On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Messano and LeWinn.
Thomas W. Bailiff appeals from the August 6, 2008 final decision of the New Jersey State Parole Board (Board), denying his application for parole and setting a sixty-month future eligibility term (FET). We affirm the denial of parole but reverse the sixty-month FET and remand that determination for further proceedings.
In 1982 three indictments were returned against appellant. The first charged him with purposeful and knowing murder, N.J.S.A. 2C:11-3; the second charged him with robbery, N.J.S.A. 2C:15-1; and the third charged him with theft from the person, N.J.S.A. 2C:20-2(b)(2)(d). Appellant went to trial on the latter two charges and was convicted of the lesser-included charge of theft on the robbery indictment and of the theft from the person charge. He entered a plea of guilty to the murder indictment.
On January 21, 1983, defendant was sentenced on all three convictions as follows: (1) a term of life imprisonment with a twenty-year parole ineligibility period on the murder charge; and (2) two concurrent terms of five years of imprisonment with a two-and-one-half-year parole ineligibility period on the theft charges.
At appellant's first parole hearing in March 2002, the panel denied parole and established a thirty-six month FET. In April 2004, parole was again denied and a sixty-month FET was imposed.*fn1
On March 12, 2007, appellant appeared before a two-member Board panel, which denied parole and forwarded the case to a three-member panel to establish the FET. In its Notice of Decision, the two-member panel erroneously identified appellant's matter as a "2A Case" (referring to the predecessor statute to the current criminal code, now codified at N.J.S.A. 2C:1-1 to 104-9). At some point, the two-member panel issued an amended Notice of Decision, backdated to March 12, 2007, correcting the designation of appellant's case as a "2C Case."
The three-member panel issued a decision on September 19, 2007, establishing a sixty-month FET. The panel reviewed the facts surrounding appellant's murder charge as well as his participation in various programs and educational courses during his incarceration, and reached the same conclusions as the two-member panel.
Regarding the murder offense, the panel noted that appellant and a co-defendant enticed a female into their vehicle, drove for a while during which appellant, who was under the influence of "[a]lcohol, marijuana and mescaline[,]" engaged in sex with the female. Appellant then experienced a hallucination in which the female appeared to him as his former girlfriend with whom he had just broken up and for whom he "had a lot of hatred[,]" and he fatally stabbed her.
In its decision, the panel noted that appellant was "presently incarcerated for three (3) offenses in regards to three (3) separate incidents." The panel concluded that those three offenses "demonstrated [appellant's] choice to commit separate distinct criminal acts."
The panel determined that appellant "ha[d] yet to identify all of the underlying motivations to the violent behavior [he] exhibited on [the date of the murder]." The panel noted appellant's statement that he "now realize[s] that at the time of the [m]urder [he] 'needed professional help but [he] did not realize it at the time.'" The panel was "unclear" whether appellant was "inferring . . . that [he] had a significant substance abuse problem or if [he] had emotional issues in regards to [his] ex-girlfriend." The panel concluded:
Based upon the statements that you made at your Board panel hearing, it is clear that you are unable or unwilling to change your thought process as it relates to the murderous behavior you exhibited on [the date of the murder]. There is no indication in your parole records nor in the contents of your parole hearing that you have come to any understanding as to what the [sic] underlying motivations for killing your victim. After nearly twenty-five (25) years of incarceration, you are unable or ...