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Franklin v. New Jersey State Parole Board


November 18, 2008


On appeal from the New Jersey State Parole Board.

Per curiam.


Submitted: October 22, 2008

Before Judges Lihotz and Messano.

Appellant Baron K. Franklin is a forty-three-year old inmate in Rahway State Prison presently serving a cumulative sentence in excess of fifty-two years following convictions on various charges stemming from crimes committed in September 1981 along with an offense committed while incarcerated. Appellant appeals from a final decision of the State Parole Board (the Board), which affirmed a Board panel's decision to deny parole, for the third time, and to establish a twenty-seven-month future eligibility term (FET). We affirm.

The appellant's criminal history follows. After serving six years in prison as a result of a conviction for rape, armed robbery and breaking and entering while armed, appellant was paroled on March 17, 1981. On September 8, 1981, appellant broke into an apartment in Aberdeen by removing a screen from a window. The victim awoke and appellant choked him, tied him with his clothing, and took seventy-five dollars. On September 11, 1981, appellant entered a residence in Matawan by removing a screen from a window. He attempted to rape a fifteen-year-old victim after he bound, gagged, and threatened her life. The victim's screams awoke her parent who came to her aid as appellant attempted his escape. Appellant was apprehended by police.

Appellant was charged and convicted of burglary, robbery, aggravated assault, and criminal restraint regarding the Aberdeen incident, and tried and convicted of burglary, criminal restraint, terroristic threats, aggravated assault, and attempted aggravated sexual assault in the Matawan incident. Appellant was sentenced on both indictments to an aggregate term of forty-three years incarceration with a twenty-one-year period of parole ineligibility to run consecutive to the remaining parole violation term of his 1975 offense.

While awaiting transfer to State prison, appellant grabbed a corrections officer through his cell bars. He choked the guard and threatened to kill him unless he was released. Appellant and another inmate secured release from their cells but were ultimately subdued. As a result of this incident, appellant pled guilty to aggravated assault and was sentenced to a five-year custodial term with a mandatory minimum of two and one half years, concurrent to his existing sentence.

Appellant first became eligible for parole but was denied on December 15, 2003. Appellant's second appearance was on June 13, 2005. Again, parole was denied and a thirty-month FET was imposed. Appellant was next eligible for parole on March 31, 2007. On February 8, 2007, a Board hearing officer conducted defendant's initial hearing and referred the case to a two-member panel. N.J.A.C. 10A:71-3.15(b). On May 14, 2007, the two-member Board Panel conducted defendant's hearing, denied parole and set a twenty-seven-month FET. N.J.A.C. 10A:71-3.18(f).

In reaching its decision, the Panel cited the following factors: (1) appellant's prior parole opportunity was revoked following commission of a new offense; (2) incarceration had not deterred appellant's criminal behavior; (3) appellant showed insufficient ability to develop problem resolution skills, lacked insight into his criminal behavior and minimized his conduct, as demonstrated during the Panel interview, in the case file and confidential professional reports; and (4) appellant lacked an adequate parole plan to aid his successful reintegration into the community. See N.J.A.C. 10A:71-3.11(b). In an amended report, the Panel set forth its consideration of mitigating factors, which included appellant had a limited prior criminal record, had been infraction free since 1989, participated in institutional programs, received average to above average institutional conduct reports, and attempted to enroll in programs, to which he was not accepted.

Appellant appealed and the case was sent for a full Board review. By letter dated November 1, 2007, the Board addressed appellant's challenges to the Panel's decision and affirmed the denial of parole and the FET of twenty-seven months. The Board concluded "that a preponderance of the evidence indicates that there is a substantial likelihood that [appellant] would commit a crime if released on parole at this time."

Appellant presents for our review his challenge that the Board's determination is unsupported by the record and was arbitrary, capricious, and unreasonable. He contends the factors cited by the panel and affirmed by the full Board do not support the denial of parole.

The actions of the Parole Board are presumed valid and reasonable, In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994), as Parole Board decisions are considered "highly 'individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). Such decisions represent a "'discretionary assessment of a multiplicity of imponderables, entailing primarily what a man is and what he may become rather than simply what he has done.'" Greenholtz v. Nebraska Penal & Corr. Complex Inmates, 442 U.S. 1, 10, 99 S.Ct. 2100, 2105, 60 L.Ed. 2d 668, 677 (1979) (quoting Kadish, The Advocate and the Expert - Counsel in the Peno-Correctional Process, 45 Minn. L. Rev. 803, 813 (1961)). Consequently, "the Board 'has broad but not unlimited discretionary powers'" in reviewing an inmate's parole record and in rendering a release decision. Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971).

Our limited review of parole determinations evaluates whether the Parole Board acted arbitrarily or abused its discretion in rendering its decision. Ibid. We determine whether the agency's findings "could reasonably have been reached on sufficient credible evidence present in the record," Close v. Kordulak Bros., 44 N.J. 589, 599 (1965), and only set aside an agency's decision "'if there exists . . . a definite conviction that the determination below went so far wide of the mark that a mistake must have been made.'" N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.) (quoting 613 Corp. v. Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)), certif. denied, 111 N.J. 649 (1988).

Measured by these standards, we discern no basis to disturb the Board's decision denying parole and setting a FET of twenty-seven months. There is nothing in the record that suggests the Board's action was either arbitrary or unreasonable. In deciding whether defendant is likely to commit a crime if released on parole, N.J.S.A. 30:4-123.53(a), the Board reviewed the issues cited by the Panel. These included appellant's past parole violation and the fact that incarceration had not deterred his criminal behavior. Appellant's failure to accept responsibility for his actions, including the level of violence, supported the Board's conclusion. Specifically, appellant minimized his criminal behavior and continued to deny participation in the attempted sexual assault of the minor victim. Also appellant has engaged in only limited efforts to address his substance abuse problem, his past violent behavior and problem resolution. Finally, appellant's parole plan was found lacking in specificity as it failed to address his proposed residence, employment, and counseling programs to assure proper reintegration. These critical findings are well-supported by the record and the Board's decision affirming the panel determination of parole denial. Its imposition of the presumptive FET of twenty-seven months reflects the agency's expertise as applied to appellant's individual application for parole. See N.J.A.C. 10A:71-3.21(a)(1).

We additionally reject appellant's claimed due process violation resulting from the Board's consideration of the confidential professional reports, which support its conclusion. Certain types of records prepared and maintained by or in the custody of the Board are designated as confidential by N.J.A.C. 10A:71-2.1 (a). These include:

1. Reports which are evaluative, diagnostic or prognostic in nature, furnished with a legitimate expectation of confidentiality and which, if revealed to the inmate/parolee or others, could be detrimental to the inmate, adversely affect the inmate's rehabilitation or the future delivery of rehabilitative services, jeopardize the physical safety of individuals who signed the reports or were parties to the decisions, conclusions, or statements contained therein . . . .

"Due process is a flexible and dynamic concept. It calls for such procedural protections as the particular situation demands." Thompson v. N.J. Parole Bd., 210 N.J. Super. 107, 123 (App. Div. 1986) (citing N.J. Parole Bd. v. Byrne, 93 N.J. 192, 209 (1983)). However, the due process procedural protections attached to the parole process do not require disclosure of all information available to the Board. Ibid. In this matter, following our review of the entire record, including the designated confidential reports, we conclude the Board's reasons for nondisclosure are reasonable and supportable. Further, as evident in the Board's written determination, the report cannot be said to have played a substantial role in its final decision. Ibid.



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