December 8, 2008
PETER J. HALAS, APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
On appeal from New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 18, 2008
Before Judges Graves and Grall.
Peter J. Halas appeals from a denial of parole. He is currently incarcerated and serving a seven-year sentence for second-degree official misconduct, N.J.S.A. 2C:30-2, which was imposed on July 28, 2006. He has no prior convictions or arrests, and this conviction is based on his guilty plea. His initial parole eligibility date was March 4, 2008. On October 30, 2008, a two-member panel of the Board approved Halas's release effective January 12, 2009 and set conditions for parole.*fn1
At the time of the crime Halas was a history teacher and basketball coach in a public high school. The basis for the charge of official misconduct was his sexual relationship with a fifteen-year-old student, which commenced in April 2005 and continued until his arrest in July 2005. As a consequence of his conviction, Halas has forfeited his teaching certificate.
During the period between Halas's arrest and sentencing, he underwent a psychological evaluation and participated in counseling. On August 11, 2005, Dr. Phillip H. Witt evaluated Halas's psychological condition in order to assess his risk of recidivism and propose a treatment plan. Dr. Witt concluded that Halas posed a low risk "well within the limits of risk appropriate for outpatient management." In reaching that conclusion, Dr. Witt utilized psychological assessment instruments including the Registrant Risk Assessment Scale (RRAS), which is employed to evaluate the risk posed by sex offenders for purposes of community notification, and the Sex Offender Need Assessment Rating (SONAR), which is an instrument developed "to assess dynamic, changeable risk factors."
Halas's score on the RRAS was "consistent with that of individuals found in a recent research study to have received non-custodial sentences." His score on the SONAR placed him in the "low risk range," which is "found roughly nine times as frequently among non-recidivists as among recidivists."
Based on the clinical evaluation and testing, Dr. Witt recommended a treatment program and referred Halas to Dr. Martin I. Krupnick for psychotherapy. Krupnick treated Halas between August 19, 2005 and July 18, 2006, while he was released on bail pending conviction and sentencing.
According to Krupnick, Halas's goal was to "address the issues that led to his inappropriate behavior so that he [would] not repeat his actions." Over eleven months, Halas received "relapse prevention training" designed to increase his awareness of the internal (emotional) and external (situational) risk factors that led to his behavior; did "victim empathy" exercises designed to raise his awareness of potential negative emotional consequences of his actions for the victim; and accepted individual psychotherapy to focus on broader personality issues that may have precipitated his offense. In Dr. Krupnick's opinion, Halas "show[ed] a great deal of insight and ha[d] constructively used the treatment time."
Dr. Krupnick explained:
[Halas] appears to have been guilt ridden at the time of his arrest and continues to show many signs of remorse and on-going guilt. He clearly understands the impact that his behavior may have had on [his student], and while very concerned for her current and future mental health, he also understands the need for no contact with the victim.
[Halas's] treatment has included gaining an understanding of the thoughts, feelings and actions that led to his behaviors, thus helping to structure his unique relapse prevention strategy. He has been fully cooperative and open in addressing the many personal issues. He has reported that the treatment process has helped him to become more open with others and to seek assistance when needed. This is an important step in the development of his relapse prevention goal.
[Halas] outlined his initial goals during the first session. These goals include 1) "not reoffend; 2) learn the responsibility; 3) learn relapse prevention strategies; and 4) understand the risk factors." He has worked diligently to achieve these goals, and it is clear that he has always maintained them as his primary focus. [Halas's] initial guilt as evidenced by his openness during the criminal investigation has continued in the form of a strong motivator for him to work in treatment. He has proven to be one of the hardest working patients that I have provided treatment for.
In my professional opinion, Peter Halas continues to pose a very low risk for reoffense at this time. He has actively participated in treatment and has taken advantage of it. He has shown a willingness to be open and forthright in treatment and has readily practiced the new skills that he has acquired. He is an excellent candidate for continued outpatient treatment, which will focus on reinforcing the gains that he has made.
While incarcerated, Halas completed a financial life skills program, was participating in S.T.A.R.S. and had joined a "Leadership" class offered by Pastor Christopher and Sharon N. Ryan, who wrote a letter praising his contribution to their program and indicating their willingness to have him as a member of their aftercare mentoring program if he were released on parole. At the time of his initial parole hearing, Halas had no institutional infractions and had maintained minimum custody status. He was on the waiting list for admission to "Focus on the Victim" and "Behavioral Modification," which were offered in the prison. His attendance at work and ability to work with others were rated "excellent," and reports from his housing unit and work assignment indicated that he needed only "minimal" supervision.
The file presented to the two-member panel of the Board that first considered his parole included the reports from Drs. Witt and Krupnick. It also contained numerous letters of support from members of the community, including the victim of this crime, that describe a course of conduct and behavior throughout Halas's life from which his crime was a marked deviation.
Halas appeared before the two-member panel of the Parole Board on November 15, 2007. The members questioned him about his misconduct, his participation in one-on-one counseling and programs in prison, the reasons for his behavior, how he thought his criminal conduct had affected the victim and how he knew he would not repeat the criminal behavior.
Although Halas's responses were interrupted by the members several times, he described his conduct as "inappropriate" and "horrendous" and said there was "no justifiable answer" for what he did. He admitted that he "lost awareness of what was right and wrong" and explained that he had one-on-one counseling with Dr. Krupnick prior to his incarceration, with whom he "had a very good rapport." He said that during his therapy with Dr. Krupnick, he "accomplish[ed] a lot in terms of victim empathy and relapse prevention and risk awareness" and that he "look[ed] forward to going back and visiting with" Dr. Krupnick. He also noted that he had a strong network of "faith-based people, social workers, chaplains and mentors within the Christian Community to try and keep him on the straight and narrow."
Halas did not know where his former student was and had not had any contact with her since his arrest. In responding to the panel's question about the impact of his conduct on the fifteen-year-old, Halas said:
That's something that I try and - and pray on every day. I don't know. . . . I - like I said, I pray for her health and safety and - and for not (inaudible).
There's nothing that can justify what I did and I understand that I put her and her family, as well as my family under a lot of stress that was unfair to everybody involved.
His response to the question about how he knew something like this would not happen again was as follows:
My actions are . . . incomprehensible to me and, through my therapy with Dr. Krupnick, I've learned how to be aware of myself, aware of my risky situations and be aware of situations where I may lose control with what is right and wrong. Through my (inaudible) or (inaudible).
And through my Christian support group I feel as though I'll be able to - to stay on - on the straight and narrow.
One member asked Halas why he had not had one-on-one counseling in prison. He answered, "I didn't - I don't know. I didn't ask for it and it wasn't offered and that's - that's an oversight on my part."
The panel informed Halas that his parole was denied and he would become eligible again in twelve months. The panel explained:
We want you to take some programs. You were in Bay State. Where you are now, there are more programs for the type of crime you've committed.
And you - you've got to find out for your own benefit why you did this and how it - how you can prevent it from happening again.
The panel's findings were further explained in its Notice of Decision. The panel checked the form to indicate its determination that "there is a reasonable expectation that [Halas] will violate conditions of parole if released on parole." Although the panel acknowledged that Halas had no infractions, participated in institutional programs and attempted to enroll in but was not admitted to additional programs, the panel found Halas had "insufficient problem resolution" noting his "lack of insight into criminal behavior" and "minimiz[ation] [of his] conduct." The panel noted that Halas "need[ed] more counseling to assist him in understanding his behavior."
Halas filed an administrative appeal. The Parole Board accepted additional information submitted on his behalf before considering his appeal. Halas had been selected for positions in the prison's teaching department and the "chaplain mentoring program." He asked the Board to make participation in one-onone counseling with Dr. Krupnick a condition of his parole. His attorney advised that "Mid-State [Prison], upon intake evaluation, opined that [Halas] was not in need of such counseling because he had insight into his behavior and its victim, such one-on-one counseling in not available through the Department of Corrections." He further advised by letter of December 4, 2007 that Halas "had the appropriate insight and awareness of the impact upon the victim and the reasons for his behavior" and "that one-on-one counseling was not required."
In affirming the panel's decision, the Board summarized the arguments presented and the evidence the panel considered. Noting that the panel may consider statements made by an inmate during the pre-parole interview, N.J.A.C. 10A:71-3.11(b), the Board explained its decision to affirm the panel's decision as follows:
Based on Mr. Halas'[s] response to questions posed by the Panel at the time of the hearing, the Panel determined that he lacks insight into his criminal behavior and he minimizes his conduct. Although Mr. Halas has participated in some institutional programs, the Panel noted that he needs more counseling to assist in understanding his behavior.
In regard to your claim that the Panel's decision is "arbitrary and capricious," an arbitrary and capricious action is one which is willful and unreasoning without consideration and is in disregard of circumstances. Upon review, the full Board found that the Panel based its decision on sufficient credible evidence in the record, thus there is no evidence in support of your claim.
Based upon consideration of the facts cited above, the full Board has determined that the Adult Panel has considered the aggregate of information pursuant to N.J.A.C. 10A:71-3.11 and fully documented and supported its decision for denying parole pursuant to N.J.A.C. 10A:71-3.18(f). Also, the full Board found that the Adult Panel's decision is based upon a determination that a preponderance of the evidence indicates that there is a reasonable expectation that [Halas] would violate the conditions of parole if released on parole at this time.
The following standard governs the Board's decision in this case:
An adult inmate shall be released on parole at the time of parole eligibility, unless information supplied[,]. . . developed or produced at a hearing . . . 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 . . . if released on parole at that time. [N.J.S.A. 30:4-123.53a.]
Like the question of the likelihood of recidivism, the question whether the inmate is likely to violate the conditions of parole if released is "predictive of future conduct" but "essentially factual in nature." N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988). For that reason, this court "'must determine whether the factual finding could reasonably have been reached on sufficient credible evidence in the whole record.'" Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24 (1998) (quoting Cestari, supra, 224 N.J. Super. at 547).
Our standard of review compels us to consider all of the evidence that was before the Board, because the Board may not selectively and arbitrarily rely "on only those portions of the record that could possibly support [its] conclusion." Trantino v. N.J. State Parole Bd., 166 N.J. 113, 189 (2001). The Board should "explain adequately its reasons for rejecting" favorable evidence such as "the opinions of psychologists" and observations made by correctional officials. Id. at 188; see Cestari, supra, 224 N.J. Super. at 551. And, where the Board relies on the inmate's failure to receive counseling in prison, evidence about the inmate's opportunity and willingness to receive the therapy in prison is relevant. See Trantino, supra, 166 N.J. at 181.
In this case, the Board's denial of parole is based solely on the Board's conclusion that Halas minimized and lacked insight about his criminal behavior and required additional counseling to address those deficiencies. Giving all deference due based on the two-member panel's opportunity to observe Halas during the interview, "reaction[s] of members of the Parole Board [are] not an appropriate substitute for consideration of all the evidence pertinent to whether a prospective parolee is likely to commit another crime" and are an equally inadequate substitute for consideration of the evidence relevant to "reasonably expected" violations of parole conditions. Cestari, supra, 224 N.J. Super. at 151.
Halas sought counseling within one month of his arrest, participated in that counseling for eleven months and made progress in addressing factors that led to his first and only violation of the law, which was a very serious violation of the criminal law. The report of his therapist, which is quoted above, addresses his progress. Halas had no difficulty in conforming his conduct with the law while on bail or with prison regulations while incarcerated. The prison's hearing officer recommended release.
The only evidence in the record that could support the Board members' assessment about Halas's insight and minimization were the statements Halas made during the parole hearing. But only a highly selective reading of his responses would support the impression formed by the Board members.
Halas described his behavior as "inappropriate" and "horrendous" and said there was "no justifiable answer" for what he did. He admitted that the cause of his behavior was his "los[s of] awareness of what was right and wrong." He said he "pray[ed] for [his student's] health and safety" every day and professed his understanding of the "stress" he put on her and their families. He explained that he had "learned how to be aware of [himself], aware of [his] risky situations and . . . of situations where [he] may lose control with what is right and wrong." Viewed in context, Halas's remarks that he did not know what impact his conduct had on his student, his description of his conduct as "incomprehensible" to him and his comment that it was an "oversight" on his part not to request counseling while in prison, provide insufficient support for a determination of a "reasonable expectation" that Halas would violate the conditions of his parole. Moreover, there is no evidence that Halas could or would receive the counseling the Board deems necessary while he remains in prison.
Accordingly, we reverse the denial of parole and direct that Halas be released on parole forthwith subject to the conditions stated in the "Notice of Parole Release" dated October 30, 2008.