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Planker v. New Jersey State Parole Board


March 25, 2008


On appeal from New Jersey State Parole Board.

Per curiam.



Submitted February 13, 2008

Before Judges Coburn and Grall.

Wayne Planker is an inmate currently confined at Northern State Prison. He is serving two consecutive twenty-year sentences for two counts of first-degree aggravated sexual assault and concurrent sentences for related crimes. The victims were the teenaged daughters of a woman with whom he once lived. The crimes were committed between December 3, 1981, and July 3, 1984. Planker was convicted in 1992. He now appeals from a final decision of the New Jersey State Parole Board denying parole and establishing a future parole eligibility term (FET) of thirty months.

Planker raises the following issues on appeal:

I. The [December 1, 2006] Panel and the [May 24, 2007] Appeal Board's decision to give Petitioner a [thirty-]month hit should be reversed due to a conflict of interest between A.D.T.C. doctors and Petitioner.

II. The [December 1, 2006] Panel's decision to conduct the parole hearing without first getting the mitigating evidence from the [five] psychological reports pertaining to the "waiver of confidentiality" forms Petitioner signed [four] different times should be reversed because Petitioner wasn't able to receive credit for the therapeutic rehabilitation he completed as shown in those reports.

III. The [December 1, 2006] Panel's decision to bypass making Petitioner undergo an in[-]depth evaluation at N.S.P. and they bypassed having Petitioner undergo an updated A.D.T.C. type evaluation should be reversed on account of there was no current A.D.T.C. type evaluation to reflect Petitioner's current rehabilitation for the [December 1, 2006] Panel to use.

IV. The [December 1, 2006] Panel's decision to stop Petitioner's oral presentation should be reversed considering that Petitioner had exculpatory evidence to present that would have shown he had a clear insight into the cause of his criminal behavior.

Our review of the entire record, including the transcript of the proceeding before the two-member panel, convinces us that the arguments lacks sufficient merit to warrant more than the brief comments that follow. R. 2:11-3(e)(1)(E). The Board's factual findings are supported by substantial credible evidence in the record. R. 2:11-3(e)(1)(D); see New Jersey State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988). The Board applied the legal standard that governs Planker's release on parole, which is whether the preponderance of the evidence indicates that there is "a substantial likelihood that the inmate will commit a crime under the laws of the State if released on parole . . . ." N.J.S.A. 30:4-123.53(a). See Kosmin v. New Jersey State Parole Bd., 363 N.J. Super. 28, 41 n.2 (App. Div. 2003). And, the FET set by the Board is within the presumptive range the Board has set by regulation. N.J.A.C. § 10A:71-3.21(a), (c). There is no basis for this court to conclude that the Board's decision is arbitrary and capricious. Cestari, supra, 224 N.J. Super. at 547.

Planker's claims of bias, disregard of favorable evidence, failure to secure relevant evidence, and denial of an opportunity to make a full oral presentation at the hearing are not supported by the record. Planker was given great latitude in presenting his case to the two-member panel, and none of the reports that he contends the Board should have obtained were recent reports likely to be probative of his present risk of recidivism. Planker was evaluated by David Gomberg, Ph.D., on October 10, 2006, only two months prior to this hearing, and the Board considered the favorable risk assessment he reported. The Board concluded, however, that the other evidence referenced in its decision and supported by the record warranted a denial of parole at this time.



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