On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Collester and C.L. Miniman.
David Klingebiel appealed from the final administrative determination of the Parole Board entered on May 6, 2005, denying parole and imposing a 180-month (15-year) future eligibility term (FET).*fn1 Appellant argued that "the Board has ignored and undervalued substantial evidence and relied on the same erroneous justifications to deny parole that it employed in State v. Trantino,"*fn2 "the arbitrary imposition of [the 15-year FET] is a denial of due process in violation of New Jersey and United States constitutions," and if parole is denied, appellant should receive annual reviews of his parole status. Appellant is serving a life sentence for murder,*fn3 and was previously denied parole by final administrative determinations in December 1994 and June 2001.
After noting that the three-member Panel and Board clearly understood this was a Title 2C case and responding to appellant's challenges to the determinations and reasoning of the two-member and three-member Panels, the full Board's 2005 final administrative determination concluded that:
The full Board has determined that the Adult Panel pursuant to N.J.A.C. 10A:71-3.18(f) sufficiently documented the reasons for denial of parole, that pursuant to N.J.A.C. 10A:71-3.11 the Adult Panel considered and based its decision on the aggregate of all factors; and that the three (3) member Panel has documented the particular and specific reasons for the establishment and imposition [of] a future eligibility term outside the administrative guidelines.
The full Board found the Adult and three (3) member Panels appropriately considered your client's prior criminal record and noted that his prior opportunity on probation has failed to deter his criminal behavior. The Adult and three (3) member Panels also noted his insufficient problem resolution, specifically the lack of insight into his criminal behavior and minimizing his conduct as demonstrated by his Panel interview, documentation in the case file and confidential material and professional reports. Finally, the Adult and three (3) member Panels considered the lack of an adequate parole plan to assist him in his successful reintegration back into the community.
The full Board additionally determined the Adult and three (3) member Panels appropriately considered in mitigation that your client is infraction free, his participation in institutional programs and participation in programs specific to behavior. In addition his attempt made to enroll and participate in programs but not being admitted and minimum custody status being achieved and maintained were also considered.
Based on a consideration of the facts cited above, the full Board has determined that the Adult Panel has documented, by a preponderance of evidence, that there is a substantial likelihood that your client would commit a crime if released on parole at this time and the three (3) member Panel has documented pursuant to N.J.A.C. 10A:71-3.21(d) that a future eligibility term established pursuant to N.J.A.C. 10A:71-3.21(a) and (c) is clearly inappropriate due to the lack of satisfactory progress in reducing the likelihood of future criminal behavior.
On January 31, 2007, we remanded the matter for reconsideration of the final administrative decision. We explained:
The murder occurred on June 28, 1980 and defendant was sentenced to life imprisonment on January 9, 1981. As a result, this case is governed by the parole law applicable to offenses which occurred between the effective date of the Code of Criminal Justice, on September 1, 1979, and the date on which the sentencing provision with respect to the crime of murder was amended, effective September 6, 1982. See Williams v. N.J. State Parole Bd., 336 N.J. Super. 1, 7 (App. Div.), certif. denied, 165 N.J. 523 (2000); see also Trantino v. N.J. State Parole Board, 166 N.J. 113, 197, modified, 167 N.J. 619 (2001). By virtue of N.J.S.A. 2C:11-3 in effect at the time of defendant's offense, a judge could impose a sentence for the crime of murder of 10 to 30 years, with up to 50 percent thereof to be served before parole eligibility, or 30 years with 15 years to be served before parole eligibility. See N.J.S.A. 2C:11-3 (L. 1979, c. 178, § 21). Alternatively, the trial court had discretion to impose an extended life sentence under N.J.S.A. 2C:43-7, with or without a 25-year period of parole ineligibility. See State v. Maguire, 84 N.J. 508, 519-26 (1980); see also State v. Pennington, 154 N.J. 344, 360 (1998) (making clear that imposition of the 25-year period of parole ineligibility on a discretionary extended term of life imprisonment was not mandatory).
This defendant received a sentence of life imprisonment without a parole ineligibility term. Accordingly, under the Parole Act, as it then provided, appellant became "primarily eligible for parole after having served . . . 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." N.J.S.A. 30:4-123.51(b). See L. 1979, c. 441, § 7. The Parole Act of 1979 also provided for "presumptive parole." See N.J.S.A. 30:4-123.53(a); In re Application of Trantino, 89 N.J. 347, 355-56 (1982); N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988). Furthermore, the Act, as it relates to appellant serving a Title 2C sentence imposed at the time it was, "place[d] the burden on the State '. . . to prove that the prisoner is a recidivist and should not be released.'" Ibid. (quoting N.J. Parole Bd. v. Byrne, 93 N.J. 192, 205 (1983)).
Thus, appellant was entitled to "be released on parole at the time of parole eligibility, unless information supplied in [the report prepared prior to the parole ineligibility date as required by N.J.S.A. 30:4-123.54] indicate[d] 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 ...