March 7, 2011
JAMES HYSON, APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
On appeal from a final decision of the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 31, 2011
Decided Before Judges Rodriguez and Miniman.
Appellant James Hyson, an inmate currently serving a life sentence, appeals pro se from the February 24, 2010 final decision of the State Parole Board upholding a three-member panel's denial of parole and establishing a sixty-month future eligibility term (FET). This decision followed our remand of Hyson's appeal "for further consideration in light of Hyson's twenty-two year spotless institutional record." Hyson v. New Jersey State Parole Board, No. A-2693-07T2 (App. Div. April 21, 2009) (slip op.) p.1. We affirm.
These are the relevant facts. In August 1982, Hyson pled guilty to aggravated sexual assault, N.J.S.A. 2C:14-2a(3); robbery, N.J.S.A. 2C:45-1a; and burglary, N.J.S.A. 2C:18-2. The judge imposed concurrent terms aggregating life to run concurrent to any parole violation term.
The convictions were based on the following episode. In the late morning of April 19, 1982, Hyson, who was on parole for a 1974 murder conviction, struck up a conversation with the victim, a seventy-six-year-old woman, working in her yard in Millville. He offered to help her with her yard work. The victim declined his offer and walked to her house. Hyson followed her and asked for a glass of water. She told Hyson to go to an outside spigot; and that she would get a drinking glass. As the victim turned around, Hyson grabbed her from behind and forced her into the house. He then raped her. Hyson asked the victim for money. He went through the house looking for money, and took cash from the victim's purse.
The victim positively identified Hyson in a photo array. Other witnesses who saw him near the crime scene also identified him. Hyson was arrested and charged.
Hyson had a history of convictions for murder, armed robbery, aggravated assault and battery, escape, two convictions for larceny and other offenses. The murder conviction for which he was on parole at the time of the commission of the present offense, arose from these facts. On the evening of April 4, 1974, Hyson broke into the home of his next-door neighbor, a seventy-nine-year-old woman. Hyson asked the victim for money and ordered her to remove her pants. He raped her. Hyson asked the victim for money. She gave him her pocketbook, containing at least $500. Hyson left.
The following day, the victim was found dead in her home. An autopsy revealed that she had a severe heart condition and had died of a heart attack. The Medical Examiner opined that the sexual assault by Hyson was a definite contributing factor to the fatal heart attack. Hyson was arrested for murder, rape, robbery and breaking and entering. He entered a non-vult plea to the murder charge. The remaining charges were dismissed as part of a plea agreement. The judge imposed a twenty-five to twenty-seven year term. After seven years, Hyson was paroled. Four months later, Hyson committed the present offense.
Hyson became eligible for parole for the fifth time in December 2006, after serving twenty-four years and seven months. The parole hearing officer referred the matter to a Board panel. A two-member Board panel considered Hyson's case, denied parole and referred his case to a three-member panel for the imposition of an FET outside of the administrative guidelines.
The three-member panel established a sixty-month FET, basing its decision on the same factors that the two-member panel relied on. These were: extensive and repetitive criminal record; nature of offense has become increasingly serious; presently incarcerated for a multi-crime conviction; prior parole was violated for the commission of the present offense; prior opportunities on probation and parole have failed to deter criminal behavior; prior opportunities on probation and parole resulted in violations, including alcohol abuse; prior incarcerations failed to deter his criminal behavior; insufficient problem resolution and inability to deal with conflict or harboring of his problems internally; a lack of empathy and concern for others; information documented in the case file and confidential material/professional report; and lack of an adequate parole plan or a risk assessment evaluation.
The Board noted as mitigating factors that Hyson had participated in institutional programs and in programs specific to behavior; had average to above average institutional reports; had a favorable institutional adjustment, his last disciplinary infraction occurring in 1986; and Hyson achieved minimum custody status.
Hyson requested reconsideration of both the two-member and three-member panel decisions. The panels denied the request for reconsideration. Hyson appealed to the full Board. The full Board upheld the denial of parole and the imposition of a sixty-month FET.
Hyson appealed to us. We issued a decision reversing and remanding the appeal to the Parole Board for further consideration because we found that the Board failed to give full consideration to Hyson's record as a whole, and that the FET decision was unsupported by the record. Hyson, supra, at p.14-16 (slip op.).
A three-member Board panel convened to reconsider Hyson's
case. The panel issued a written decision, dated May 20, 2009, responding to and addressing each of the issues and concerns raised by us. The panels re-determined that parole should be denied and a sixty-month FET should be imposed. Hyson appealed to the full Board. The full Board affirmed the denial of parole and the imposition of a sixty-month FET.
The Board addressed Hyson's contentions and found:
Upon review of the Notice of Decision dated May 20, 2009, the full Board found that the three-member Panel reconvened on May 6, 2009 for the specific reason of addressing the court's concerns. These concerns were that the Panel was inaccurate and incomplete in its findings concerning your accomplishments (program participation/completion). The court also noted that the Panel did not appropriately consider your twenty-two year infraction free record; that you have remained sober since 1983; that you have participated in psychological counseling; that you have attained college credits; that you have achieved a cement mason apprenticeship; that the record contains many letters of commendation; and that you have a positive relationship with a former Department of Corrections social worker whom you plan to marry. The court also stated that the Panel had not fully explained why they established a sixty-month future eligibility term and had not addressed your request to be released to a halfway house. These issues were appropriately addressed and the response to each was fully noted in the May 20, 2009 Notice of Decision.
The full Board found that you admit to remaining alcohol free since 1993 and this may be viewed as a positive improvement. The full Board noted that your last institutional infraction involving substance use was in 1985 while comments support alcohol use beyond 1985.
The full Board also found the Panel acknowledged that you have not had an institutional infraction for twenty years and six months (last infraction in August 1986), which the Panel acknowledged. However, the Panel also appropriately noted that behavior occurring in a restrictive and controlled environment while incarcerated is not necessarily reflective of future behavior in the community.
With regard to your program participation, the full Board found that the Panel noted that you have completed numerous programs and such accomplishments should be applauded.
The full Board found that the Panel based its decision on your Panel interview. You were asked a number of questions during your Panel interview targeted at determining what you have learned, retained and how your behavioral thinking was affected by your program participation. The full Board noted that your decision making, assaultive behavior, aggression, lack of empathy and the targeting of vulnerable individuals (elderly women) has played a significant role in your prior criminal record. The full Board found that the Panel determined that your responses and reactions during your Panel interview did not convince the Panel that your decision-making has changed. The full Board found that other than your own interpretation of information that is already a part of the record, you have failed to identify any factors that support your claims that the Panel has attempted to denigrate every positive action that you have tried to make. The full Board notes that the Panel reviewed and considered all relevant material facts, including your professional reports. The full Board also notes that your hearing was conducted in full compliance to the Board's Professional Code of Conduct.
The full Board notes that an arbitrary and capricious action is one that is willful and unreasoning, without consideration and in disregard of circumstances. The full board found that your appeal contains no evidence to support this claim and none exists in the record. The full board also found that the Adult Panel's decision is based on sufficient credible evidence in the record.
In conclusion, the full Board 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)." It also found that the Adult Panel's decision is based upon a determination that a preponderance of the evidence indicates that there is a substantial likelihood that Hyson would commit a crime if released on parole at this time.
On appeal to us, Hyson contends:
BOARD PANEL FINDING THAT APPELLANT POSSESSES A SUBSTANTIAL LIKELIHOOD TO COMMIT ANTHER CRIME IF RELEASED ON PAROLE IS UNSUPPORTED BY SUBSTANTIAL CREDIBLE EVIDENCE IN THE RECORD, AND IN DOING SO VIOLATED THE CLEAR LANGUAGE OF THE PAROLE ACT OF 1979, L. 1979, c. 441 § 9.
BOARD PANEL FAILED TO CONSIDER THE RECORD AS A WHOLE AND CHOSE TO USE SELECTIVE, AFFECTED AND UNSUPPORTED FACTORS AS A MAKEWEIGHT TO DEFEND ITS DECISION TO DENY PAROLE AND TO ESTABLISH A FUTURE ELIGIBILITY TERM OUTSIDE THE ADMINISTRATIVE GUIDELINES.
BOARD PANEL MEMBERS FAILED TO COMPLY WITH THE ISSUES RAISED BY THE APPELLATE DIVISION AND CHOSE TO SIMPLY REITERATE ITS PRIOR DECISION AFTER COURT REMANDED THE MATTER BACK TO THE PAROLE BOARD FOR RECONSIDERATION.
BOARD PANEL MEMBERS FAILED TO EXPLAIN, WITH ANY SPECIFICITY, WHY A THIRTY-SIX (36) MONTH FUTURE ELIGIBILITY TERM WAS "CLEARLY INAPPROPRIATE" THIS TIME AROUND, WHEN IT WAS ADEQUATE IN THE PREVIOUS THREE (3) DECISIONS 10A:71-3.21(d).
Our standard of review of administrative decisions of the Parole Board is limited, and "grounded in strong public policy concerns and practical realities." Trantino v. N.J. State Parole Bd., ("Trantino V") 166 N.J. 113, 200 (2001). "The decision of a parole board involves 'discretionary assessment of a multiplicity of imponderables . . . .'" Id. at 201 (citing Greenholtz v. Inmates of Nebraska Penal and Corr. Complex, 442 U.S. 1, 10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 667 (1979)). "To a greater degree than is the case with other administrative agencies, the Parole Board's decision-making function involves individualized discretionary appraisals." Ibid. (citing Beckwith v. N.J. State Parole Bd., 62 N.J. 348, 358-59 (1973)). Consequently, our courts may overturn the Parole Board's decision only if they are arbitrary and capricious. Trantino V, supra, 166 N.J. at 173. We will not disturb the Board's factual findings, if they "could reasonably have been reached on sufficient credible evidence in the whole record." Id. at 172 (quoting Trantino v. N.J. State Parole Bd. ("Trantino IV"), 154 N.J. 19, 24 (1998) (quoting State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988))).
Applying that standard here, we are fully satisfied that the revocation of Hyson's parole and the Board's imposition of a new sixty-month FET, was supported by substantial credible evidence in the record. Moreover, the Board has responded to each of our concerns expressed in the opinion remanding the matter for further consideration. Thus, we conclude that the Board's decision was not arbitrary nor capricious.
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