December 5, 2008
RONALD ROBBINS, APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
On appeal from a Final Decision of the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 6, 2008
Before Judges Cuff and Baxter.
Ronald Robbins appeals from a February 22, 2007 decision of the State Parole Board (Board) that denied parole and established a one hundred fifty-six month future eligibility term (FET). We affirm.
On April 14, 1983, defendant was sentenced to a term of seventy-five years imprisonment after being found guilty by a jury of one count of second-degree aggravated assault, two counts of first-degree robbery, two counts of first-degree kidnapping, one count of second-degree possession of a weapon for an unlawful purpose and one count of first-degree aggravated sexual assault.*fn1 The jury found Robbins guilty of kidnapping two teenagers who were parked in a car, assaulting the male and locking him into the trunk of a stolen car, and threatening the female with a gun before sexually assaulting her.
On April 19, 1998, Robbins threw a bucket of scalding water, soup and Pine Sol through the bars of his cell, which severely burned a corrections officer. After being found guilty by a jury on two counts of aggravated assault, Robbins was sentenced on March 10, 2000, to a five-year term of imprisonment with a two-and-one-half year parole ineligibility term. The Judgment of Conviction (JOC) did not specify whether the sentence was to run consecutively or currently to the 1983 sentence that Robbins was already serving.
Robbins became eligible for parole for the first time on June 4, 2004. On July 24, 2004, after a hearing, a two-member Board panel voted to deny parole, and referred the matter to a three-member panel to establish an extended FET. That panel, after considering the full record, imposed a twenty-year FET. Both panels concluded that Robbins was likely to commit a new offense if released.
However, on November 29, 2005, we described Robbins's aggravated assault conviction as running consecutively to the 1983 sentence he was already serving. State v. Robbins, No. A-1038-04 (App. Div. November 29, 2005). Consequently, on March 9, 2006, the Board notified Robbins that because of the change in judgment, his parole eligibility had become subject to the new parole standards that became effective on August 19, 1997, which require the Board to deny parole upon proof of a reasonable expectation that the inmate will violate conditions of parole if released.*fn2
Therefore, because Robbins was serving a sentence for a crime committed after August 19, 1997, the Board's March 9, 2006 letter notified Robbins that on December 14, 2005, both panels had reconsidered his parole eligibility in light of the new parole standard. Specifically, both the two-and three-member panels issued amended decisions that applied the new standard, finding that there was a reasonable expectation that Robbins would violate conditions of parole if released.
In its amended December 14, 2005 decision, the two-member panel considered its earlier interview of Robbins, the pre-parole report, Robbins's entire case file and a confidential psychological report. The panel based its decision to deny parole on the following factors: an "extensive" and "repetitive" prior criminal record; his incarceration for a "multi-crime conviction"; the failure of prior opportunities on probation and parole to deter criminal behavior; a history of probation and parole violations; institutional infractions that were "numerous, persistent, [and] serious in nature" that resulted in "loss of commutation time [and] confinement in detention"; "insufficient problem resolution" including "lack of insight into criminal behavior," and denial of any criminal conduct; "commission of a crime while incarcerated"; and completion of only "minimal programming" to address substance abuse and a "serious criminal history."
The panel specifically commented that Robbins's "institutional adjustment is seriously horrible[;] [he] lost 4,940 days [of] commutation time." The panel identified a lone mitigating factor, Robbins's participation in institutional programs had resulted in the restoration of 898 of the 4,940 days lost commutation time. After voting to deny Robbins parole, the two-member panel referred his matter to a three-member panel to establish a FET in excess of the administrative guidelines.*fn3
The three-member panel, recognizing that a FET was no longer reduced by commutation credits, decided to impose a thirteen-year eligibility term, which, in light of the change in calculation methods, was equivalent to the former twenty-year FET.
In reaching its decision, the three-member panel identified the same factors on which the two-member panel had relied, and also pointed to: the violent and predatory nature of Robbins's 1981 and 1998 crimes, both of which involved a substantial disregard of the rights of others; Robbins's lack of remorse; and the conclusion of the examining psychologist that "[o]verall, [Robbins's] parole/release risk appears to be VERY POOR."
We elaborate on a few of the three-member panel's findings. The Board pointed to 108 disciplinary charges Robbins incurred during his term of confinement. Of those 108 charges, twenty-nine were asterisk offenses which, according to the panel, "represent[ed] a pattern of continuous and extremely maladaptive behavior while incarcerated." The asterisk infractions included ten assaults, two assaults with a weapon, two for fighting, two for threatening another with bodily harm, two for possession of a prohibited substance, two for encouraging a riot, five for conduct which disrupts the orderly running of an institution, two attempted bribes, and two attempts to "commit a serious infraction."
Among Robbins's seventy-nine "less serious institutional disciplinary infractions," the Board pointed to indecent exposure, damaging State property, theft, refusal to accept a work or housing unit assignment, lying to a staff member, twelve instances of failure to comply with a written rule of a correctional facility and thirty-seven violations for refusing to obey an order of a staff member.
The most compelling portion of the three-member panel's December 14, 2005 decision was its description of the panel's interview of Robbins.*fn4 The Board wrote:
You lack insight into your criminal behavior.
The statements that you made in the course of your parole hearing [demonstrate that you do not] understand the concept of rehabilitative insight, as it applies to your criminal behavior and your institutional behavior. Your comments and explanations reveal an individual who remains wholly indifferent toward understanding one's behavior.
With nary a fundamental personality characteristic that would enable you to act appropriately and law-abiding in society, you clearly remain a danger to public safety. . . . You have little self-awareness. Measured against your personal history, the institutional programming that you have participated in is severely limited. Your responses to the Board Panel's questions make it abundantly clear that you are no closer today to understanding your deep-seeded personality issues that led to your criminal [and] maladaptive behavior than you were at the time you started committing acts of delinquency.
Your delinquent, criminal and institutional disciplinary histories implicate you as an individual who resorts to violence at whim, and who cannot follow directions or orders.
During your parole hearing, you dismissed your behavior with oblivion [sic], and affectlessness.
You denied committing your crimes . . . .
You have minimized your conduct. . . .
During your parole hearing . . . [y]ou asked what would have been expected of a young man. . . . Your statements portray an individual who does not understand the concept of responsibility.
At the end of its thirteen-page December 14, 2005 decision, the three-member Board panel concluded that setting the term of Robbins's FET at less than thirteen years "would be wholly inconsistent with the conclusion that, after twenty-one years of incarceration, there continues to be a need to take significant measures to address the concerns that strongly indicate that you have not satisfactorily reduced the likelihood of future criminal behavior."
On May 15, 2006, Robbins appealed the panels' decisions to the full Board.*fn5 On February 22, 2007, the full Board considered Robbins's administrative appeal, along with his letters of September 30 and November 16, 2006, and affirmed the panels' decisions denying parole and establishing a thirteen-year FET. Robbins appealed.
On appeal, Robbins maintains: 1) the Board's consideration of his case under the "new standard" violated his right to be free from ex post facto application of the law; 2) the Board failed to monitor his progress via annual reviews, as required by N.J.S.A. 30:4-123.52(c); 3) a former Board member was biased against Robbins and should have been recused; 4) the Board panel erroneously failed to consider two favorable psychological evaluations dated August 16, 2004, and May 6, 2005; 5) the panel impermissibly relied on the April 28, 2004 confidential psychological evaluation; and 6) the Board chose to rely on the psychological evaluation to retaliate against Robbins for having sought a remand.
Our scope of review is a narrow one, and we review Robbins's contentions in accordance with that standard. We must affirm unless the Board's decision was unreasonable, unsupported by credible evidence in the record or contrary to law. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 172 (2001) (Trantino VI). We have carefully reviewed Robbins's contentions in light of our standard of review. We are satisfied that the record amply supports each of the Board's factual findings. The record as a whole supports the conclusion that Robbins persistently and blatantly defies both institutional and societal rules that govern his conduct.
We are satisfied that both panels correctly determined that a preponderance of the evidence in the record demonstrates that "there is a reasonable expectation that [Robbins] will violate the conditions of parole . . . if released on parole at [this] time." N.J.S.A. 30:4-123.53(a). We are also satisfied that the same factors justify the Board's decision to increase Robbins's FET to thirteen years. See N.J.A.C. 10A:71-3.21(d) (specifying that in determining the length of the FET, the three-member panel shall consider the same factors that were utilized in deciding whether the inmate is suitable for parole).
We now turn to the additional claims Robbins advances on appeal. We reject his argument that the 1997 changes to the parole statute violate the ex post facto clause. The procedural modifications to the parole statute do not constitute a substantive change in parole release criteria. Trantino v. N.J. State Parole Bd., 331 N.J. Super. 577, 610-11 (App. Div.), 165 N.J. 522 (2000), aff'd in part, modified in part and remanded, 166 N.J. 113 (2001), modified, 167 N.J. 619 (2001). Consequently, his ex post facto argument is meritless.
Robbins next maintains that the Board failed to monitor his progress via annual reviews, as required by N.J.S.A. 30:4-123.52(c). We agree with the Board's argument that because this issue was not presented before the Board, it should not be considered on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
As to Robbins's claim that Board member Joseph Constance "took on an accusatory and badgering tone" that demonstrates a lack of objectivity, we need not decide this issue because the record reflects that by the time the Board issued its amended notice of decision on December 14, 2005, Constance's tenure as a Board member had already expired. Therefore, he did not participate in the decision from which Robbins now appeals.
Robbins's claim that the Board panel failed to consider the psychological evaluations of August 16, 2004, and May 6, 2005, is similarly lacking in merit. We agree with the Board that the panel could not have reviewed these evaluations at the time of the original release hearing, because the release hearing was held on July 22, 2004, and the evaluations were completed after that date. Moreover, were we to consider these reports, we agree with the Board that neither report supports Robbins's claim that the Board's decision was erroneous. These documents merely demonstrate that Robbins requested mental health counseling based on the Board's recommendation; however, the reports also contain a notation that Robbins told an examiner he did not believe he needed psychological or mental health counseling--a remark that supports the Board's conclusion that Robbins lacks insight into his criminal propensities.
We likewise reject Robbins's argument that the panel was not entitled to rely upon the April 28, 2004 psychological evaluation. He cites no support for that proposition. Indeed, N.J.A.C. 10A:71-3.11(b)(13) expressly authorizes the Board to consider such reports.
Finally, Robbins's assertion that the psychological evaluation was used against him in retaliation for having sought review from this court lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).