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Miller v. New Jersey State Parole Board

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 20, 2010

FRANK M. MILLER, JR., APPELLANT,
v.
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.

On appeal from a Final Agency Decision of the New Jersey State Parole Board.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 6, 2010

Before Judges Payne and Waugh.

Frank M. Miller appeals from his 2007 yearly parole review, after which he was awarded a one-month reduction in a thirty-year future eligibility term (FET), imposed in 1998. On appeal, he raises the following issues for our consideration:

POINT I

I REQUEST TO SUPPLEMENT THE RECORD PER R. 2:5-5(b) AS TO AN ISSUE OF THE RESPONDENTS FAILURE TO DISCLOSE THAT THE MIX UP OF INFORMATION AT MY SECOND DENIAL OF PAROLE AND SUBSEQUENT ANNUAL REVIEW HEARINGS REQUIRES A RE-EVALUATION OF MY SECOND FET. (Not Raised Below.)

POINT II

THE PAROLE BOARD VIOLATED MY RIGHTS WHEN THEY ERRED USING INACCURATE INFORMATION AT MY SECOND DENIAL OF PAROLE AND SUBSEQUENT ANNUAL REVIEW.

POINT III

THE PAROLE BOARD FAILED TO CONSIDER ALL OF THE MITIGATING FACTORS, AND I HAVE INSIGHT INTO MY CRIMINAL BEHAVIOR. THIS FAILURE TO REVIEW MY ENTIRE RECORD, CONSIDER ALL MITIGATING EVIDENCE, MIS-CONSTRUING MY INTERPRETATIONS OF EVENTS HAS DENIED MY "DUE PROCESS" & "EQUAL PROTECTION" RIGHTS, BY DENYING ME A FAIR, UN-ARBITRARY, AND NON-CAPRICIOUS DECISION.

POINT IV

THE USE OF CONFIDENTIAL INFORMATION FOR MY SECOND FET, AND SUBSEQUENT ANNUAL REVIEW HEARINGS IS A VIOLATION OF MY SIXTH AMENDMENT RIGHT TO CONFRONT MY ACCUSER. POINT V

THE PAROLE BOARD VIOLATED MY SIXTH AMENDMENT RIGHT TO COUNSEL WHEN I WAS NOT GRANTED COUNSEL AT MY SECOND FET, AND SUBSEQUENT ANNUAL REVIEWS SO THAT I MAY EVALUATE THE "CONFIDENTIAL MATERIAL" USED.

POINT VI

THE PANEL FAILED TO ABIDE BY THE 1979 PAROLE ACT, SPECIFICALLY BY NOT DEMONSTRATING A PREPONDERANCE OF CREDIBLE EVIDENCE IN THE RECORD THAT I WOULD COMMIT A CRIME WHILE ON PAROLE TO SUPPORT A SECOND FET, AND SUBSEQUENT ANNUAL REVIEW HEARINGS. (Not Raised Below.)

I.

The record discloses that Miller was born in 1940. In his youth, defendant pinched the breasts of girls in his school, made sexually explicit comments to them, and stole female clothes when they were hung outside to dry. In August 1968, Miller was arrested for raping a thirteen-year-old girl while wearing a woman's stocking over his head. He was convicted of carnal abuse and served three and one-half years of a twelve- to fifteen-year sentence prior to being paroled in September 1972. In July 1973, Miller was arrested for fornication and contributing to the delinquency of a minor, the sixteen-year-old daughter of a co-worker. Defendant received a two- to three-year sentence for the crime, to be run consecutive to a sentence received for violating parole. While on parole from the first offense and on bail from the second, on August 13, 1973, Miller murdered seventeen-year-old Deborah Margolin by severing her wind pipe and jugular vein and mutilating her pelvic area, vagina and right breast. Defendant threw the victim's body off a bridge, where she was found, nude, floating in a pool of water. Defendant was sentenced to life in prison for first-degree murder for this crime.

Miller became eligible for parole in 1991, but was given a twelve-year FET. He became eligible for parole again in 1998, but was then given a thirty-year FET. On appeal, we affirmed the Parole Board's denial of parole and establishment of the thirty-year FET in an unpublished opinion. Miller v. N.J. State Parole Bd., No. A-5587-98 (App. Div. December 26, 2000). Certification was denied. Miller v. Parole Bd., 167 N.J. 637 (2001). Since 1998, defendant has received annual review hearings pursuant to N.J.A.C. 10A:71-3.21(f). He has received a one-month reduction in his FET following each hearing except that conducted in 2003, when he received no reduction.

II.

Defendant argues on appeal that in 1998 and all subsequent annual review hearings, information pertaining to a different inmate with a similar name, Frank T. Miller, but a different criminal history was utilized. As a consequence, defendant seeks to reopen the 1998 hearing. However, our review of the record in the matter satisfies us that the proper evidence was presented to the State Parole Board in 1998. We therefore decline to reopen that hearing. Moreover, although the existence of a mix-up was acknowledged at the 2005 hearing and again in 2007, the record is clear that the correct information was utilized as the basis for the Board's decisions in those years, as well as in all other years since 1998.

We note that defendant previously appealed the denial of parole in 1998 and the establishment of a thirty-year FET, and those dispositions were affirmed. We decline to revisit arguments that were or could have been raised in connection with that prior appeal. Polidori v. Kordys, Puzio & Di Tomasso, 228 N.J. Super. 387, 394-95 (App. Div. 1988).

III.

Defendant asserts additionally that the Parole Board failed to consider all applicable mitigating factors, alleging that he has insight into his criminal behavior, has completed all programs available to him, understands that he is an alcoholic and has completed the prison's twelve-step program, and that he has neither denied nor minimized his crimes. Thus, he claims that the Board's decision was unfair, arbitrary and capricious.

The scope of our review of that argument is narrow. We are required to give due deference to the Board's determination, and must uphold it in the absence of a showing that it is arbitrary, capricious or violative of expressed or implicit legislative policies. Curry v. N.J. State Parole Bd., 309 N.J. Super. 66, 70 (App. Div. 1998). Applying that standard, we reject defendant's position. While the record does reflect completion of various programs by defendant and an unblemished disciplinary record since 1999 - facts that are acknowledged by the Board - it fails to contain evidence that defendant has acknowledged his crimes or achieved any understanding of his reasons for committing them. Further, our review of the transcript of the June 20, 2007 hearing leads us to conclude that defendant has only the most rudimentary understanding of the twelve-step process and the techniques he must employ to remain alcohol-free. As a consequence, we are satisfied that the Board did not neglect to consider mitigating factors that would serve to further reduce defendant's FET or render him eligible for parole. Moreover, our review of the record leads us to conclude that the Board's decision to reduce defendant's FET by one month was soundly grounded on evidence in the record and was neither arbitrary nor unreasonable.

As a final matter, we find defendant's remaining arguments to have insufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

20100420

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