing State v. Muhammad, 145 N.J. 23, 56-57 (1996); California Dept. of Corr. v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed. 2d 588 (1995)). We concluded that "the 1997 statutory amendment does not modify the parole eligibility standard" applicable to an inmate such as Thomas; "rather, it simply allows the Board to consider all available evidence relevant to the application of that standard." Id. at 610-11. Hence, we find no ex post facto violation in this case.
In Thomas' second point, he argues that he was denied full minimum status by the Department of Corrections and that is impairing his potential for rehabilitation. This issue is not properly before us because, on April 3, 2006, we dismissed Thomas' appeal as to the Department of Corrections.
In points three and four of Thomas' argument, he contends that his Sixth Amendment right of confrontation was violated when he was not able to review "confidential" materials, that he was denied an expert to testify on his behalf at the State's expense, and that he was denied counsel to assist him in his parole hearing.
In Puchalski v. New Jersey State Parole Bd., 104 N.J. Super. 294, 300 (App. Div. 1969), aff'd, 55 N.J. 113 (1969), cert. denied, 398 U.S. 938, 90 S.Ct. 1841, 26 L.Ed. 2d 270 (1970), we held that there is no right to State-supplied counsel in connection with a Board hearing. Further, in Thompson v. New Jersey State Parole Bd., 210 N.J. Super. 107, 126 (App. Div. 1986), we reviewed the fact that the Board, by necessity, must at times utilize confidential information in making its decision. We held in that case that if "confidential materials . . . play [ ] a substantial role in producing the adverse decision [against an inmate] in a case appealed to this court, we will undertake to review the materials and determine the propriety of the decision to withhold them" from the inmate. Ibid. In that case, we found that the withheld materials did not play a substantial role. However, in this case, the Board relied upon confidential materials, and we have reviewed them. They were properly classified as confidential and appropriately withheld. Therefore, in accordance with Thompson, Thomas' rights concerning confidential materials have been addressed.
As we have noted, "there is no question but that due process applies to parole eligibility decisions." Gerardo v. New Jersey State Parole Bd., 221 N.J. Super. 442, 448 (App. Div. 1987). However, we have also noted that "parole is not a part of criminal prosecution and thus the full panoply of rights accorded a criminal defendant is not applicable," such as the unfettered right of confrontation. Ibid. Recognizing that the full panoply of rights accorded to a criminal defendant does not apply to an inmate at a parole hearing and specifically that the right to counsel does not exist at a Board hearing, we also conclude that there is no obligation on the State's part to provide a inmate with an expert for a parole eligibility hearing at the State's expense.
Thomas also argues that his right to due process was violated because the Board used material that was not proven beyond a reasonable doubt in an arbitrary and capricious manner. Thomas argues that since he was convicted and sentenced to life based on findings pursuant to a reasonable doubt standard, it is violative of his constitutional rights to be continually held and denied parole by using a preponderance standard. Thomas appears to be arguing that a life sentence and the judge's comments at sentencing equated to a fifteen year term and that denying Thomas parole after fifteen years on findings arrived at using a preponderance standard violates his constitutional rights. This argument is without merit. His guilty plea was to two murders which carried life sentences. In 1982, at the time of the sentence, N.J.S.A. 30:4-123.51b provided that:
[e]ach adult inmate sentenced to a term of life imprisonment shall become primarily eligible for parole after having served any judicial or statutory mandatory minimum term, or 25 years where no mandatory minimum term has been imposed less commutation time for good behavior and credits for diligent application to work and other institutional assignments. [1982 N.J. Laws 434.]
Hence, when the trial judge did not establish a minimum parole ineligibility period, the law would have imposed a mandatory minimum period of parole ineligibility of twenty-five years (less credits), not the fifteen referred to by Thomas. The second flaw in Thomas' argument is the implicit assumption that at the point of parole eligibility, one is entitled to parole. We have held that although the "consideration for parole is a right fixed by statute . . . the granting or withholding of parole is a function reposing exclusively in the Parole Board." Faas v. Zink, 48 N.J. Super. 309, 312 (App. Div. 1957), aff'd, 25 N.J. 500 (1958). Lastly, Thomas confuses the Apprendi line of cases dealing with sentencing in criminal matters with the administration of the parole system. The parole statutes clearly set forth the standard of proof as the preponderance of the evidence and the parole system is an administrative one whereas Apprendi addresses the standard of proof in a criminal matter and therefore a reasonable doubt standard must be used in those situations. Compare N.J.S.A. 30:4-123.56c and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000).
In Thomas' last point, he argues that the Board did not have substantial credible evidence to support its determination. The Board, in its February 24, 2006 decision, found that the three member panel sufficiently documented the specific and particular reasons for the FET established. Furthermore, the Board noted that Thomas pled guilty to two murders and while he has participated in numerous programs, it determined that the Adult Panel documented by a preponderance of the evidence, that there is a substantial likelihood that Thomas would commit a crime if released. We have reviewed the record presented to the Adult Panel. It is comprehensive and complete. It documents, with numerous specific examples, Thomas' lack of insight into his violent criminal behavior. It demonstrates repeated and long-standing inconsistencies and equivocations by Thomas as to details and his responsibility for these horrific murders. It goes to great lengths to demonstrate how the record supports a finding that Thomas minimized his past criminal behavior.
Our Supreme Court has outlined the standard of review of parole determinations in Trantino v. New Jersey State Parole Bd., 166 N.J. 113, 172-74 (2001):
In [Trantino v. New Jersey State Parole Bd., 154 N.J. 19-22, 23 (1998) ("Trantino IV")], we set forth the standard that courts should follow in determining the validity of the Parole Board's denial of parole. A reviewing court must examine:
(1) whether the agency's action violates express or implied legislative policy, i.e., did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [Trantino IV, supra, 154 N.J. at 24.] In this appeal we focus on the second prong of that three-part standard. We noted in Trantino IV, supra, the essentially factual nature of a Parole Board's determination that "'there is a substantial likelihood that an inmate will commit another crime if released,'" and that accordingly a reviewing court is obligated to "'determine whether [that] factual finding could reasonably have been reached on sufficient credible evidence in the whole record.'" Id. at 24, 711 A.2d 260 (quoting State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App.Div.) (citation omitted), certif. denied, 111 N.J. 649 (1988)).
We previously have recognized that Parole Board decisions are highly "individualized discretionary appraisals." Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973). Accordingly, the Board "has broad but not unlimited discretionary powers," and its determinations "are always judicially reviewable for arbitrariness." Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971); accord In re State In Interest of Steenback, 34 N.J. 89, 101 (1961); In re Smigelski, 30 N.J. 513, 527-28 (1959).
Although in Trantino IV, supra, we acknowledged "the inherent difficulty in gauging whether a parole determination constitutes an abuse of discretion," 154 N.J. at 25, we emphasized that the judicial review of Parole Board determinations "does not engender a more exacting standard of judicial review than that applicable to other administrative agency decisions."
Ibid. As this Court observed in In re Hawley Parole Application, 98 N.J. 108 (1984):
The Board is the administrative agency charged with the responsibility of deciding whether an inmate satisfies the criteria for parole release under the Parole Act of 1979. We find no reason to exempt the Parole Board from the well-established principle that a court may review the actions of an administrative agency to determine if its power is being exercised arbitrarily or capriciously. [Id. at 112 (citations omitted).]
See also Cestari, supra, 224 N.J. Super. at 548 n.6 (rejecting the contention that a more restrictive standard of judicial review should apply to parole release than to other administrative decisions).
We also take note of the Parole Board's statement in its June 9, 1999 decision denying parole that "the actual granting or withholding of parole is a function reposing exclusively in the Parole Board, and there is no such thing as judicial parole."
Although the instances are few in which courts have found Parole Board decisions denying parole to be so arbitrary that affirmative judicial intervention to grant parole was necessary, that relief clearly may be encompassed within the province of judicial review. See Williams v. State Parole Board, 336 N.J. Super. 1, 9-10 (App.Div.2000); Cestari, supra, 224 N.J.
Super. at 551; Mallamaci v. Dietz, 146 N.J.
Super. 15, 22-23 (App.Div.1976).
In applying that standard of review in this case, we are satisfied that the Board did not act in an arbitrary or capricious fashion. The record, including the confidential record, contains sufficient credible evidence to support denial of parole.*fn1 There clearly is evidence which supports, by a preponderance, that there is a substantial likelihood that the inmate will commit a crime under the laws of this State if released on parole. The Board's finding of minimization, lack of insight, equivocation, inconsistency, as well as the information in the confidential file, all support the Board's decision. We, therefore, affirm.