January 8, 2010
TYRONE BARNES, APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
On appeal from a Final Agency Decision of the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 16, 2009
Before Judges Axelrad and Espinosa.
Appellant Tyrone Barnes (Barnes) appeals from a final agency decision of the New Jersey State Parole Board that denied his third application for parole and imposed a twenty-four month future eligibility term. We affirm.
Following a jury trial, Barnes was convicted in March 1995 of four counts of robbery, N.J.S.A. 2C:15-1; two counts of unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); two counts of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and one count each of burglary, N.J.S.A. 2C:18-2; criminal restraint, N.J.S.A. 2C:13-2; receiving stolen property, N.J.S.A. 2C:20-7; aggravated assault, N.J.S.A. 2C:12-1(b)(4), and obstructing the administration of the law, N.J.S.A. 2C:29-1. These convictions arose from armed robberies committed during the period from January 16 to 20, 1993, while Barnes was free on bail following an arrest for receiving stolen property. He was sentenced for these convictions to an aggregate term of thirty-years imprisonment with a minimum period of parole ineligibility of ten years. Thereafter, he entered guilty pleas to the receiving stolen property charge, N.J.S.A. 2C:20-7 and an additional robbery and was sentenced to concurrent terms of four years and ten years, respectively.
After serving fifteen years of his sentence, Barnes became eligible for parole for the third time. During the course of his incarceration, Barnes was convicted of twenty-six institutional disciplinary infractions. Eleven of these were "asterisk offenses," which are considered the most serious and result in the most severe sanctions. N.J.A.C. 10A:4-4.1; N.J.A.C. 10A:4-5.1. During the period between his second parole hearing in October 2005 and this parole hearing, appellant was convicted of two infractions: an asterisk offense, "counterfeit/forge an official document," in January 2006, and an infraction for "refusing to obey" in January 2007. The refusal to obey charge was pending on appeal at the time of this parole hearing, was later reversed by this court in July 2008 and was subsequently dismissed.
Pursuant to N.J.A.C. 10A:71-3.15(b), this parole determination was referred to a Parole Board panel (the Panel). The Panel determined that there was a substantial likelihood that Barnes would commit a new crime if released on parole at the time of its January 14, 2008 decision.*fn1 The Panel denied parole and established a twenty-four month future eligibility term (FET). The Panel identified the following mitigating factors: no prior criminal record or minimal criminal record; participation in programs specific to behavior; participation in institutional programs; average to above average institutional reports; attempt made to enroll and participate in programs but was not admitted and commutation time restored. Based upon the panel interview of Barnes and the documentation in the case file, the Panel identified the following reasons for its denial of parole: nature of criminal record increasingly more serious; presently incarcerated for multi-crime conviction; institutional infractions as well as institutional infractions since the last panel hearing. The Panel also cited insufficient problem resolution, specifically, a lack of insight into criminal behavior and minimization of conduct. The Panel suggested that Barnes participate in institutional programs geared toward criminal behavior and one to one counseling and that he "MUST REMAIN INFRACTION FREE."
Barnes appealed the Panel's decision to the full Parole Board (the Board), which upheld the decision to deny parole and establish a twenty-four month FET in May 2008. Barnes now appeals from that final decision and raises the following issues, many of which were raised and rejected below:
THE PAROLE BOARD'S HEAVY RELIANCE ON A MINOR INFRACTION CAN NOT BE DEEMED SUBSTANTIAL ENOUGH EVIDENCE TO DENY PAROLE. THUS ITS DECISION IS CLEARLY RETALI[A]TORY AND VIOLATIVE OF APPELLANT'S EIGHTH AND FOURTEENTH AMENDMENT CONSTITUTIONAL RIGHTS BARNES MUST BE RELEASED ON PAROLE FORTHWITH.
THE PAROLE BOARD LISTING OF A MERE THREE PROGRAMS OUT OF THIRTY PROGRAMS BARNES COMPLETED GAVE AN UNFAIR BALANCE OF THE RECORD AS A WHOLE DURING THE BOARD PANEL'S REVIEW.
THE PAROLE BOARD'S EXCESSIVE DELAY IN AFFORDING BARNES A HEARING OVER SIX-MONTHS PAST HIS PAROLE ELIGIBILITY DATE IS UNEXCUSABLE AND VIOLATIVE OF ITS OWN POLICY AND PROCEDURES AND NEW JERSEY STATUTE ITS SANCTION SHOULD WARRANT BARNES RELEASE ON PAROLE.
We have considered these contentions in light of the record and are satisfied that none of them is of sufficient merit to warrant extended discussion in a written decision. R. 2:11-3(e)(1)(D) and (E). We add, however, only the following comments.
There is "no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence," Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24 (1998) (Trantino IV) (quoting Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2104, 60 L.Ed. 2d 668, 675 (1979)). See also State Parole Bd. v. Byrne, 93 N.J. 192, 208 (1983); In re Trantino Parole Application, 89 N.J. 347, 363 n.5 (1982). The "protected expectation of parole in inmates who are eligible for parole" is created by statute. Trantino IV, supra, 154 N.J. at 25 (quoting Byrne, supra, 93 N.J. at 206). Accordingly, the standard applicable to the parole determination here is contained in N.J.S.A. 30:4-123.53(a).
In reviewing the Board's denial of parole, we are required to examine:
(1) whether the agency's action violates express or implied legislative policy, i.e., did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [Trantino IV, supra, 154 N.J. at 24; McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 560 (2002).]
Appellant's challenge to the Board's decision focuses on the second of these factors. The thrust of his argument is that the Board acted arbitrarily in relying upon an infraction that was subsequently reversed on appeal by this court and dismissed and in failing to give appropriate weight to other facts in evidence.
Our review of the Board's decision is limited. The Parole Board's decisions are 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)). The standard of review applicable to other administrative agency decisions applies to our review. Trantino IV, supra, 154 N.J. at 24-25; In re Hawley Parole Application, 98 N.J. 108, 112 (1984). Parole Board decisions should not be reversed by a court unless found to be arbitrary or an abuse of discretion. Trantino IV, supra, 154 N.J. at 25; Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971); State v. Lavelle, 54 N.J. 315, 322 (1969); Pazden v. N.J. State Parole Bd., 374 N.J. Super. 356, 366 (2005).
In applying these principles to the record here, we conclude that the Board did not abuse its discretion in denying appellant parole. Although one of the two disciplinary infractions was reversed after the Board's decision, the evidence before the Board included another, more serious "asterisk" offense that had been committed since the last hearing as well as a substantial history of infractions. Therefore, the Board's reliance upon the aggravating factor "institutional infractions as well as institutional infractions since the last panel hearing" remained supported by the record. Appellant also complains that the case summary report done by the initial parole hearing officer erroneously listed only three program completions when, in fact, he had completed approximately thirty programs during his incarceration. A review of the record shows, however, that the evidence of appellant's program participation presented to the Board was not so limited. In fact, the Board identified several mitigating factors relevant to appellant's program participation in its decision: "participation in programs specific to behavior; participation in institutional programs; [and] attempt made to enroll and participate in programs but was not admitted." Therefore, despite appellant's claims that the Board's decision-making process was flawed, the decision had appropriate support in the record and was not arbitrary or capricious.