August 3, 2010
FRANK BROWN, APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
On appeal from a Final Decision of the State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 9, 2010
Before Judges Payne and Fasciale.
Frank "Shaky" Brown appeals from a denial of parole by the New Jersey State Parole Board (Board) and the establishment by it of a sixty-month future parole eligibility term (FET). He is presently seventy-four years of age and has been incarcerated since 1975, serving consecutive life terms for murder and as an habitual offender. On appeal, defendant raises the following issues:
THE NEW JERSEY PAROLE BOARD'S UNFETTERED DISCRETION TO DEVIATE FROM ADMINISTRATIVE GUIDELINES WITH NO SET TIMETABLE ALLOWS AN ARBITRARY, CAPRICIOUS AND MECHANICAL OPERATION OF THE STATUTE WHICH RESULTS IN VIOLATIONS OF THE STATUTES, CONSTITUTIONS OF NEW JERSEY AND THE UNITED STATES, AND REQUIRES REVIEW BY THIS COURT.
THE ABSENCE OF A SCHEDULE FOR FUTURE ELIGIBILITY TERMS OUTSIDE OF THE REGULATORY AND STATUTORY GUIDELINES RENDERS N.J.A.C. 10A:71-3.2[1(d)]*fn1 VOID FOR VAGUENESS AND UNCONSTITUTIONAL IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT OF THE UNITED STATES CONSTITUTION.
On December 4, 1975, defendant was furloughed from Leesburg State Prison, where he had been serving ten- to fifteen-year concurrent sentences for a string of armed robberies. While on furlough, he resided with a local minister who provided religious services to the Leesburg prison population. On December 11, 1975, defendant met with a sixty-five-year-old resident of Bridgeton, he offered her financial assistance with her heating bill, and he made arrangements to meet with her again regarding the matter that evening. At approximately 8:20 p.m., the two were observed walking away from the woman's residence by her sister. When she did not return, the State Police were contacted. The following morning, the woman's body was discovered by a local couple. An autopsy indicated that she had been stabbed in the heart and that other injuries had occurred. Semen was found in the victim's vagina and rectum. Substantial evidence linked defendant to the crime, including a blood-stained jacket found in defendant's room bearing the name "Dr. Brown," the name given by the victim to her sister in a conversation that occurred in the interval between the perpetrator's first and second visit. Also, items linked to defendant were found at the victim's house and confessions to two individuals took place.
Defendant was charged with the murder and as a habitual offender. He pled guilty to the latter charge, but was tried for murder in a four-day proceeding that concluded with a guilty verdict. At the time of the murder, defendant had been adjudicated delinquent on two occasions as a minor and, in the period between 1956 and 1968, he had been convicted as an adult of twelve indictable offenses that included armed robbery, robbery, breaking and entering, grand larceny, and receipt of stolen property. Although defendant was periodically paroled, he was always rearrested for the commission of new crimes in a period of less than one year. Thus, defendant has spent virtually no time outside of a correctional institution since 1956.
On August 31, 2000, defendant was denied parole, and on November 24, 2001, a FET of 180 months was imposed. He became eligible again for parole on April 12, 2008. An initial hearing occurred on December 21, 2007, after which the hearing officer referred defendant's case to a Board panel, based on the following factors: the serious nature of defendant's offense, his prior criminal record, the nature of his crimes, his prior failed opportunities on parole to avoid further criminal behavior, prior parole violations, the fact that prior incarcerations had failed to deter defendant's criminal behavior, his commission of a crime while incarcerated, and his unfavorable interview with the hearing officer, at which time defendant denied his guilt and minimized his conduct. See N.J.A.C. 10A:71-3.11(b) (giving a non-exhaustive list of factors to be considered by a Board panel or the Board in making a parole decision); N.J.A.C. 10A:71-3.15(b) (requiring referral to a Board panel when the underlying crime is murder).
A two-member Board panel considered defendant's case on December 27, 2007, and the panel referred it to the full Board pursuant to N.J.S.A. 30:4-123.55f. On May 7, 2008, the full Board denied parole and referred defendant's case for the establishment of a FET. In doing so, it relied on the same factors as had the hearing officer and noted additionally that defendant had committed an institutional infraction since his last parole hearing; he exhibited insufficient problem resolution, including a lack of insight into his criminal behavior; and he minimized his conduct. As mitigating factors, the Board found that defendant had participated in institutional programs, including behavior-specific programs, had average to above average institutional reports and had attempted to enroll and participate in programs to which he was not admitted.
On August 13, 2008, the full Board established a sixty-month FET, relying on the same positive and negative factors that it had utilized in denying parole. A lengthy decision was issued detailing the basis for the Board's determination. The decision concluded with the following statement:
In assessing an appropriate future parole eligibility term, the Full Board may establish a future parole eligibility date, which differs from the presumptive schedule if the presumptive schedule is clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior. In making the determination that the presumptive future parole eligibility term is clearly inappropriate, the Full Board shall consider the factors enumerated in N.J.A.C. 10A:71-3.11. N.J.A.C. 10A:71-3.21(d).
The Full Board is of the opinion that the factors supporting the denial of parole, collectively, are of such a serious nature as to warrant the setting of a future parole eligibility term which differs from the presumptive term of twenty-seven (27) months (- 9 months). . . . .
Based upon a comprehensive review of your entire record, it is clear that you continue to remain a substantial threat to public safety. . . .
The Full Board believes that during your thirty-two (32) years of incarceration you have
* been unable to identify the causes of your criminal behavior and have failed to develop adequate insight into your criminal personality characteristic; and
* failed to develop adequate insight into the underlying motivations to your criminal personality characteristic. Your comments to the Board panel in an effort to explain what you believe to have been the motivation for you living an anti-social and criminal lifestyle in the years preceding your present offenses included the implausible assertion that you committed numerous robberies and were incarcerated several times in a purposeful manner. Specifically, that you desired to go to prison to find the man who allegedly killed your girlfriend. In regards to your present offense of Murder which a jury found you unanimously guilty of, you claimed throughout your hearing that you were wrongfully convicted and that you were solely found guilty due to flaws in the justice system. Beyond making those contentions, you could not sufficiently explain to the Full Board what specifically compelled you to live a maladaptive lifestyle for the majority of your life; and
* continued to minimize your lifelong criminal behavior, and
* continued to deny the heinous offense for which you are presently incarcerated.
Accordingly, the Full Board has found that setting any term less than a sixty (60) month future parole eligibility term would be wholly inconsistent with the conclusion that, after thirty-two (32) years of incarceration, you have not shown the requisite amount of rehabilitative progress in reducing the likelihood of future criminal activity.
Defendant filed an administrative appeal, and it was denied on May 20, 2009. This appeal, filed prior to defendant's exhaustion of administrative remedies, was then deemed ripe.
The Supreme Court has held that, in addressing the validity of the Board's determinations in a case such as this, we must focus on "(1) whether the agency's action violates express or implied legislative policies, 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 v. N.J. State Parole Bd., 154 N.J. 19, 24 (1998) (Trantino IV) (citing Brady v. Dept. of Personnel, 149 N.J. 244, 256 (1997)).
According to the Trantino IV Court, "[t]he standard of review is strongly influenced by the fact that the substantive principles governing parole do not confer a constitutional right or entitlement" but nonetheless, "there is by statute a 'protected expectation of parole in inmates who are eligible for parole.'" Id. at 24-25 (quoting N.J. State Parole Bd. v. Byrne, 93 N.J. 192, 208 (1983) (other citations omitted)). The Court recognized that Board determinations constitute "individualized discretionary appraisals," id. at 25 (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)), but it held that the standard of review applicable to such determinations was no more exacting than that applicable to other administrative decisions. Ibid.
As in Trantino, defendant was sentenced pursuant to Title 2A, not the presently applicable Title 2C. Parole fitness, however, is governed by the Parole Act of 1979, N.J.S.A. 30:4-123.45 to -123.70. The current standard for Title 2A inmates permits a consideration of rehabilitation, but only "as it affects individual deterrence; i.e. whether there is a substantial likelihood that the inmate will commit a crime if released on parole." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 561 (App. Div. 2002) (citing Trantino IV, supra, 154 N.J. at 27). Following our review of the Board's decision in this matter, we are satisfied that the Board applied the appropriate standard in reaching its decision, and that it considered the applicable factors as set forth in N.J.A.C. 10A-71-3.11(b). We thus find that the Board followed the law.
We find as well that substantial evidence supported the findings upon which the Board premised its decision to deny parole and to establish a sixty-month FET. In this regard, we note particularly the extent of defendant's prior criminal history and the serious nature of the crimes that he committed; his inability to remain offense free for any substantial period while on parole; the fact that the present crime was committed while defendant was on furlough; the nature of that crime; and defendant's unwillingness to acknowledge culpability for the five robberies committed in 1958 and 1959, the first of which occurred less than two months after defendant was released on parole, or for the murder committed in 1975. We note as well the opinion of examining psychologist Richard J. Mucowski that:
Parole is not recommended at this time. [Defendant] refuses to accept his prior alcohol abuse. Mr. Brown's potential for relapse is significant given his psychological profile and his inability to control his feelings in the face of unresolved psychological issues. These things may cause him to conduct himself in unpredictable ways in the face of life's pressures outside of prison. While he lives in a structured prison environment he does not have to face the pressures of interpersonal relationships that he would face outside the prison.
Nothing suggests to us that in applying the law to the facts, the Board reached a conclusion that could not reasonably have been made on the basis of the factors that the Board found relevant. The Board's review in this case was extensive, and its analysis of relevant statutory factors was painstaking. We regard the Board's conclusions to have had a solid foundation both in law and fact. We reject as unfounded any argument that the Board acted arbitrarily in this matter or abused its discretion in rendering its decisions. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (Trantino VI); Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971).
Defendant challenges the Board's determination to impose a FET in excess of administrative guidelines as unconstitutional because the Board was not guided by appropriate standards. In that regard, he focuses on N.J.A.C. 10A:71-3.21(d), which provides:
A three-member Board panel may establish a future parole eligibility date which differs from that required by the provisions of (a) . . . and (c) above if the future parole eligibility date which would be established pursuant to such subsections is clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior.
In making the determination that the establishment of a future parole eligibility date pursuant to (a) . . . and (c) above is clearly inappropriate, the three-member panel shall consider the factors enumerated in N.J.A.C. 10A:71-3.11.
Although this paragraph, unlike those that precede it, does not contain specific time frames, we nonetheless do not regard it as standardless, finding that the requirement that the panel or full Board consider the factors enumerated in N.J.S.A. 10A:71-3.11 provides appropriate guidelines for action and a proper limitation on the Board's discretion. Thus, we conclude that the provision is not unconstitutional. Johnson v. Paparozzi, 219 F. Supp. 2d 635, 642-43 (D.N.J. 2002).
As a final matter, we agree with the State that the Board appropriately considered defendant's age and physical condition in making its decisions in this matter.